Judges That Hide Injustice

June 17, 2015

 

I would venture to say that the vast majority of Americans are unaware that our justice system has only a partial, yet biased set of checks and balances to determine whether a citizen actually received a fair jury trial. Whether or not a citizen actually receives a fair jury trial is based solely on assumptions.  Assumptions that the jury was impartial in their deliberations. Assumptions that jurors understood the facts of the case. Assumptions that jurors understood the law and properly applied the law to the facts of the case. Assumptions that jurors were not coerced or pressured into their decision. Assumptions that juror decisions were not based on some bias or prejudice.  How can we possibly determine if justice was done by a jury if we don't understand how, why and the circumstances that contributed to that decision? Certainly we are not naive enough to believe that the sermonizing of facts and presentation of evidence by prosecutors and defense attorneys were the sole influences on the decision-making of jurors. Jurors are told by the judges to only consider the facts and evidence during deliberations and to, in essence, forget about other statements, insinuations, hyperbole and emotions they see take place in a courtroom. Unfortunately, humans aren't built that way and can't simply detach from their personal beliefs, prejudices and social pressures. Given those facts, it is incumbent upon us as a society to more deeply consider validity of verdicts and the effectiveness of juries in criminal trials.

 

Did a juror(s) wither under social pressure from the majority to vote against their conscience? Not everyone has a strong enough personality to hold to their convictions (no pun intended) when under pressure from others.  It is not uncommon that many people want to be accepted by a group or by their peers so they go along to get along. Did a juror(s) get tired of holding out because they simply wanted to go home or get back to their life? Did the juror(s) think that the prosecutor's presentation sounded like something illegal was done but didn't fully understand the facts and gave the prosecutor the benefit of the doubt?  Did a juror(s) exhibit racial bias during deliberations and convict on that basis? Why wouldn't our judiciary want to know the answers to these questions? The fact is that many of those who oversee our justice system really don't want to know. Why? Because knowing would debunk the myth that America has the best justice system, expose the inherent flaws of the jury system and prove that our justice system may be nothing more than an elaborate fraud. So what does America do to avoid dealing with the truth and protect the ideals of U.S. justice? They hide from the truth by enacting jury deliberation secrecy laws, ultimately making it easier to preserve injustice and wrongful convictions.  The May 27, 2015 edition of the Bloomberg BNA (Bureau of National Affairs) Criminal Law Reporter, Vol. 97, No. 9, reported on 4-3 ruling by the Colorado Supreme Court that evidence of racial juror bias exposed during deliberations is barred from consideration in overturning a conviction.  The Colorado criminal case in question is Pena-Rodriquez v. People (Case No. 13SC9, 5/18/2015).

 

In Pena-Rodriquez, former jurors submitted affidavits that one of the jurors based his verdict on the juror's Mexican heritage. One affidavit alleged that the juror believed that the defendant was guilty of nonconsensual sexual contact and harassment of two teenage girls because the juror's experience as a law enforcement officer taught him that "Mexican men had a bravado that caused them to believe they could do whatever they wanted with women." Just imagine the credibility some jurors would give to a law enforcement officer's views. The Court found that the juror's racial bias was inadmissible to support a claim that the defendant was deprived of a fair trial because both Colorado and Federal rules of evidence prohibits testimony or affidavits from jurors regarding the statements or thought processes of jurors during deliberations. Federal Rule of Evidence 606(b) states that "during an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during deliberations;"  The Court explained that the case involved the "interplay between two fundamental tenets of the justice system:  protecting the secrecy of jury deliberations and ensuring a defendant's right to an impartial jury,"  The Court also noted that the rules are designed to further the interests in preserving the finality of verdicts and to protect jurors from harassment and coercion. Judges are defecting from the Constitution in an effort to preserve public trust and legitimacy in a fatally flawed jury system. How can any judge in the United States put jury deliberation secrecy on the same level of importance as a constitutional right to a fair trial?  Justice Monica M. Marquez addressed this shocking fact in her dissent, saying: "the majority elevates general policy interests in the finality of verdicts and in avoiding the potential embarrassment of a juror over the defendant's fundamental constitutional right to a fair trial...Although the majority believes that this result is required to preserve public confidence in our jury trial system, in my view, it has precisely the opposite effect", Marquez added.

 

Justice Marquez is absolutely right. It is mind-boggling that the majority can rationalize that a verdict tainted with evidence of racial bias from a juror could possibly engender public confidence in our jury system.  So what is the true goal of our appellate courts? How can our justice system be effective if appellate judges are predisposed to preserving the finality of unconstitutional verdicts? From what we see here from the majority, fairness, doing justice or upholding the Constitution is not important at all. The article also said the state and federal courts disagree about which principles, secrecy or a fair trial, trump the other and the Supreme Court has not resolved the issue yet. The Supreme Court of the United States already resolved the issue in a 1955 case (In re: Murchison 349 U.S. 136), where they 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 law has always endeavored to prevent even the probability of unfairness...But to perform its high function in the best way justice must satisfy the appearance of justice."

