Arguellouin Bias

July 18, 2014

 

INTRODUCTION

 

 

Judge Arguello presiding over proceedings related to defendant's allegations of judicial misconduct against her is a violation of the defendants’ right of due process. The Supreme Court of The United States (SCOTUS), in the case In re: Murchison, 349 U.S. 133 (1955), held that a trial judge who presides over a trial/proceeding when they have an interest in the outcome is a 5th Amendment violation of due process. In the case of the IRP6, Judge Arguello, not only violated the IRP6 defendants 5th Amendment right against self-incrimination when she coerced them to testify in their criminal trial against their will, but served up a second 5th Amendment violation, this time a denial of due process when she presided over subsequent judicial misconduct proceedings related to the allegations of coercion that were levied against her by the IRP6. Like the trial judge in Murchison, Judge Arguello cannot be a judge in her own case and try matters which she has an interest in the outcome.

 

THE MURCHISON CASE

 

In 1955, Michigan law authorized its judges to act as one-man grand jury where the judge could compel witnesses to appear before him in secret proceedings to testify about suspected crimes.  In Murchison, the judge charged two witnesses with contempt, one for perjury and the other for refusing to answer questions. After charging/indicting them in a secret chamber hearing, he ordered them to appear in a public trial in open court. The judge convicted them and sentenced them on contempt charges.  SCOTUS had to determine whether the defendant's due process rights were violated by virtue that the same judge who presided over their contempt trial/hearing, had also served as the "one-man grand jury" from which the charges proceeded. This is akin to the classic tyranny-style case of the same person acting as judge, jury and executioner. SCOTUS held that this proceeding violated the 5th Amendment right of due process, since a trial by a judge who has an interest in the outcome is not a fair trial. SCOTUS, in their opinion stated:

 

"A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of justice has always endeavored to prevent event the probability of unfairness. To this end no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome. Circumstances and relationships must be considered. This Court has said, however, that 'every procedure which would offer a possible temptation to the average man as a judge...not to hold the balance nice, clear and true between the State and the accused, denies the latter due process of law'...Such a stringent rule may sometimes bar trial judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties. But to perform its high function in the best way, 'justice must satisfy the appearance of justice.'" Other key pronouncements by the Murchison Court are:

 

1) A single "judge-grand jury" is even more a part of the accusatory process than an ordinary lay-grand juror. Having been a part of that process a judge cannot be by the very nature of things, wholly disinterested..."

 

2) As a practical matter it is difficult if not impossible for a judge to free himself from the influence of what took place in his...secret session.

 

3) In find White (a defendant) guilty...the trial judge said "there is one thing the record does not show and that was Mr. White's attitude, and I must say that his attitude was almost insolent at times...but it was defiant, and I want to put that on the record.

 

4) There were no public witnesses upon who [defendant's] could call to give disinterested testimony concerning what took place in the secret chambers of the judge.

 

5) If the charge should be heard before [the trial judge], the result would be either that the defendant must be deprived of examining or cross-examining him or else there would be the spectacle of the trial judge presenting testimony upon which he must finally pass in determining the guilt or innocence of the defendant.

 

Justice's Reed, Minton and Burton argue in their dissent that there was nothing unconstitutional about the single judge grand jury because other public officials aided the judge and there was a transcript of the testimony.  This analysis seems short-sighted because it appears that the justice's assume that other public officials would provide disinterested testimony on behalf of the defendants. A transcript cannot measure bias of a judge, who, as the majority mentions cannot be cross-examined. As you will see in the IRP6 case comparison, there would be no transcript that could provide any insight into what transpired between the judge and the defendants.

 

THE IRP6 CASE COMPARISON

 

In the IRP6 case, the defendants’ were summoned to a sidebar proceeding before Judge Arguello. The other parties to the sidebar were Judge Arguello, Assistant United States Attorney's (AUSA) Matthew Kirsch and Suneeta Hazra, who are our adversaries, and the court reporter. A conference table microphone was placed in the center to obviously record the audio statements, but the transcription and audio of the bench conference is mysteriously missing. The lack of recording transformed the sidebar proceeding into a secret session, just like the Murchison case. The IRP6 asserted, during the sidebar proceeding, that a petulant Judge Arguello violated their 5th Amendment right against self-incrimination by coercing them to testify because other subpoenaed witnesses failed to appear as scheduled. The IRP6 were prejudiced in front of the jury after being forced to take the stand. Threatening and intimidating defendants to testify is a cardinal sin for a judge. If a judge were to admit to such an egregious constitutional transgression, it would not only be terribly embarrassing, but the fallout could have ruinous effects on their judicial career and possibly destroy the possibility of further career advancement. This type of situation puts a powerful judge in a very conflicted position and presents her with two options:

 

Option 1 - Judge Arguello could admit to her mistake, declare a mistrial and suffer the political consequences of her actions. This would be the honorable choice.

