For the last three years, Advocacy Group, A Just Cause has engaged and continues to engage in an aggressive campaign to publicize prosecutorial and judicial misconduct in the IRP6 case with the goal of exonerating myself and five other information technology executives who were wrongly-convicted for a failure to pay corporate debt.
Former federal judge, the Honorable H. Lee Sarokin of the U.S. 3rd Circuit Court of Appeals became interested in the case after being interviewed on A Just Cause's Internet radio program. Sarokin is a graduate of Harvard Law School and was first appointed to the federal bench by President Jimmy Carter and subsequently to the 3rd Circuit Court of Appeals by President Bill Clinton.
After reviewing trial transcripts and reviewing the circumstances surrounding the case, Sarokin became disturbed by the mishandling of the trial, he would for the first time in a 60-year career in the law, ask a President of the United States for clemency on behalf of a party. Sarokin asked President Obama to free me, David Banks, and my five friends of the IRP6. We are 100% innocent and we are grateful for Judge Sarokin's advocacy. On December 28, Sarokin would write another article on the Huffington Post titled, "The Guilty Have a Better Chance For Parole or Pardon Than the Innocent," where Sarokin explained that the clemency process had built-in "institutionalized deceit" because an important factor of consideration for a pardon requires innocent defendants, such as the IRP6 to lie and admit guilt for a crime they never committed.
Sarokin recognized the unfairness of the process to impose such pressure on defendants who are unwavering in proclaiming their innocence. It is my view that this central requirement to feign guilt was set-up to serve only the government's interest.
Here's my take.
Admissions of guilt serves the government interests on both ends of the criminal justice system. On the front-end, those admissions guarantees a cheap and easy victory for a prosecutor who runs a career-driven conviction mill where success is measured by the number of convictions, not in ascertaining the truth to ensure the innocent go free. With plea bargains prosecutors can easily pad their resumes with unrealistic numbers and brag about their legendary achievement of a 98% conviction rate. I often find it interesting how prosecutors classify scams where criminals illegally obtain money based on a scheme that offered inflated rates of return as too good to be true. Prosecutors routinely tell juries that if it sounds too good to be true, it probably is, which indicates criminal activity. A 98% conviction rate is too good to be true and those numbers can't be achieved without prosecutors engaging in some type of malfeasance, some of which is perpetrated through using extortion and coercion tactics to scare defendants into taking a plea deal. Furthermore, if the innocent think they have only a 2% chance of winning, the vast majority will consider those odds are too great to go to trial, especially since the prosecutor threatens to penalize the defendant with a substantially increased sentence if they go to trial.
On the back-end, an admission of guilt from the innocent protects the government from culpability which in turn protects them from liability. It is amazing how many prosecutors and judges stand on their soapbox and demand that defendants admit wrongdoing and show remorse when they themselves are unwilling to take responsibility for their malfeasance as in the IRP6 case. Cowardly prosecutors bully the innocent into feigning guilt in exchange for their entitled liberty to protect themselves from having to admit they’re wrong. It is a quintessential exercise in hypocrisy and shows why prosecutors and judges are rarely held accountable for intentional acts that deprive the innocent of their freedom. There is simply no accountability for prosecutors and judges. Our system of justice is built for the government to always prevail and save face, which comes at the expense of destroying the lives and families of the innocent.
To overcome being bullied into lying and admitting guilt, the innocent must expose the government's misdeeds. This is a herculean task since most judges don't have the courage or are too politically queasy to take action against prosecutors or fellow judges, even in the light of overwhelming evidence of misconduct. Prosecutors and judges also benefit greatly from a "title drunk" society where many Americans unconsciously attribute high moral values to prosecutors and judges because of their job title. Everything that glitters is not gold and every prosecutor or judge is not a pillar of integrity or concerned about doing justice. Just like any other human being, prosecutors and judges are susceptible to being corrupted by power or having their own self-serving motives and agendas.
Likewise, everyone convicted of a crime is not guilty. But when the convicted say they're innocent and levy charges of misconduct against one of these exalted prosecutors or judges, the public generally discounts their complaint as another whiny criminal who got caught trying to wriggle out of their punishment. All of these factors stacks the deck against the innocent being granted clemency and is why many of them, as Judge Sarokin pointed out, may succumb to feigning guilt. With the Justice Department being the gatekeeper for clemency applications, an innocent person's application may never make it to the President, especially when you are accusing one of their own of misconduct. The recent study by two law professors found that prosecutors and law enforcement rarely provide assistance to exonerate the innocent.