 

Many judges simply don't have any fidelity to the Constitution anymore. The appearance of justice cannot be satisfied when a juror is known to harbor racial bias against the defendant. Justice cannot never be done when judges turn their back on juror bias and on a fair trial. These words by SCOTUS strips these judges naked and exposes them and shows others like them to be a fraud.  They speciously reason that a rule that distinguishes between racial bias and other types of juror bias "would not only violate the longstanding rule of shielding private jury deliberations from public view --- not to mention incentivize post-verdict harassment of jurors---but it would also require trial courts to make arbitrary judgments on the severity of a particular jurors impropriety or the intensity of the bias."  The Court further justified their twisted rationale from another Supreme Court case (Tanner v. U.S. 487 US 107 (1987)) where the rule was challenged because jurors were drunk during trial.  SCOTUS expressed concern that the jury system would not be able to "survive such efforts to perfect it."

 

So, instead of fixing or replacing a broken jury system, America's judiciary takes an "I don't want to know" approach through secret deliberations and assume that jurors did the right thing.  You know what they say when people assume? Secret jury deliberations are equivalent to gambling someone's life or liberty on a roll of the dice.  Secret deliberations also provides plausible deniability for our judiciary much like secret grand jury proceedings does for prosecutors.  "Don't criticize me" said the prosecutor and the judge "the jury made the decision."  Notice how our judiciary ennobles themselves as the protectors of the innocent grandma, teacher and struggling blue collar worker who made sacrifices to serve as a juror while they fail to protect the constitutional rights of the accused.  Jury service is accepted under the force of law.  People just don't show up to court looking to serve. If they don't show up they face a contempt charge. The best justice system in the world? Uh...not! The idealistic scales need to come off of our judiciary's eyes and they need to take courage to change the issues in a jury system that promotes injustice. The problem can be solved by making jury deliberations public and stop putting concern for juror embarrassment over that of the accused, whose life and liberty are at stake.  Jurors are adults and must be held accountable for the decisions they make and should have to justify to society why they chose to convict or acquit one of their fellow citizens.  If they are not willing to stand by their decision over scrutiny from the public then they should be excluded from serving.  Questions concerning public scrutiny should become part of voir dire and used to exclude jurors.  If not enough jurors are not willing to serve on this basis then scrap the jury system and find another. Defendants never get a true jury of their peers anyway. The only real requirement is that you are a human. Juries have become nothing more than a rubber stamp for prosecutors. In the IRP6 case, I witnessed 10th Circuit appellate judges disregard the Constitution to preserve the finality of a flawed verdict and jurors convict when they didn't understand the facts and evidence in the case. 

 

In the IRP6 case there were overt 5th and 6th Amendment constitutional violations that the 10th Circuit Court of Appeals simply disregarded to preserve the finality of the verdict.  The key members of the cabal consisted of 10th Circuit appellate judges Harris Hartz, Bobby Baldock and Jerome Holmes, trial judge Christine M. Arguello and federal prosecutor Matthew T. Kirsch---all of whom took an oath to uphold the Constitution but none of them did.

 

The Fifth Amendment gives a defendant the right to remain silent during their trial.  During a sidebar, an angry Judge Arguello forced us (the IRP6) to take the stand and testify under threat of canceling our defense.  We, as pro se defendants, deeply concerned about our defense being canceled, put codefendant Ken Barnes on the stand.  We had not planned or prepared to testify so it was a rather devastating turn of events.  While Barnes was on the stand, Gary Walker objected to him being forced to testify in front of the jury and plead the Fifth Amendment on behalf of Barnes.  We told Judge Arguello that we weren't going to continue because she forced us to testify.  Judge Arguello immediately lied and said she did no such thing.  Prosecutor's Kirsch and Suneeta Hazra, who witnessed Judge Arguello's statements remained silent. We asked for the transcript, Arguello denied us and then the transcript of the sidebar mysteriously disappeared.  Judge Arguello then started speculating that the court reporter was not able to transcribe the sidebar because maybe should could not hear or her headphones fell off.  First, she wasn't wearing headphones and second she never complained that she could not hear which she had done on numerous occasions throughout the 17-day trial and third, we were speaking into a conference room microphone that Judge Arguello placed between us to record audio for the court reporter.  We asked for hearing to question the court reporter.  Denied!  We asked for the unedited version of the transcript. Denied! We repeatedly asked the 10th Circuit for the unedited transcript.  Repeatedly denied!  Federal judge R. Brooke Jackson confirmed in a separate civil proceeding that Judge Arguello's statements during the sidebar were missing from the transcript and stated that Judge Arguello failed to provide any explanation why. Our 5th Amendment right against self-incrimination and right to a 5th right of due process and fair trial had been violated.  The transcript of the Arguello's statements disappeared and an unconcerned 10th Circuit preserved the finality of the verdict and we have been in prison for the past 3 years for a crime we never committed.  This is all a matter of court record.  Retired Federal Judge H. Lee Sarokin, a Harvard law graduate and former federal appeals judge for 3rd Circuit Court of Appeals reviewed court transcripts and was disturbed enough to write a 5-part series on the Huffington Post titled "The Case of the Missing Transcript."

