In Part 1 of this series The Supreme Court of the United States (SCOTUS) opined through their written opinions how the Sixth Amendment guarantees the right to a public trial for the accused and opens the doors of the court to the public. Additionally, I discussed how the Court Reporter's Act is rooted in the Sixth Amendment as it requires a court reporter to record verbatim everything that transpires in a court of law and make it available for public access and inspection by any person at the clerk of court's office. While the Sixth Amendment opens the doors, the First Amendment guarantees the public's right of access. If any member of the public is denied access to the court or to court records, their First Amendment right of access to the courts are violated. If a defendant or appellant, as in the case of the IRP6, is denied access to the court or inspection of records to challenge a violation of their constitutional rights, not only is their 1st Amendment right of access to the courts violated, but also the 5th Amendment right of due process. My discussion begins with an 11th Circuit case where the circumstances surrounding a request for court records mirror's the IRP6 case. Fortunately for that appellant, the court granted him access to the original records and upheld his constitutional rights. Senior Circuit Judge Thomas A. Clark provided his thoughts and the opinion of the 11th Circuit in the written opinion.
In the 11th Circuit case of Hansen v. United States, 956 F.2d 245 (1992), an inmate, pursuant to the Court Reporter's Act, challenged the judgment of the United States District Court for the Middle District of Florida, which denied his request for a copy of the court reporter's original audio tape of the proceeding so that he could prove that a STATEMENT MADE BY THE TRIAL JUDGE violated his constitutional right. The district court judge, like Judge Arguello in the IRP6 case, denied his request for the original records. In an opinion for the 11th Circuit appellate panel, Judge Clark reversed the denial of the appellant's request for a copy of the court reporter's original audio tape of the proceeding, holding that appellant was entitled ACCESS to the court reporter's original records because he had made a showing that the records were necessary to the resolution of the issue of whether the trial judge made prejudicial statements that a longer sentence was being imposed in retaliation of him exercising his constitutional right to a jury trial vice taking a plea deal. The 11th Circuit, agreeing with the 7th Circuit Court of Appeals, concluded that:
"Denying access to court files...given the statutory inspection rights granted by the [Court Reporter's Act], works an invidious discrimination which cannot pass muster under the equal protection pregnant of the Fifth Amendment's due process clause when the important substantive CONSTITUTIONAL RIGHT OF ACCESS TO THE COURTS is implicated."
Pursuant to the Court Reporter's Act, the IRP6 requested the original unedited transcript, original shorthand notes and original audio tapes to prove a threatening STATEMENT WAS MADE BY JUDGE ARGUELLO during trial to force them into testifying, thereby violating their Fifth Amendment right against self-incrimination. Judge Arguello denied repeated requests for the unedited transcripts and audio tape and unlike Judge Clark in the 11th Circuit, the 10th Circuit Court of Appeals ignored SCOTUS and the Constitution and denied the IRP6 the original records to prove their claim. The IRP6 have languished in prison for the past 22 months, suffering invidious discrimination, while nothing has been done to cure violations of their 1st and 5th Amendment rights. The public and the press also have a 1st Amendment right of access to court records. Justice advocacy organization, A Just Cause (AJC), also went to the courthouse to inspect the original records as a member of the public and the clerk's office denied them their lawful and constitutional right to inspect the records. However, court records show that Federal Judge R. Brooke Jackson, who presided over AJC's civil suit against the court reporter, was granted access to the records by the clerk's office. This is blatant class discrimination against the accused and the public. Sadly, this is reminiscent of the same type of discrimination that was a part of America's dark civil rights era where restaurants would serve whites but deny service to blacks. In the IRP6 case you have to be a member of the elite judiciary class to receive service from the court clerk's office while service to the accused and public is denied. This is a clear violation of the law and the U.S. Constitution. We will now let SCOTUS give us their thoughts.
WISDOM OF SCOTUS
1. Johnson v. Avery 393 U.S. 483 (1969), held that the right of access to the courts...is founded in the [5th Amendment] Due Process Clause and assures that no person will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights.
2. Wolff v. McDonnell, 418 U.S. 555 (1980) states: '[i]t is fundamental that access...to the courts for the purpose of presenting their [inmates] complaints may not be denied or obstructed.' Wolff v. McDonnell, 418 U.S. 539 (1974)
3. Richmond Newspaper v. Commonwealth of Virginia, 448 U.S. 555 (1980) makes the following pronouncements:
"Public access to court proceedings is one of the numerous 'checks and balances' of our system, because 'contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power."
"I agree that the First Amendment protects the public and the press from abridgement of their rights of access to information about the operation of their government, including the Judicial Branch;" (Justice Stevens, concurring opinion)
"[Our] decisions...afforded by the First Amendment...are bottomed upon a keen appreciation of the structural interest served in opening the judicial system to PUBLIC INSPECTION...Closed trials breed suspicion of prejudice and arbitrariness, which in turn spawns disrespect for the law. Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice."
4. Press Enterprise v. Superior Ct. of California, 478 U.S. 1 (1986), stated:
The constitutional protection for the right of access...is found in the First Amendment, rather than the public trial provision of the Sixth...The 'common core purpose of assuring freedom of communication on matters relating to the functioning of government,' 'What is at stake here is the societal function of the First Amendment in preserving free public discussion of government affairs. No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve their own destiny.' 'Underlying the First Amendment right of access to criminal trials is the common understanding that a major purpose of that Amendment was to protect the free discussion of governmental affairs. By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government.' (Justice Stevens, concurring opinion).
FINAL THOUGHTS AND CONCLUSIONS
As SCOTUS mentions above, and rightfully applied by Senior Judge Clark in the 11th Circuit, NO PERSON will be denied the opportunity to present to the judiciary allegations concerning violations of fundamental constitutional rights. While the IRP6 did present those allegations as part of their appeal, they did so without the complete record because the district court clerk's office violated their First Amendment right of access to original court records, which precipitated an additional violation of our Fifth Amendment right to due process. This is not a complicated matter. Senior Judge Thomas Clark and the 11th Circuit recognized and applied the wisdom of SCOTUS and the Constitution in upholding the rights of Hansen to have the original court records to challenge the statements of the judge.
Retired federal Judge H. Lee Sarokin of the Huffington Post, analyzed some of the edited court transcripts in the IRP6 case and found that the IRP6's 5th Amendment constitutional right was violated and implicitly ponders the inordinate delay of the appeals court in reaching a decision. Sarokin opined the following in the Huffington Post:
"The Court of Appeals [10th Circuit] has ample opportunity to accept the [IRP6's] factual versions as true and be guided accordingly in their ruling. Here are the uncontested facts upon which the Court could reach a determination that the right against self-incrimination was actually violated by the trial court even without the critical transcript."
After listing the ten (10) facts, Sarokin concluded: "With all of this uncontroverted evidence, the Court of Appeals certainly has enough evidence to conclude that the right against self-incrimination indeed was, violated by the trial court;" To view the 10 uncontested facts listed by Judge Sarokin, go to www.huffingtonpost.com/judge-h-lee-sarokin/ and look for the posting titled "The Case of the Missing Transcript".
Judge Clark, Judge Sarokin and SCOTUS concluded that denying access to court files and/or compelling the testimony of defendants in their criminal trial is clear violation of our First and/or 5th Amendment rights. We have been wrongly imprisoned for 22 months while we await the opinion of the 10th Circuit Court of Appeals to be released by the clerk's office.