Jon Gould, a professor at the American University School of Public Affairs and co-author of the largest exoneration study to date, "The Path to Exoneration", told Bloomberg BNA: "Once there's that badge of conviction, the system clamps down." "The system is really set-up to confirm the conviction rather than question its accuracy," exclaimed Gould. "We need to be working doubly hard to ensure that those who are innocent get tossed early because a conviction is a difficult yoke to get off their necks."
The fact is that many prosecutors could care less whether or not they get it right as long as they win. An exoneration would mean that they would have to face the reality that they convicted the wrong person or expose their misconduct. From my experience in the IRP6 case, prosecutors and judges would do just about anything to avoid taking responsibility for a wrongful-conviction, especially if there's evidence of intentional misconduct as in our case. Not only, as Professor Gould stated, does the "system clamp down" after a conviction but so does the public condemnation. When judges fail to hold prosecutors and their fellow judges accountable, the innocent suffer. And in the absence of feigning guilt, the innocent must work doubly hard to publically expose misconduct in hopes of gaining clemency.
In the criminal case against a U.S. Senator, a federal judge acted appropriately by exposing prosecutorial misconduct which resulted in the conviction being dismissed.
In the 2008 high-profile criminal case against U.S. Senator Ted Stevens (R-AK), an FBI whistleblower did come forward to expose the government's misconduct that led to a wrongful conviction of Senator Stevens. Two months after the verdict, however, the government would file a motion to seal the complaint of the agent. Judge Emmet G. Sullivan had the courage to appoint an independent counsel to investigate the complaint. Independent Counsel Henry Schuelke reported to the court that the government's case was "permeated by the systematic concealment of significant exculpatory evidence which would have independently corroborated [his] defense and his testimony, and seriously damaged the testimony and credibility of the government's key witness." Schuelke's investigation also concluded that DOJ prosecutors possessed a win-at-any-cost attitude toward prosecuting cases.
The government would then ask the Court to seal Schuelke's findings from the public, which Judge Sullivan would deny, concluding that the public had an overriding and compelling right protected by the First Amendment to see the report as well as the findings. The report would play a positive role in informing the public of the flaws in the criminal trial of Senator Stevens. The Department of Justice's record on exposing or effectively dealing with prosecutorial misconduct is abysmal.
Court records show that the government promised on two occasions to share the results of the Office of Professional Responsibility's investigation with the court, if not the public, but failed to do so. The OPR is the Department of Justice's internal affairs for prosecutors and is an example of why prosecutors and any other justice official accused of misconduct should be required to undergo an independent investigation. OPR rarely punishes misconduct and when they do, it amounts to a slap on the wrist. As Judge Sullivan found out, prosecutors reneged on providing him with the results of their investigation. This is why agencies should not be permitted to police themselves. Attorney General Eric Holder would ultimately ask the Court to set aside the verdict and dismiss the indictment with prejudice, which Judge Sullivan granted. If not for public exposure of prosecutorial misconduct, Senator Stevens’ conviction would have been allowed to stand and he would have been sent to prison and be forced to carry the weight and stigma of a felony conviction the rest of his life.
Moreover, if Stevens had sought clemency, he would have been forced to feign guilt. Even if Stevens were to later complain about misconduct after admitting guilt, he'd be labeled as a whiny convict who refuses to take responsibility for his crime and be accused of trying to sully the reputations of honest prosecutors who were out to do justice.
In the IRP6 case, overt acts of misconduct were perpetrated by the federal prosecutor Matthew T. Kirsch and federal Judge Christine M. Arguello. Judge Sarokin would be the whistleblower, exposing that not only were the IRP6 prosecuted, convicted and imprisoned for a failure to pay corporate debts, but that constitutional violations occurred in which the government, the trial judge and appellate judges were culpable.
