Sabotage of the Judicial Process

August 26, 2014

Sabotage of the judicial process has become a norm in our U.S. justice system. Government officials, especially when misconduct is implicated by one of their own, engage in fraudulent acts geared towards perverting the legitimate functioning of the judicial process to gain an unfair advantage or to conceal misconduct. The actions by government officials in the IRP6 case and more recently in the Michael Brown case present a disturbing pattern of behavior by officials to obstruct justice. Before I discuss the sabotage of the judicial process in the IRP6 case, I feel compelled to comment on the sad shooting death of Michael Brown and divisive conduct of the Ferguson Police Department to poison the pool of justice.

 

Michael Brown was an unarmed teen shot by citizen Darren Wilson. Irrespective of Wilson's job of being a police officer, he shot another citizen six times and should have been immediately arrested and questioned like any other citizen. Numerous eyewitnesses consistently attest that Brown was a good distance from Wilson while he was being filled with lead from Wilson's gun. There is clearly probable cause to arrest Wilson.

 

Black's Law Dictionary defines Probable Cause as "a reasonable ground to suspect that a person has committed...a crime...Under the Fourth Amendment, probable cause --- which amounts to more than bare suspicion but less than evidence that would justify a conviction --- must be shown before an arrest warrant...may be issued...'For there to be probable cause, the facts, must be such as would warrant a belief by a reasonable man.'

 

The Ferguson Police Department's failure to treat Wilson with the same legal procedures commonly used on other citizen's sends an insidious message that Michael Brown's death has no value and Wilson is above the law. A backlash from the predominantly African-American community is understandable when a young black teen lies dead, the credibility of African-American witnesses are ignored while benefit of the doubt is given to the word of the white police officer. I have zero doubt that if Brown had been the shooter, the victim was Wilson and the eyewitnesses were white, Brown would have been immediately arrested, charged, denied bond and sitting in jail. Even with the variables of race and job title removed, a man shot an unarmed teen six times and was not arrested and questioned. The administration of justice must be based on fair and consistent procedures that are applied equally to all citizens, including police officers, prosecutors and the judiciary.

 

When fair and consistent legal procedures are ignored by police and preferential treatment is given to a person of a different class, status, or race— public outrage, cries of racial animas and civil unrest is certain to boil over with citizens demanding justice, especially when a life has been lost. In paying some rightful respect to African-American's views that their young men are being unfairly victimized by police, I want to address the Aurora Theater shooting suspect who was taken into custody without a shot being fired. Keep in mind that this suspect had already committed a violent mass murder in the theater and returned to his car outside the theater where police found him reloading his weapons to continue killing in the theater. Not a shot was fired by police even though he was heavily armed and dangerous. Michael Brown had no weapons and was fatally shot six times. Viewed against the backdrop of Sean Bell, Trayvon Martin, Jordan Davis, and Eric Garner, Americans need to show some compassion and understanding to the desperate feelings of injustice by African-Americans. They have a right to demand a fair and just process by law enforcement and the courts and not be subjected to attempts by government officials to sabotage the judicial process.

 

The Ferguson Police against the advice of Attorney General Eric Holder, sought to sabotage the judicial process by releasing a video of Michael Brown allegedly shoplifting some cigarettes and shoving a store clerk instead of addressing the facts and evidence surrounding the shooting. This was nothing more than an attempt to demonize Brown and assassinate his character in an effort to poison the public and jury pools to gain a tactical advantage in judicial proceedings by presenting him as an unsavory thug capable of attacking Wilson and worthy of being shot and killed. The IRP6 suffered similar tactics of sabotage by government officials in their case.

 

The IRP6 have seen the same type of preferential treatment doled out by law enforcement and the judiciary for Judge Christine M. Arguello after evidence showing she sabotaged the trial of the IRP6 by coercing defendants to testify against their will, conspiring with her court reporter to conceal her coercion, denying bond and pronouncing sentences from 7-11 years for the IRP6. The facts, evidence and circumstances show that Judge Arguello perpetrated a vicious fraud on the court and sabotaged the judicial machinery while federal prosecutors and the 10th Circuit Court of Appeals failed to enforce the law and hold Judge Arguello accountable for her actions, allowing the IRP6 to be denied a fair trial and wrongly imprisoned --- All to protect a member of their fraternity.

