The Same Prosecutorial Ruse Used in the IRP6 Case Is Challenged by Former Justice Department Executives Before the Supreme Court, Says Advocacy Group, A Just Cause

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August 13, 2015 by socialaction2014

Source:
A Just Cause
August 13, 2015 11:12 ET

The Same Prosecutorial Ruse Used in the IRP6 Case Is
Challenged by Former Justice Department Executives Before the Supreme
Court, Says Advocacy Group, A Just Cause

Prosecutor’s Concealment of Transcript Takes Center
Stage as Ex-Justice Department Dream Team Files Supreme Court Brief
Against Their Colleagues’ Misconduct

DENVER, CO–(Marketwired – August 13, 2015) – “In
October 2014, the Supreme Court of The United States denied to hear the
IRP6’s case (United States v. Banks, et. al, No. 14-229) where the
brief sets forth facts that federal prosecutor Matthew T. Kirsch and
Judge Christine M. Arguello conspired to violate the Constitution by
concealing and/or destroying court transcripts and excluding key witness
testimony that would have harmed the prosecution’s case,” says Lamont
Banks, A Just Cause.
According to the New York Times,
another case with a strikingly similar instance of prosecutorial
misconduct, (Georgiou v. United States, No. 14-1535), has reached the
high court. This time in a brief, filed by a dream team of Ex-Justice
Department executives, where they allege that prosecutors concealed a
transcript and reports from a key witness that could have damaged the
prosecution’s case. The brief states that the win-at-any-cost approach
by prosecutors “contributes to a harmful notion that the criminal
justice system is a game, and that victory rather than justice is a
prosecutor’s goal.”

“Prosecutors concealing evidence to win
convictions has become the norm in the U.S. Justice System,” says Lamont
Banks, “and a tipping point has been reached when former justice
department executives are taking their colleagues to task on misconduct.
Unfortunately, most judges, as we have witnessed in the IRP6 case, are
functioning as if they’re impotent and incapable of reining in
prosecutorial misconduct.”

The Times reports that the Justice
Department dream team is comprised of 20 former Justice Department
officials from the Obama, Reagan, Clinton and Bush Administrations,
including Reagan Attorney General, Michael Mukasey, Obama Solicitor
General, Seth P. Waxman, Obama’s White House Counsel, Greg Craig,
Clinton’s acting Solicitor General, Walter Dellinger, Bush Deputy
Attorney General, Larry Thompson, Clinton Deputy Attorney General, Jamie
Gorelick, Bush’s acting Attorney General, Peter Keisler, and Obama’s
acting Solicitor General, Neal K. Katyal, who is representing Mr.
Georgiou.

The misconduct in the Georgiou case was the
prosecutors’ failure to provide a transcript and report that showed his
business partner, (Kevin Waltzer), who was a key witness, had turned
government informant and had been taking drugs to combat mental health
problems, including anxiety, depression and bipolar disorder.
Unapologetic prosecutors blamed defense attorneys for not being diligent
enough to locate the documents. Keisler stated that the Supreme Court
should hear the case to vindicate a fundamental principle. “The
essential role of a government prosecutor is to seek justice, not simply
or always to win convictions,” says Keisler. “That role requires the
prosecutor, in order to help ensure a fair trial, to make broad
disclosure to a criminal defendant of the information the government
possesses. The decision challenged in this case weakens enforcement of
that fundamental requirement,” Keisler elaborated.

“In
the IRP6 case, AUSA Kirsch engaged in prosecutorial misconduct when he
concocted and carefully executed a ruse to have defense witnesses that
would damage his case excluded from testifying. The law was clearly not
on his side, but sadly, Judge Arguello and the U.S. Tenth Circuit Court
of Appeals supported him in his misconduct,” says Lisa Stewart, A Just
Cause.

The IRP6 case concerns six Colorado software executives,
(David A. Banks, Clinton A. Stewart, Kendrick Barnes, David A. Zirpolo.
Demetrius K. Harper and Gary L. Walker), of the IRP Solutions
Corporation who developed Case Investigative Life Cycle (CILC) criminal
investigations software for federal, state and local law enforcement. In
2011, the IRP6 were wrongly convicted of mail and wire fraud charges in
a federal court in Denver, Colorado.

Court
records show that AUSA Kirsch objected to the IRP6 expert witnesses
testifying on the basis of Rule 16 violation. Rule 16(b)(1)(c) of the
Federal Rules of Criminal Procedure, Expert Witnesses, requires that a
defendant, at the government’s request, must give to the government a
written summary of any testimony that the defendant intends to use as
evidence at trial, IF AND ONLY IF the defendant first requests
disclosure of government expert witnesses. “The government didn’t have
any expert witnesses; therefore, we never requested or had a reason to
ask the government to disclose anything about expert witnesses,” says
David Banks (IRP6). The IRP6 Supreme Court brief, cited the 2008 and
2009 U.S. v. Nacchio opinions issued by the U.S. 10th Circuit Court of
Appeals. The 2008 three judge panel stated that, “it bears to mention
that a defendant is NOT required to file a Rule 16 disclosure unless the
defendant has made a similar request of the government… and the
government has complied.” The 2009 en banc Nacchio opinion confirmed the
2008 decision, saying, “Rule 16 does not require experts in criminal
cases to provide written reports explaining their opinions or to make a
written proffer containing the information required in civil rules.” The
brief also cited other 10th Circuit cases that indicate Judge Arguello
and 10th Circuit ignored their own precedent, including U.S. v. Charley,
151 F.3d 1251(10th Cir. 1999) and U.S. v. Golyansky, 291 F.3d 1245
(10th Cir. 2002), where the Court held that exclusion of a witness is
almost never imposed absent a constitutional violation, statutory
authority, or bad faith on part of the defendants.

