Complaint of Misconduct

August 5, 2014

Appellants Gary L. Walker, David A. Banks, Clinton A. Stewart, Demetrius K. Harper, David A. Zirpolo and Kendrick Barnes (hereafter, IRP6) allege that one or all of the judges on our appellate panel (Appeal nos. 11-1487, 11-1488, 11-1489, 11-1490, 11-1491, 11-1492), the Honorable Bobby R. Baldock, the Honorable Harris L. Hartz and the Honorable Jerome A. Holmes have conspired with the 10th Circuit clerk of court, Elizabeth Shumaker to violate our 5th Amendment right of due process by deliberately delaying the processing of our appeal in retaliation for us exercising our First Amendment right of free speech. The IRP6, through justice advocacy organization, A Just Cause (AJC), have proclaimed their innocence and levied strong public scrutiny and criticism of what they consider wrongful and malicious actions and motives of the federal courts and judicial officials in Colorado, including trial Judge Christine M. Arguello, prosecutors from the Colorado U.S. Attorney's Office, and clerk's office employees from the District of Colorado and 10th Circuit. When asked about the status of our appeal through our attorneys, AJC, and media representatives, 10th Circuit clerks and judicial assistants from Judge Hartz and Judge Holmes provided markedly different, contradictory claims on the status of our appeal.

 

Judge Hartz's judicial assistant, Claudette, forcefully asserted to AJC's Ethel Lopez that the IRP6 case was completed and returned to the clerk's office in Denver in May 2013 and the Judge Hartz was no longer working on the case. Deputy clerk, Doug Cressler affirmed Claudette's claim that the case was returned to Denver in May 2013, but later retracted and told Ms. Lopez that the case was still with the entire appellate panel. 

 

IRP6 attorney Tina Glandian, in February 2014, spoke to the clerk's office and was told that the case was with the writing judge, intimating that the decision was made and that the clerk's office was simply awaiting the formal opinion. If this were true, certainly it would not take a judge 5 months to write an opinion. Court records bolster the validity of our complaint since all three judges have written numerous opinions on other cases received after the IRP6 case, many of which notice of appeals were filed in 2013 and decisions made the same year. Records show, Judge Baldock has written opinions for cases 13-3146, 13-3200, 13-3241, 13-1222, 13-1132, 13-3132, 13-4076, 13-1010, 13-9554, 13-4005, and 13-3101. Judge Hartz has written opinions for cases 13-2019, 13-1343, 13-9503, 13-1513, 13-5040, 13-2023, 13-2073, 13-5064, 13-2093, and 13-5173. Judge Holmes has written opinions for cases 13-3065, 13-7061, 12-2048, 13-3109, 12-1111, 13-5096, 13-2022, 13-7085, 13-6062, and 13-9543.

 

The promptness exhibited by Baldock, Hartz and Holmes in deciding these cases is consistent with the 10th Circuit's reputation for being the fastest circuit in the country in deciding appeals and aligns with the Practitioner's Guide to the United States Court of Appeals for the Tenth Circuit (Ninth Revision 2014). The Guide states: "During the statistical year ending June 30, 2013, the median time from filing the notice of appeal or petition for review to entry of decision for ALL appeals and agency proceedings was 8.2 months." The fact that 32 months have passed since the notice of appeal was filed and 18 months since final briefs were submitted on January 22, 2013, gives rise that some of the most capable and efficient appellate judges in the most capable and efficient circuit in the country are intentionally delaying the decision in our case. It is plausible to conclude that the panel's actions in the IRP6 case are motivated by the federal courts in Colorado being publically maligned by the appellants and AJC. Their actions, consistent with 28 U.S.C. 351(a), are "prejudicial to the effective and expeditious administration of the business of the courts."

 

While complaints of judicial misconduct don't allow merits-based challenges for reasons of misconduct, we provide findings from other judges who have reviewed our case to support the truth of the complaint asserted --- a deliberate delay of our appeal.  It is undisputed in court documents from the trial of the IRP6 case, another independent judge in the District of Colorado and a third independent review of court records from a formal federal appellate judge that alleged prejudicial statements from Judge Christine M. Arguello coercing defendants to testify are MISSING from the court transcripts that were provided to the appellate panel. Coercion of appellants to testify is a violation of their Fifth Amendment right against self-incrimination.  It is also undisputed that well-settled case law of the 10th Circuit that it is REVERSIBLE ERROR "when the unavailability of a transcript makes it impossible for the appellate court to determine whether or not prejudicial error was committed with regard to the challenged action." U.S. v. Haber, 251 F.3d 881, 889-90 (10th Cir. 2001).