 

In Orient Mineral Co. v. Eck, 416 Fed. Appx. 721 (10th Cir. 2011), the 10th Circuit Court of Appeals stated: "'Fraud on the court...is fraud which is directed at the judicial machinery itself and is not fraud between the parties or fraudulent documents, false statements or perjury'...To establish fraud on the court, one must prove 'the impartial functions of the court have been directly corrupted'...Indeed, a party alleging fraud on the court must demonstrate 'conscious wrongdoing'[, which] can be properly characterized as a deliberate scheme to defraud'".

 

Did Judge Christine M. Arguello sabotage the judicial machinery by committing fraud on the court in the IRP6 case? I believe a strong argument can be made that Arguello is indeed a saboteur when you compare and contrast her speculation about what happened to the missing sidebar transcript where she is accused of coercing the IRP6 defendants to testify to her meticulous attention to detail concerning the clarity and volume of parties speaking in her courtroom. Judge Arguello sabotaged the judicial machinery when she refused to hold a short hearing in open court to allow her court reporter, Darlene Martinez, to answer questions concerning the missing transcript. Instead, Judge Arguello chose to speculate as to what possibly happened to the sidebar transcript. Speculation by a judge in a court of law can only be considered malfeasance. Speculation is a common objection used by attorneys in court when a witness is asked to theorize or make a guess when answering a question. The Federal Rules of Evidence prohibits speculation. How is it then acceptable for a judge to speculate when she can simply hold a hearing to obtain actual facts and evidence to fully resolve whether defendant's constitutional rights are violated? Isn't this a court of law? Or is it a monarch's court, Queen Arguello's court? In the IRP6 case it was definitely the latter and I believe Judge Arguello chose this option to hide her constitutionally offensive conduct by coercing defendants to testify in violation of the Fifth Amendment. It is apparent from court records, in an effort to conceal her transgression, Judge Arguello chose sabotage through fraud on the court. Concerning the missing portion of the transcript, Judge Arguello speculated:

 

"For whatever reason, whether the parties spoke too far from the microphone or the court reporter took her headphones off, the court reporter did not hear everything that was said at the sidebar and therefore did not transcribe anything besides what is contained in the edited transcript."

 

The first problem with Arguello's statement is that an edited transcript can only be completed by the court reporter through reviewing and editing the unedited transcript to create the edited version. That is why the IRP6 requested the UNEDITED transcript. Second, court records show that Judge Arguello was anal retentive about insuring that everyone who was speaking during the IRP6 trial spoke loud and clear enough so the court reporter, jury and the bailiff could hear everything so they could effectively do their jobs. Judge Arguello intervened repeatedly on behalf of the court reporter when she was struggling to hear by admonishing witnesses and defendants to "speak directly into the microphone" or "slow down". Even federal prosecutors asked their witnesses to "keep [their] voice up so everybody can hear". How is it that neither Judge Arguello nor prosecutors’ Matthew Kirsch and Suneeta Hazra made requests of the IRP6 to speak up or move closer to the microphone during the October 11, 2011 sidebar where the IRP6 accused Judge Arguello of coercing them to testify? Additionally, why would the court reporter not alert the judge that she could not hear? Would the court reporter simply accept the fact she could not hear and just stop transcribing? Uhhh, no she wouldn't.

 

Judge Arguello's above statement defies all common sense and logic. During sidebars, the IRP6 and two prosecutors would gather on one side of Judge Arguello's bench. After being positioned around her bench, Judge Arguello would then place a microphone, similar to the one's attached to a conference room phone, in the center of parties to guarantee her court reporter could digitally record the audio and accurately transcribe statements. In fact, at another sidebar that occurred on day six of the trial October 3, 2011 (pages 1063-1064), Judge Arguello instructed me (David Banks) to "take [my] hands off the microphone." Court reporter Darlene Martinez managed to transcribe Arguello's statement on this occasion but failed to record Judge Arguello on the October 11, 2011 sidebar where she coerced us to testify. No one could stretch their imagination far enough to believe Martinez could not hear. Let's walk through the transcript to see Arguello's focused attention and actions towards enforcing clear and concise speech at trial.