Other government officials would echo Sarokin's conclusions. Court documents show the head of the Denver FBI saying that the IRP6 case was a "civil matter" and in an interview on A Just Cause's Internet Radio show, Ron LeGrand, former DOJ trial attorney and senior legal counsel for both House and Senate judiciary committee's would say: "IF! Big IF! If there was a case at all, it was a civil case and should have been handled as such. Judge Arguello and the 10th Circuit Court of Appeals refused to dismiss or overturn the case. A Just Cause has made President Obama, Attorney General Loretta Lynch and many members of Congress aware of the substantial facts and evidence that prove that we were wrongly-convicted and victims of prosecutorial and judicial misconduct. It is my experience that many prosecutors and judges are on the same team and care more about protecting each other from scrutiny than protecting the innocent from being wrongly-convicted. Professor Gould explained that relationship in his study.
Gould said about three-quarters of exoneration cases involve state actors only acting when they have protection from another state actor. For example, judges will only dismiss cases without prejudice when they know the prosecutor will not file charges again. "Courts need cover from prosecutors, and prosecutors need cover from the courts," Gould charged.
This is a sad state of affairs when a judge can't act independently without being concerned how the prosecutor will respond. I watched federal AUSA's Matthew Kirsch and Suneeta Hazra cover for Judge Arguello when she violated our 5th Amendment Right and coerced us, pro se defendants, to testify against our will. Judge Sarokin discussed their actions in the Huffington Post.
During a bench conference, Judge Arguello coerced us into to taking the witness stand against our will. Arguello told us if we didn't have a witness available one of us would have to take the stand or she would rest our case, meaning we would not be allowed to continue with our defense. We succumbed to the threat feeling we had no choice and took the stand. Both Kirsch, Hazra and the court reporter were present when Judge Arguello made those statements. When we complained to Judge Arguello that she forced us to testify, she denied ever making such remarks but did not recall her exact language: "I don't know what my exact phrasing was," claimed Arguello. We immediately asked for the transcript, which Judge Arguello denied us access to.
If Judge Arguello didn't make those statements she certainly would have wanted to clear her name by reviewing the transcript. Instead the transcript of the sidebar mysteriously disappeared. All six defendants independently confirmed what she said in affidavits, yet Kirsch, Hazra and the court reporter didn't say a word.
In the Huffington Post article, "The Case of The Missing Transcript Solved - Part III, Judge Sarokin discussed the government's apparent knowledge and cover-up of Arguello’s statements.
"Shortly into the testimony [of the IRP6], the U.S. Attorney (not the defendants) wanted clarification that all the defendants were going to testify in any event despite the problem producing witnesses," said Sarokin. "Clearly, he [the prosecutor], too, was concerned about the Court's comments at the side bar that they might have been misinterpreted as being coercive." "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," explained Sarokin.
Kirsch and Hazra witnessed Judge Arguello violate our 5th Amendment rights and covered it up to protect not only Judge Arguello but their case. Just like the prosecutors in the Senator Stevens case, Arguello, Kirsch and Hazra didn't care about our constitutional rights. They didn't care if we got a fair trial. They didn't care if they hurt our families. They didn't care if we were wrongly-convicted and imprisoned. They just wanted to win at any cost. You'd think that with irrefutable evidence of prosecutorial and judicial misconduct, a pardon or commutation would be a simple checking of a box. Article II of Constitution gives the President sole power and discretion in granting clemency. And the United States Supreme Court said in Herrera v. Collins, 506 U.S. 390 (1993) that clemency "is the historic remedy for preventing miscarriages of justice" and the "fail safe" in the United States criminal justice system. It is inarguable that the IRP6 case was a miscarriage of justice. Unfortunately, when politics are involved, the calculus is always more complex.
The IRP6 injustice should have been handled by the courts. Granting of clemency to the IRP6 without them feigning guilt presents a political quagmire. It would raise public questions about how U.S. Attorney of Colorado John Walsh, Judge Arguello and the 10th Circuit Court of Appeals ignored gross constitutional violations, prosecutorial misconduct, judicial misconduct and allowed six defendants to go to prison for 7-11 years for failure to pay corporate debts. In a federal justice system that "clamps down" on convictions irrespective of innocence and where officials are accustomed to not being held accountable for misconduct, this would satiate fears both subtle and gross. Politics and saving face for government officials almost always trumps the destruction of innocent lives and families in the U.S. justice system. Even when clemency is sought at the back-end of our criminal justice system for an obvious miscarriage of justice, prosecutors and judges would rather have the innocent feign guilt to nullify their misconduct to protect their careers.