 

Option 2 - Judge Arguello could abuse her power by using the secret session to her advantage and lie about what she said, then conspire to conceal the transcript and recordings of the sidebar, let the defendant's suffer a wrongful conviction, and finally sentence them to long prison terms.

 

Judge Arguello chose Option 2. It was not a fair proceeding and IRP6's right of due process was violated when Judge Arguello presided over matters concerning the sidebar, including IRP6's request for a mistrial and for the unedited sidebar transcripts to be released to them. As SCOTUS recognized in Murchison, Judge Arguello cannot be a judge in her own case and should not have been permitted to try cases or preside over matters where she has an interest in an outcome that could implicate her engaging in egregious judicial misconduct. When referencing the bulleted pronouncements by the Murchison Court above, Judge Arguello, could not by the very nature of things, be wholly disinterested in the outcome. There was no way that Judge Arguello could free herself from the influence of what took place in the secret sidebar proceeding.  This is substantiated in court records where Judge Arguello accused the IRP6 of intentionally orchestrating the sidebar issue for the express purpose of gaining a mistrial.  In essence, Judge Arguello was stating that the IRP6 were lying about statements she made at the sidebar. One of the defendant's in the Murchison case faced the same accusation by the trial judge. Government witnesses could not be relied upon to provide disinterested testimony of what they heard at the sidebar as they are adversaries and have a conflict of interest in their case being dismissed. To that end, the Government remained silent on what they heard during the sidebar. Retired federal appellate Judge H. Lee Sarokin, who commented on the IRP6 case in the Huffington Post, stated that the government's silence spoke volumes.

 

When Judge Arguello refused to declare a mistrial and would not turn over the unedited transcripts to resolve the dispute at the sidebar to clear her name, we had no doubt that we were dealing with a truly dishonorable and biased judge. We had already seen plenty of signs of her dishonor when she refused to allow our key expert witness, Andrew Albarelle of Remy Staffing, testify on our behalf, would not assist us in the enforcement of subpoena's, and called our business a scam long before trial started. Additionally, Judge Arguello had wrongly sentenced my sister Lawanna Clark to prison for allegedly lying to a grand jury about withdrawing money from our business bank account. Lawanna's conviction was predicated on her alleged signature on the bank withdrawal slip. After trial, a highly-respected handwriting expert analyzed the signature and found it was not Lawanna's signature. That didn't matter to Judge Arguello, she still sent my sister to prison even though her innocence was proven. Given Judge Arguello's history, how could she possibly be trusted to protect our rights after accusing the IRP6 of intentionally lying about her actions at the sidebar? She couldn't, and court records show that her bias was perpetuated throughout the remainder of the trial and into post-trial proceedings, including bond pending appeal.

 

BOND PENDING APPEAL

 

The IRP6 were free on their personal recognizance prior to trial and maintained possession of their passport for two years leading up to trial because they were not considered a flight risk. During that two years, none of the IRP6 missed a single court date and some of them travelled internationally. However, after the government filed a motion requesting that our bond be denied based on false arguments that we were a flight risk based on knowing the actual length of our sentences (7 to 11 years) and that there were substantial unaccounted assets available which we could use for the purpose of fleeing. Judge Arguello knew the government's assertions were tainted with lies, but she drunk the poison Kool-Aid anyway. Court records show that the Government's own forensic accountant testified that wages were paid directly to contract employees. Furthermore, AUSA Kirsch stated in his opening statement that none of the IRP6 got wealthy from the alleged fraud. Judge Arguello personally witnessed the accountant's testimony but callously disregarded it. We were made aware during our arraignment that we were facing up to 20 years, making Judge Arguello's acceptance of that argument utterly ridiculous. Given her bias and hatred towards us, she was going to imprison us by any means necessary. The final factor for consideration for bond pending appeal was whether there was a substantial question of law or fact that would likely result in a reversal of our conviction. According to 10th Circuit law, when a transcript is missing where the appellate court can't determine whether or not the judge committed prejudicial error, the case shall be reversed. Judge Arguello also ignored this among other issues like denying our right to put on a complete defense by denying our expert witness. A biased Arguello trampled and spit on our constitutional rights at every turn.

 

EVIDENCE OF BIAS

 

As the Murchison Court stated "every procedure which would offer a possible temptation to the average man as a judge...not to hold the balance nice, clear and true between the State and the accused, denies the [accused] due process of law". Judge Arguello, being the judge in her own case, failed to balance the scales of justice in a fair and even manner because she had an egocentric interest in the outcome. In fact, Arguello piled a false weight of bias and prejudice against the IRP6, robbing the jury of their power and gained full control as the judge, jury and executioner. Judge Arguello chose to double-down on her graft and corruption to convict us instead of disqualifying herself based on her personal bias against us.  Federal law, specifically 28 U.S.C. 455, requires judges to disqualify themselves from "any proceeding in which when his impartiality might reasonably be questioned" and also "where [the judge] has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding." Judge Arguello clearly had personal knowledge of what happened at her "secret" sidebar proceeding. Normally, personal knowledge gained in judicial proceedings is excluded, but under the Murchison-like circumstances, that would not apply.