 

Regarding her alleged statements of coercion, trial transcripts show Judge Arguello stated "Unfortunately this portion of the sidebar was not transcribed by the reporter." and "I don't know what my exact phrasing was." Judge R. Brooke Jackson, who took judicial notice of trial records, stated "No statement like that which was recalled by the court or that which was recalled by the defendants appears in the transcript...There is no dispute that something was said does not appear in the transcript. Jackson concludes, "It is undisputed that Judge Arguello said something that does not appear in the transcript, either the unedited or the final version." Federal Appellate Judge H. Lee Sarokin (Retired, 3rd Circuit Court of Appeals), after his review of trial transcripts and court records from Judge Jackson's proceedings, wrote in the Huffington Post: "But having now resolved the factual issue so clearly by an independent court (speaking of Judge Jackson), one cannot help but wonder wherein lies the delay (by the 10th Circuit)? If there is no way to determine whether or not the 5th Amendment rights of the defendants were violated, does the Court of Appeals have any other choice but to either reverse and remand for a new trial or dismiss?" We don't think the court can provide a viable argument or explanation, except blatant vindictiveness, for the continued delay of our appeal given the undisputable fact of a missing transcript that has already been confirmed by three other judges, including the trial judge who presided over the case.

 

If Judge Arguello says the critical portion of the sidebar is missing that is independently confirmed by Judge Jackson, and Sarokin, after review of Arguello's and Jackson's findings, questions why the delay in dismissing or reversing the case, it is unreasonable and inconceivable that the 10th Circuit would take 18 months for the appellate panel to acknowledge Haber. If after only a week of reviewing the transcript, Sarokin states that "The case raises numerous other serious questions about the prosecution, conviction and incarceration pending appeal of these defendants." "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", concludes Sarokin. It is undisputed that interchange at the sidebar between the Judge Arguello and the defendants is missing, so why the continued delay by the panel? Judge's Baldock, Hartz and Holmes are not novices, they are top-flight, experienced jurists with superior legal acumen and it is absolutely implausible, as the evidence presented herein substantiates, for them to still be reviewing this case in light of Haber. Another area of concern is a recent application for bond pending appeal that was electronically submitted to the court on Saturday, June 28, 2014, which would not be viewed by the clerk's office until Monday morning, June 30, 2014. Oddly, just a few hours into the morning, a denial of bond pending appeal appeared in PACER. A red flag was raised when AJC's Ethel Lopez contacted Judge's Hartz and Holmes offices, where judicial assistants verified they had not received any bond application for the IRP6 case. The judicial assistants explained that the clerk's office will send an email with the bond application enclosed and they had not received an email. How could there be a bond denial when the judge's offices had not received the application? Did the clerk's office unilaterally issue a fraudulent denial without the authority of the appellate panel? The speed at which the denial was issued and the lack of a formal opinion on the issues indicated the judge's couldn't have properly considered the merits of the application, which included Judge Jackson's independent findings and Sarokin's review and conclusions. On July 1, 2014, when investigative reporter Tracy Collins contacted the clerk's office inquiring about the bond application she was faced once again with a contradiction to the information provided by the Judge's Hartz and Holmes offices. Collins asserts that Chris Wohlpert claimed that the emails had been sent and he found it odd that they were returned so quickly without an opinion. When Collins asked him to provide the time they were sent, he claimed he could not remember, but he would call her back with the information. Collins never received that call. Later that week, AJC sent representatives to New Mexico to hand-deliver the bond application to the Judge Hartz's office and had the other's delivered and verified receipt. To date, there has been no response whatsoever by the appellate panel. We believe this refusal to review and process our bond application was another intentional act of retaliation. While the Canons of The Code of Conduct for United States Judges are aspirational in nature, they provide sound guidance by which judicial conduct should be measured.