 

Day 2- September 27, 2011

Page 41

JURY: I can barely hear you.

 

MR. BARNES: You can't hear me? Okay. I'm sorry.

I will speak up for you.

 

Day 2- September 27, 2011

Page 68

THE COURT: Could I ask you to sit forward so you

speak into the microphone to make sure that everybody

hears you.

 

THE WITNESS: Okay.

 

Day 3- September 28, 2011

Pages 312-313

BY MR. KIRSCH:

Q. Mr. Crockett, can I make sure your chair is scooted forward so you are close to the microphone.

Page 321

THE COURT: May I ask, is the jury able to hear?

All right. Lean more into the microphone.

 

THE WITNESS: I have this crazy voice.

 

Day 4- September 29, 2011

Page 485

THE COURT: Your voice is very low.

 

Page 487

THE COURT: Can you speak closer to the microphone.

 

Page 489

THE COURT: Can you speak closer to the microphone.

I am sorry.

 

 

Page 495

THE COURT: Can you speak further into the

microphone? The jury is having difficulty hearing you.

 

 

Page 499

THE COURT: Mr. Bello if I could ask you to speak

directly into the microphone so everybody can hear you I

would appreciate it.

 

Page 610

BY MR. KIRSCH:

Q. Ms. Holland, I am going to ask you to make sure that

you are directing yourself into the microphone there so

everybody can hear you.

 

A. Okay.

 

Day 5- September 30, 2011

Page 763

THE COURT: Now, when you give an answer, slow down

so my court reporter can get it all down. She is good and

she got it all, but slow down.

 

THE WITNESS: I am sorry.

 

 

Page 773

BY MS. HAZRA:

Q. If you could just make sure you keep your voice up so

everybody can hear you.

 

A. Okay.

 

Day 6- October 3, 2011

Page 840

BY MS. HAZRA:

Q. And, Mr. Landau, if I could get you to slow down a

little bit so we can catch everything you are saying.

 

Day 7- October 4, 2011

Page 1211

THE COURT: Could I ask you to be sure you lean

into the microphone because you have a very soft voice.

         

Page 1225

MR. KIRSCH: We do have exhibits. They would be

13, 19, 90.4, 91.01 and 92.00.

 

THE COURT: A little slower for Ms. Barnes.

 

COURTROOM DEPUTY: 90.4.

 

MR. KIRSCH: 91.01 and 92.00.

 

Page 1244

THE COURT: Could you please lean forward and speak

into the microphone.

 

THE WITNESS: I am sorry. We did.

 

Day 8- October 5, 2011

Page 1358

THE COURT: Mr. Smith, if you could speak right

into the microphone. You may proceed.

 

Day 9- October 6, 2011

Page 1543

THE COURT: Mr. Zirpolo, can you slow down just a

bit so the court reporter can get it all down.

 

MR. ZIRPOLO: I am sorry.

 

THE COURT: It is difficult when you start reading.

 

MR. ZIRPOLO: Yes. I understand. I just want to

make sure I don't forget anything.

 

THE COURT: All right.

 

Pages 1545-1546

THE COURT: Mr. Zirpolo, slow down.

MR. ZIRPOLO: I am sorry. I was speeding up again?

 

THE COURT: Your voice dropped, the speed

continued.

 

Day 10- October 7, 2011

Page 1657

THE COURT: Mr. Williams, could I ask you to lean

forward and speak into the microphone. Mr. Walker, you may proceed.

 

Page 1658

THE COURT: Now, I will tell you that you speak

very rapidly. If you can make an effort to slow down so

the court reporter can get it all down, I would appreciate

it.

 

THE WITNESS: Would you like me to repeat?

 

THE COURT: I think she got it all. If you go very

long, she has trouble keeping up. Since you have that

tendency, I may remind you as we go forward.

 

THE WITNESS: I will slow down.

 

Page 1667

THE COURT: Slow down.

 

THE WITNESS: Sorry.

 

 

Page 1740

THE COURT: Ms. Haughton, could I ask you to move

forward and speak into the microphone, please.

 

Day 11- October 11, 2011

Page 187

THE COURT: Mr. Natu, if you could move forward and

speak into the microphone. You may proceed, Mr. Walker.