 

In discussing judicial disqualification, the 10th Circuit Court of Appeals, in the case of Nicholas v. Alley, 71 F.3d 347, 351 (10th Cir. 1995), held that A judge must recuse himself "in any proceeding in which his impartiality might reasonably be questioned"...The court observed that an objective test is required to review the judge's outward manifestations of bias from which reasonable inferences drawn, rather than trying to ascertain what was the judge's actual state of mind. Certainly, Arguello's outward manifestation was her accusation that the IRP6 manufactured the complaint of coercion for the purpose of gaining a mistrial. Court transcripts contradict Arguello's self-serving accusation. 

 

The Honorable Judge H. Lee Sarokin (retired, 3rd Circuit Court of Appeals), who is a Huffington Post Contributor, reviewed available IRP6 trial transcripts and debunked Arguello's assertions that the IRP somehow orchestrated the allegations of coercion against her, stated as part of his three-part series about the IRP6 trial on the Huffington Post: "So it is apparent that this was not some afterthought, some trial strategy, but rather a simultaneous assertion by the defendants immediately following the side-bar conference." Sarokin also discussed other problems such as Arguello exhibiting frustration, her failure to make an inquiry regarding defendant's waiver of his right not to testify, and allowing the IRP6 defendant to repeatedly plead the Fifth Amendment during cross-examination on every question after the complaint of being forced to testify had been lodged against her --- "It is difficult to imagine anything more prejudicial", added Sarokin. Sarokin went on to conclude that "This case raises numerous other serious questions about the prosecution, conviction and incarceration pending appeal of these defendants".

 

With these clear "outward manifestations" of Judge Arguello's bias, anyone could undoubtedly question her impartiality. The IRP6 filed a motion for Judge Arguello to recuse herself prior to trial because of her close, personal friendship with Holland and Hart attorney Greg Goldberg, who is also a close personal friend of the prosecutor in the IRP6 case, Matthew T. Kirsch. Arguello ignored and quickly denied the motion, stating she didn't know Goldberg well, irrespective that he said he knew her quite well in the Denver Post newspaper.

 

Goldberg, who had very recently departed the Colorado U.S. Attorney's Office where he and Kirsch worked closely together, HAND-DELIVERED a letter to Kirsch making specific recommendations of how the IRP6 should be criminally prosecuted. Why would Goldberg feel the need to personally deliver the letter? Goldberg's apparent role in representing some of the staffing companies in civil litigation is not completely clear. However, court records show that Goldberg was intimately and improperly involved in the criminal investigation, when he received a fax from FBI John Smith regarding a newspaper article that was leaked in violation of court order sealing the search warrant affidavit. Court records also show other untoward actions of Smith and Goldberg when Smith directed staffing companies involved in business dealings with IRP Solutions to contact Goldberg. Why wouldn't Smith tell staffing companies to contact Kirsch, the prosecutor on the case? Why would Smith fax Goldberg a newspaper article and direct companies to contact him unless Goldberg was playing an active role in the investigation and prosecution? This implicates impropriety on Kirsch's part, which warranted him being disqualified from prosecuting the case and opens the door to possible collusion between Goldberg, Kirsch and Arguello to convict and imprison the IRP6.

 

CONCLUSION

 

The Murchison's Court opined that the "circumstances and relationships" must be considered when evaluating judicial bias. Murchison's pronouncement that "justice must satisfy the appearance of justice" falls woefully short in the IRP6 case with the appearance of nepotism and cronyism between Arguello, Goldberg and Kirsch. The facts and evidence show that bias was a huge factor in the IRP6 case. Arguello should have disqualified herself not only from presiding over the sidebar, but from the entire trial. The IRP6 did conduct a quasi-examination of Judge Arguello through objecting about coercing our testimony and requesting the unedited transcript. Judge Arguello responded with a myriad of suspicious denials, excuses, speculation and accusations against the IRP6. The proper, fair and honest thing for a judge to do would have been to grant release of the transcript or a hearing to find the truth to resolve the issue.  But when a judge is trying a case in which she has an interest in the outcome, she is conflicted between protecting her personal interests and the interests of justice. The result, as held by the Murchison Court is an unfair trial. I would like to end with a quote from SCOTUS, in the case of Marshall v. Jerrico Inc., 446 U.S. 238 (1980), regarding bias in judicial proceedings:

 

"The Due Process Clause entitles a person to an impartial and disinterested tribunal in both civil and criminal cases. This requirement of neutrality in adjudicative proceedings safeguards the two central concerns of procedural due process, the prevention of unjustified or mistaken deprivations and the promotion of participation and dialogue by affected individuals in the decision making process...The neutrality requirement helps to guarantee that life, liberty, or property will not be taken on the basis of an erroneous or distorted conception of the facts or the law...At the same time, it preserves both the appearance and reality of fairness, 'generating the feeling, so important to a popular government, that justice has been done", by ensuring that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him."

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