Opinion Shows 10th Circuit Erred in Failing To Reverse Conviction of IRP6 For Missing Transcript.
Denver, CO -- (ReleaseWire) -- 11/28/2016 --According to the November 16, 2016 edition of Bloomberg's BNA Criminal Law Reporter, the Georgia Supreme Court reversed a murder conviction because there was no way for the appellate judges to satisfactorily evaluate the appeal without key portions of the transcript related to closing arguments and jury charges. "Where the missing transcript prevents adequate review of the trial...a new trial is warranted said the Georgia Supreme Court (Sheard v. State, 2016 BL 370419, Ga. no. S16A1291, 11/7/2016).
In November 2015, former federal appeals judge H. Lee Sarokin (U.S. 3rd Circuit Court of Appeals) sent a letter to President Obama asking that the clemency petition of six Colorado Springs technology executives, known as the IRP6, be granted because the federal courts in Denver failed to reverse their conviction, in part from a critical portion of their transcript that was missing for appeal. The IRP6 have been wrongly-imprisoned at a federal prison camp in Florence, Colorado for over 4 years. Sarokin gained notoriety for reversing the triple-murder conviction of famous middleweight boxer Rubin "Hurricane" Carter, who was portrayed by Denzel Washington in the movie "The Hurricane".
In the IRP6 case (District of Colorado case no. 09-cr-00266-CMA), the 10th Circuit Court of Appeals could not satisfactorily evaluate the appeal because critical portions of the trial transcript was missing where pro se defendants say trial federal judge Christine M. Arguello forced them to testify against their will and threatened to immediately terminate their defense if they didn't comply. Trial transcripts show that Arguello denied coercing the defendants but refused the IRP6's request for the transcript to resolve the issue. "I am not going to have an expedited, and unedited version (of the transcript) delivered to the defendants," said Arguello. Strangely, the key transcript was never produced for appeal, but unlike the Georgia Supreme Court, the 10th Circuit Court of Appeals erred in not reversing the conviction. Sarokin spoke about the IRP6 case to A Just Cause BlogTalk radio program on April 15, 2014.
"If there were a case such as this where there is a claim that the judge said or did something that compelled the defendants to testify, or at least gave them the impression that they had to testify, and there was no transcript...an appellate court would do one of two things," said Sarokin "They'd either order the transcript be produced or they'd have to reverse the conviction because the unavailability of the transcript makes it impossible for the appellate court to determine whether or not a prejudicial error has been committed," explained Sarokin. "You certainly cannot decide it if the critical discussion is not before the appellate court," argues Sarokin. "How are they going to decide if they don't have the information?" questioned Sarokin. "What I find interesting is that the judge is resisting" and "why would [Judge Arguello] resist presentation of the transcript?" pondered Sarokin.
In a hearing related to a civil suit filed by AJC for production of the transcript, Denver federal judge R. Brooke Jackson confirmed that "it is undisputed that Judge Arguello said something that does not appear in the transcript" and she provides no explanation why her statements were not recorded (Dist. Colo. case 13-cv-02260-RBJ, Doc. 37, filed 4/18/2014). "Having now resolved the factual issue so clearly by an independent court, one cannot help but wonder wherein lies the delay," said Sarokin on the Huffington Post. "If there is no way to determine whether or not the Fifth 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?" charged Sarokin.
A 2016 judicial complaint (http://bit.ly/2ba9827) filed by the IRP6 defendants is pending before the 10th Circuit judicial council that presents, in part, evidence that the judge's intentionally disregarded prevailing law regarding missing transcripts, citing indisputable Supreme Court and 10th Circuit case law about the judge's responsibilities in dealing with missing transcripts that are unavailable for appeal. The complaint also includes issues related to the intentional disregard of law related to exclusion of expert witnesses.
In part 3 of a five-part series called "The Case of the Missing Transcript, Judge Sarokin presents facts and "uncontroverted evidence" directly from the trial records that required reversal of the IRP6 conviction. (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-case-of-the-missing-t_1_b_5340397.html). "To this day, the transcript of that colloquy between the Court and petitioners on this critical issue has NEVER BEEN PRODUCED. It does not exist --- if it ever did," exclaims Sarokin.
U.S. Senator Michael Bennet (D-CO) and Congressman Danny Davis (D-IL) have joined Sarokin by sending letters to Obama for the IRP6's clemency. "It will be an epic travesty of justice if President Obama does not grant clemency for this obvious injustice," says Lamont Banks, Executive Director of A Just Cause. "A Just Cause is in contact with other members of Congress, including Congressman Jason Chaffetz (R-UT), Chairman of the Government Oversight and Reform Committee to request an investigation into the government's handling of the missing transcript," concludes Banks.
The Washington Post published an article on the case at http://www.wapo.st/29jXqSC.