 

 

Day 13- October 13, 2011

Page 1847

THE COURT: Could you speak into the microphone.

 

Day 14- October 17, 2011

Page 2030

THE COURT: There is not a question before you at this point, so wait until he asks you a question. And you have a really low voice. It is hard to hear you, so speak right into the microphone.

 

THE WITNESS: All right.

 

Judge Arguello's repetitive actions and consistent behavior to insure parties at the IRP6 trial spoke with requisite clarity and volume betrays her specious excuses why her coercive statements were not recorded by the court reporter. Anyone who would believe this vain babbling to be true is not only short-sighted but quite dense. What was also repetitive and consistent were the actions of federal prosecutors and other judges who aided and abetted Judge Arguello in denying the IRP6 and the public access to court transcripts as required by law. Judge R. Brooke Jackson is one of these judges.

 

Court records show that Federal Judge R. Brooke Jackson presided over a civil suit by justice advocacy organization, A Just Cause, regarding court reporter Darlene Martinez's failure to provide complete transcripts. During a scheduling conference, Jackson pontificated: "...if it turns out that contrary to her recollection, Judge Arguello expressed herself in a way that reasonably could be understood by a layperson as ordering them to testify...wouldn't the justice of this case be to know that and then deal with it?...ultimately those of us who work for the federal government and the Justice Department have a goal, and that is to achieve justice." Apparently, this was nothing more than hyperbole by Judge Jackson as he never ordered the clerk's office to release the unedited transcripts and shorthand notes to AJC or the IRP6. Jackson's inaction shows his disinterest in achieving justice or getting to the bottom of what was actually said by Judge Arguello, but displays an underlying goal of protecting her from being made out to be deceptive and a liar. Instead, Jackson issues an opinion claiming he took judicial notice of the transcripts from the clerk's office and after conducting a file size comparison, found that there wasn't much size difference between unedited and final version. Jackson did implicitly question the veracity of Judge Arguello's statement that the portion of the transcript was not transcribed because of her failure to explain why. Unfortunately, Jackson's opinion turned out to be nothing more than a feeble attempt to reason away Judge Arguello's and court reporter Martinez's affirmation that the missing portion of the transcript amounted to 200 pages. Federal prosecutors and the 10th Circuit panel comprised of judges Baldock, Hartz and Holmes jumped on Jackson's opinion like a thirsty vampire needing blood to feed life to their pre-meditated goal of affirming a conviction against the IRP6 while ignoring Arguello's obvious bias, routine abuse of discretion and misconduct violating the IRP6's 5th Amendment rights and failures regarding the transcript.

 

The appellate court did not even address Jackson's statements that "it is undisputed that Judge Arguello said something that does not appear in the transcript, either the unedited or final version." Court records show that federal Judges Arguello, Baldock, Hartz, Holmes, Jackson and Chief Judge Briscoe of the 10th Circuit had full knowledge of the district court clerk's egregious and unlawful conduct in repeatedly denying the IRP6 and the public access to trial transcripts. It is gross malfeasance for federal judges to not only ignore clear violations of law by their administrative staff, but to snub their noses at repeated requests by the IRP6 and citizens to order the clerk's office and/or their subordinate judges to abide by the law. Baldock, Hartz, Holmes, Jackson and Briscoe are complicit in sabotaging justice for the IRP6. The IRP6 case is so anomalous that it has garnered the intense interest and scrutiny of prominent, highly-regarded jurists, including retired federal appellate judge, The Honorable H. Lee Sarokin (Retired, 3rd Circuit Court of Appeals).

 

Judge Sarokin, who was appointed to the 3rd Circuit by President Bill Clinton, is a man of courage with unquestionable honesty, integrity and fairness who possesses strong moral convictions about the responsibility of the judiciary to do justice. He has earned the right to be called honorable. Unfortunately, I can't say the same for our appellate panel. I am sure that Sarokin is shocked, irritated, saddened and likely embarrassed by the dishonorable actions and inaction of his colleagues Baldock, Hartz and Holmes to do what was right, honorable and just. "I still cannot shake my belief that an injustice has occurred...The government's contention that [the IRP6's] business was nothing but a scam defies reality. I have written at length about what has transpired in this case --- the treatment of the defendants at trial, the harsh sentences imposed, [and] the refusal to grant them bail pending appeal...Reading the [appellate] Court's decision...still leaves me with this gnawing feeling that justice was not served. I cannot help but believe that the fabric of justice has been frayed in this process", Sarokin exclaims in the Huffington Post.