 

Canon 1 states that the Canons..."should be applied consistent with constitutional requirements, statutes and other court rules and decisional law, and in the context of all relevant circumstances" and "public confidence in the judiciary is maintained by the adherence of each judge to this responsibility." Canon 3, A Judge Should Perform The Duties Of the Office Impartially and Diligently, states in section 3A(5) that "A judge should dispose promptly of the business of the court...In disposing of matters promptly, efficiently and fairly , a judge must demonstrate due regard for the rights of the parties...and to have issue resolved without unnecessary cost or delay. A judge should monitor and supervise cases so as to reduce or eliminate dilatory practices, avoidable delays and unnecessary costs." Canon 3B(1) states: "A judge should diligently discharge the judge's administrative responsibilities, maintain professional competence in judicial administration and facilitate the performance of the administrative responsibilities of other judges and court officials." Canon 3B(2) states "A judge should require court officials, staff and other subject to the judge's direction and control to observe the same standards of fidelity and diligence applicable to the judge."

 

It would be improper and violate ethical judicial conduct for an appellate judge, who knows the panel has rendered a decision on the case, to collude and conspire with the clerk's office to conceal and delay that decision in retaliation for appellants exercising their First Amendment right of free speech to publically criticize the judiciary's actions. This would rise to an egregious violation of our 5th Amendment right of due process. If a single judge is responsible for intentionally delaying the decision, then it is the ethical responsibility of the other judge(s) to report any misconduct. Below are a list of inconsistent responses between the judge's office and clerk's office that substantiates our suspicion of misconduct:

 

We believe that one or all of the judges in our appellate panel are discriminating against us by deliberately delaying our appeal by personally finding us guilty of a secret contempt of court charge based on our very public attack and criticism of the court and judicial officials in our case. We have a First Amendment right of free speech to publically protest what we know with 100% certainty to be a wrongful conviction and imprisonment based on intentional and malicious conduct by judicial officials. We have challenged the integrity, motives and actions of court and government officials by launching a publicity campaign via Internet, radio, public protests outside the federal courthouse in Denver, social media and press release. There have been articles in the Huffington Post and other news organizations in the U.S. and internationally. AJC and investigative reporters have repeatedly contacted via phone, both the clerk's office and judge's offices with questions about the status of the appeal and sometimes questioning the integrity of officials. Judges are human beings and we believe the appellate panel have lost their impartiality and fairness and are retaliating against us by deliberately delaying our appeal.

 

In Estes v. Texas, 381 U.S. 532 (1965), footnote 3, the Supreme Court stated "[t]hat even judges are human and not immune from outside environmental influences. There is a "danger that some judges...will be consciously or unconsciously influenced by demonstrations in or near there courtrooms..." Cox v. Louisiana 379 U.S. 559 (1965). "Judges are human beings also and are subject to the same psychological reactions as laymen." Id. If the Supreme Court found that judges could be impacted by adverse public scrutiny in the mid 1960's, it is exponentially more probable today given unfettered access to the Internet and a 24 hour news cycle.

 

The facts, evidence, and circumstances presented here raise many red flags that our appeal is being intentionally delayed and our 5th Amendment right of due process is being violated. Our panel has grossly discriminated against us by dillydallying on our appeal while showing preferential treatment in rendering decisions for many other appellants who submitted their briefs long after ours. While some appeals may take longer based on complex or novel issues of law, a missing transcript confirmed by three other judges doesn't meet that standard. According to 28 U.S.C. 455, judges are required to avoid the appearance of impropriety, yet have failed to do so in the IRP6 case. The appellate panel can't reasonably assert that they are not aware of the clerk's office's contradictions about the status of our appeal, yet their silence and inaction to resolve the matter indicates their implicit involvement in not only delaying the appeal, but concealing apparent improprieties. Our appellate panel can't reasonably dispute findings by three other judges, including the trial judge that a critical portion of the trial transcript is missing that requires immediate reversal according to their Haber precedent. Our appellate panel can't reasonably assert that they received the bond application when their judicial assistants are adamant the clerk's office never sent the email. Our appellate panel discriminated against us again when they refused to review and issue an order on our bond application even after AJC delivered it to them following the clerk's failure to email. "Fairness of procedure is 'due process in the primary sense.'" Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951). The appellate procedure we have been subjected to has been discriminatory and completely unfair and there is no reasonable justification for this incessant delay.

 

Based on the aforementioned we file this complaint of judicial misconduct against our appellate panel of Judge Baldock, Judge Hartz and Judge Holmes.

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