 

Judge Sarokin initially assumed the IRP6's allegations that Judge Arguello compelled them to testify could not be resolved because of the absence of the transcript.  However, after reading more of the facts in the court record, he was certain that the IRP6's 5th Amendment right was indeed violated.  In part 3 of his series in the Huffington Post, Sarokin laid out the facts that would have caused him as an experienced federal appellate court judge to throw out the IRP6's conviction.  Sarokin's analysis exposed the unethical and illegal actions by Judge Arguello and AUSA Kirsch and leaves no doubt that this was a cover-up and conspiracy to obstruct justice. This is what he wrote:

 

"In prior posts on this matter, I have assumed that absent a transcript of precisely what was allegedly said by the judge to lead these defendants to believe that they were compelled to testify, that no resolution could be made of that issue. However, after having read more of the record, the [10th Circuit] Court of Appeals has ample opportunity to accept the defendants' factual versions as true and be guided accordingly in its 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:

 

1. The judge was frustrated at the slow pace of witnesses and said "something" to the defendants about the future of the trial.

2. Immediately following the sidebar, the defendants caucused, and one of the defendants, Mr. Barnes, then took the stand.

3. No inquiry was made by the Court regarding defendant's waiver of his right not to testify.

4. Shortly into the testimony, the U.S. Attorney (not the defendants) wanted clarification that the defendants were going to testify in any event despite the problem producing witnesses.  Clearly, he, too, was concerned about the Court's comments at the side bar and that they might have been misinterpreted as being coercive.

5. Once the issue was raised by the government, upon inquiry by the court to the defendants, they were unanimous in their impression of the judge's remarks-- that the judge had made it clear to them that if they didn't have a witness, one of them would have to testify in order to keep their defense alive.  Each contemporaneous statement on the record confirms this.

6. Although the court denied making such statements, she did not recall her exact language. "I don't know what my exact phrasing was."

7. The failure to have a record of that conversation must be laid the feet of the court and government.  The absence of this critical conversation, the transcript of which was called for and ordered that very day certainly creates justifiable suspicions.  Strangely, in the separate civil suit against the court reporter, the U.S. Attorney stepped in claiming the reporter was an employee of and on government business. But even accepting Judge Jackson's finding in the civil case of no skullduggery by the court reporter, the defendants have good reason to cry "foul."

8. Mr. Banks asked to see a copy of the transcript of the bench conference before proceeding further, and the court advised that "the transcript would be provided at the end of the day." The court reporter has never (to my knowledge) through affidavit or testimony explained the absence of this entry.

9. On cross-examination of Mr. Barnes by the government, Mr. Walker objected, pleaded the 5th Amendment based on "being forced to testify". When government cross-examination resumed, Mr. Barnes pled the 5th amendment in response to every remaining question -- all in presence of the jury.  It is difficult to imagine anything more prejudicial.

10. Nor (to my knowledge) has the court reporter or the U.S. Attorney provided an affidavit or testimony of what they recall being said by the court nor denying what the defendants claim was said by the court.  This omission by the U.S. Attorney speaks volumes.

 

With all this uncontroverted evidence the [10th Circuit] Court of Appeals certainly has enough evidence to conclude that the right against self-incrimination indeed was, violated by the trial court; that defendants reasonably believed that at least one of them was required to testify in order to have the defense remain open; and that they succumbed to that threat, and immediately voiced their objections. Lacking any competent evidence to rebut those claims of constitutional violations, the claim of the defendants must be recognized as valid -- even without the missing entry in the transcript."

 

Judge Sarokin is not some naive lout. If he, as an experienced federal appeals judge, recognized the violation of our 5th Amendment rights from the transcript, so did his peers in the 10th Circuit, appellate judges Baldock, Hartz and Holmes.  Baldock, Hartz and Holmes joined with Arguello, AUSA Kirsch, AUSA Suneeta Hazra, U.S. Attorney John Walsh, and court reporter Darlene Martinez in a conspiracy to obstruct justice, wrongly convict and imprison the IRP6.  They are all defectors of the Constitution.  These defectors also did violence to the IRP6's 6th Amendment rights.