“It is hard to
imagine how the AUSA Kirsch and Judge Arguello allowed the violation of
my client’s right to a proper defense by denying the testimony of two
expert witnesses on the basis of Fed. R. Crim. P. 16. The government
acknowledged receipt of the witnesses’ credentials and the names of the
expert witnesses were provided on the witness list prior to the
commencement of the trial proceedings,” says IRP appellate attorney,
Gwendolyn Lawson. “The IRP6 were denied a fair trial and have spent
three years in prison because judges don’t have the courage, moral
conscience or political will to oppose government prosecutors. The IRP6
suffered abuse from the prosecutor, judges and FBI,” exclaims Lawson.

The June 30, 2015 Wall Street Journal Law Blog
reported that Judge Alex Kozinski of the Ninth U.S. Circuit Court of
Appeals, an outspoken critic of prosecutorial misconduct, discussed his
concern about the reluctance of judges to blow the whistle on
prosecutorial abuse in the Georgetown Law Journal. “Defense lawyers who
are found to have been ineffective regularly find their names plastered
into judicial opinions, yet judges seem strangely reluctant to name
names when it comes to misbehaving prosecutors. Indeed, judges seem
reluctant to even suspect prosecutors of improper behavior, as if they
were somehow beyond suspicion. Naming names and taking prosecutors to
task for misbehavior can have magical qualities in assuring compliance
with constitutional rights,” said Kozinski.

Court records in the
IRP6 case also show that all six pro se defendants swore in affidavits
that Judge Christine M. Arguello forced them during a sidebar to take
the stand against their will under the threat of canceling their
defense. The record reflects Judge Arguello denied compelling them to
testify, saying she didn’t “know what her exact phrasing was,” and
refused to provide the unedited transcript at the request of the
defendants to prove what was said.

Retired Federal Judge, the
Honorable H. Lee Sarokin of the 3rd U.S. Circuit Court has been an
outspoken critic of the prosecutor, judge and 10th U.S. Circuit Court of
Appeals for failing to turn over court transcripts of a sidebar where
the IRP6 defendants claimed that Judge Arguello forced them to testify
against their will. Sarokin wrote a five-part series on the Huffington Post called “The Case of The Missing Transcript.”

After
reviewing court transcripts, Judge Sarokin recognized the fact that the
IRP6 immediately caucused following the sidebar before taking the
witness stand. Sarokin also questions why the prosecutor, shortly after
one of the IRP6 defendants took the stand, wanted clarification that the
defendants intended to testify despite the judge’s comments at the
sidebar. “Clearly,” Sarokin says, “he [the prosecutor] was concerned
about the Court’s comments at the sidebar,” and that the defendants may
have construed them as coercive. “The failure to have a record of that
conversation must be laid at the feet of the court or the government…
[neither] 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,” Sarokin adds.

“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; that defendants reasonably believed
that at least one of them was required to testify in order to have their
defense remain open; and 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,” Sarokin concluded.

“I was not only disturbed by the
condescending tone of the opinion as it relates to the IRP6’s complaints
about the missing transcript, but also the judges’ cavalier disregard
for case law supported in the Tenth Circuit provisions for court
reporting procedures and the Constitution,” says Gwendolyn Lawson,
IRP6’s appellate attorney. “Judges Baldock, Hartz and Holmes ignored the
elephant in the room and issued a jumbled explanation regarding the
transcript,” adds Lawson.

On
page 43 of the 10th Circuit opinion in the IRP6 case, the appellate
panel says that even if they assume that Judge Arguello violated the
defendants’ constitutional rights and forced them to testify against
their will, they could not prevail on the appeal because the pro se
defendants could have called FBI Agent John Smith, who was listed on
their witness list and in the courtroom seated next to Kirsch. “What a
flimsy, disgraceful justification by judges who took the oath to uphold
the Constitution and respect the rule of law,” says Lawson. “Those
judges are fully aware that every person on the witness list is not
always called to testify. In fact, the prosecutor rested his case early
without calling all of the witnesses on his witness list. Furthermore,
if Agent Smith had been called and his direct and cross-examination
combined took 20 minutes, an IRP6 defendant still would have succumbed
to Arguello’s threat and took the stand thereafter. The panel’s
deficient legal calculus doesn’t resolve the constitutional violation
perpetrated by the judge,” argues Lawson.
“The
Supreme Court opinion in 1974 U.S. v. Nixon case said that the
exclusion of criminal defense evidence undermines the central truth
seeking aim of the criminal justice system because it can deliberately
distort the record and risk misleading the jury into convicting an
innocent person,” says Lamont Banks. “Prosecutors understand this, but
it doesn’t matter to them when their only goal is to win a conviction. I
hope the Supreme Court agrees to hear the Georgiou case and our fight
continues to free the innocent IRP6 who lost their freedom because of a
win-at-any cost prosecutor, dishonest trial judge and crony appellate
panel,” concludes Banks.

Contact Information

CONTACT INFORMATION
A Just Cause
(855) 529-4252 extension 703
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