 

It is evident from Judge Arguello's own statements that she willfully and intentionally sabotaged the judicial machinery and hijacked justice from the IRP6. Judge Arguello had a choice to do justice but chose injustice. She had a choice to release the unedited transcript and shorthand notes in accordance with the law but chose to conspire to conceal judicial documents. Judge Arguello had a choice to order the clerk's office to follow the law by allowing inspection of public court records but refused to do so. Prosecutor's Matthew Kirsch and Suneeta Hazra had a choice to say what they heard at the sidebar but silently colluded with Judge Arguello to conceal court records. Judge Jackson paid lip service to justice but in the end failed to order the release of the transcripts to the IRP6 or AJC. The Tenth Circuit judges Baldock, Hartz, Holmes and Briscoe circled the wagons of collusion by refusing to order Judge Arguello and the clerk's office to follow the law.  Three years have elapsed since the conclusion of the IRP6 trial and not a single judge or prosecutor has enforced compliance with the law. The IRP6 have suffered a wrongful conviction and loss of liberty, not as a result of innocent human error but from blatant prosecutorial and judicial misconduct.

 

Former Attorney General of Ohio, Jim Petro, stated in his book, False Justice, "I was disappointed to learn that misconduct by police and prosecutors has contributed too many wrong verdicts. Prosecutorial misconduct was a factor in thirty-three of the first seventy-four DNA exonerations (44.6%) and police misconduct was present in thirty-seven or exactly half of those cases." Compound that with judges as in the IRP6 case suborning misconduct of prosecutors and subordinate judges, we can conclude that our justice system is not just broken, it is non-existent. We don't have a justice system. WE HAVE A LEGAL SYSTEM! The judges and prosecutors in the IRP6 case didn't have enough integrity or moral fortitude to follow basic laws associated with the IRP6's and public's right to access trial transcripts. Certainly no one should be shocked that the 10th Circuit would not deal fairly with the violation of the IRP6's Fifth Amendment, speedy trial, denial of expert witnesses and a myriad of other government and judicial misconduct. They issued a legal opinion consistent with a legal system, not a justice system. Justice is defined as fairness, righteousness, evenness, impartiality. None of those qualities exist in the judges and prosecutors associated with the IRP6 case.

 

1) Was it fair or just that the IRP6 were coerced to testify by Judge Arguello?

 

2) Was it fair or just that the IRP6 were not allowed to call their witnesses and present a complete defense?

 

3) Was it fair or just for Judge Arguello to tell us when and how to present our defense witnesses?

 

4) Was it fair or just for the IRP6' that their court-appointed attorneys repeatedly extended the trial date to so they could be paid more money?

 

5) Was it fair or just for Judge Arguello and AUSA Kirsch to speak with some of our law enforcement witnesses prior to them testifying at our trial?

 

6) Was it fair or just for Judge Arguello to expose before the prosecutor what our remaining witnesses would testify about?

 

7) Was it fair or just for the FBI agents to intimidate and block our process server from serving FBI Agent Robert Moen?

 

8) Was it fair to deny us and the public access to our trial transcripts?

 

This is just a partial listing of illicit actions by Judge Arguello and AUSA Kirsch. Their abuse was gross and pervasive throughout our entire trial. Tenth Circuit Judges Baldock, Hartz and Holmes don't have a just or fair bone in their body to allow this type of reprehensible misconduct to go unchecked --- they were seeking to uphold a wrongful conviction instead of seeking justice. It is an immutable truth that most justice officials simply don't seek justice, especially when it involves misconduct of their colleagues.

 

We have a crony-based legal system. The statistics cited by Jim Petro don't lie. Americans must look at these actions in the IRP6 case and in Ferguson as representative of many justice official's insouciance towards doing justice. Sabotage of the judicial process by police, prosecutors and judges is routine and pervasive throughout our so-called justice system.

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