 

The Sixth Amendment of the Constitution gives criminal defendants the right to present witnesses in their favor as part of establishing a defense.  This is also a fundamental element of due process of law.  Both our Sixth Amendment right and due process were violated in our trial. Federal trial prosecutor Matthew Kirsch lied to a Judge Arguello, whose bias against us was on display throughout the entire trial, that he was not properly notified as part of discovery about two expert witnesses that the IRP6 called to testify. Expert witnesses that would have done irreparable damage to his case.  Kirsch's goal was to obtain a discovery sanction to exclude our witnesses’ testimony from the jury. Case law of the Supreme Court of the United States and the 10th Circuit strongly disfavors exclusions of witnesses and evidence unless extreme circumstances dictate because of the importance of the Sixth Amendment right.  Judge Arguello the 10th Circuit ignored case law and the Constitution without hesitation.

 

The Supreme Court case of Taylor v. Illinois 484 U.S. 408, 409 (1988), speaking on the Sixth Amendment right to call witnesses states:

 

"[o]ur cases establish, at a minimum, that criminal defendants have the right to government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt...Few rights are more fundamental than that of an accused to present witnesses in his own defense...Indeed, this right is an essential attribute of the adversary system itself...'The right to offer testimony of witnesses, and compel their attendance, if necessary,, is in plain terms their right to present a defense, the right to present the defendant's version of the facts...to the jury so it may decide where the truth lies'...The defendant's right [to present witnesses] is itself designed to vindicate the principle the the 'ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.'”

 

You don't need much more from the Supreme Court to realize how important the Sixth Amendment is to the fairness of judicial process.  The government was not assisting us with calling our witnesses but was scheming to get rid of them.  I mentioned above that Kirsch's objective was to get Arguello to give a discovery sanction to exclude our witnesses and leave the jury with only a partial set of facts favorable to his case. The fix was in! Judge Arguello broke every rule and violated the Constitution en route to excluding our witnesses. 

 

The 10th Circuit, who reviews Judge Arguello's cases, explained in the 2014 case of United States v. Yepa (Case No. 13-2149), that 'It would be a rare case where, absent bad faith, a district [judge] should exclude evidence" with a discovery sanction. Judge Arguello excluded our witnesses and never made a single claim of bad faith. SCOTUS also said in the Taylor case mentioned above that "rules that provide for pretrial discovery of an opponent’s witnesses serve the...high purpose" of eliminating the need for discovery sanction to exclude evidence from a jury. We abided by Judge Arguello's pretrial discovery rules and turned over a witness list to the government with all of our witnesses. However, in conflict with 10th Circuit case law, Kirsch argued that he had not been properly notified about two of those witnesses because he had not received an expert report of their qualifications and their methodology.

 

In the 2008 and 2009 appeals of Qwest CEO Joe Nacchio, the 10th Circuit resolved the fact that criminal defendants are not required to provide the government with any notice about expert testimony unless they first request the government turn over their expert's information.  Kirsch was not calling experts and the IRP6 never requested any expert reports of the government.  The fix was in! Irrespective of the 10th Circuit case law and the Constitution, Judge Arguello excluded our witnesses anyway and violated our Sixth Amendment right and gave us up to the government.  We were innocent to begin with, didn't get a fair trial and were wrongly convicted and imprisoned.  Baldock, Hartz and Holmes not only ignored the Constitution again, but also Supreme Court, and their own 10th Circuit case law. Justice advocacy organization, A Just Cause, interviewed a juror after the trial who said he didn't understand the facts of the case.  Was this juror motivated by social pressure in the jury room? Did he just want to go home?  Did he give the prosecutor the benefit of the doubt that the IRP6 defendants must have done something wrong or they wouldn't be sitting at the defense table? 

 

My younger brother, Lamont Banks, lost 7 years of his life after being wrongly-convicted in Colorado court.  When his defense attorney asked the jurors how many of them thought he was guilty because he was sitting at the defense table, ALL the jurors raised their hands.  This is irrefutable evidence that our jury system is broken and desperately needs reform. But allowing challenges to bias and other prejudicial events during jury deliberations would expose our criminal justice system as dysfunctional because, as the Supreme Court put it, our jury system would not "survive such efforts to perfect it." So their answer is to ignore our constitutional right to a fair trial and preserve the finality of verdicts even though some jurors are making decisions to convict and imprison based on racial bias and other wrong reasons. Justice and the Constitution be damned!  Wow!! We really are a nation of cowards.

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