From: A Just Cause <email@example.com>
To: ‘kenneth ditkowsky’ <firstname.lastname@example.org>
Sent: Thursday, October 22, 2015 8:40 AM
Subject: Part II: A Just Cause Continues To Question the Integrity of Justice and Due Process of the Appellate Court of the Tenth Circuit in the IRP6 Case
Source: A Just Cause
Part II: A Just Cause Continues To Question the Integrity of Justice and Due Process of the Appellate Court of the Tenth Circuit in the IRP6 Case
A Just Cause Contends That Appellate Court Conspired With the Lower Court to Violate Due Process and Civil Rights of Wrongly Convicted IRP6
DENVER, CO –(Marketwired – October 22, 2015) – A Just Cause (AJC) continues to explore the injustices and inequities that occurred in the IRP6 case, particularly with respect to the Appellate Court decision, which side stepped multiple critical issues in their decision against the IRP6, irresponsibly upholding the decision of the lower court. The Tenth Circuit Court of Appeal for the IRP6 case consisted of a three-judge panel that included Senior Judge Bobby R. Baldock, Judge Harris L. Hartz, and Judge Jerome A. Holmes (Judge Holmes wrote the opinion) (D.C. No. 1:09-CR-00266-CMA, Appellate Case 11-1492).
The IRP6 are six executives that worked at IRP Solutions Corporation, which was raided in February 2005. After the raid, false charges of mail and wire fraud were brought against the six executives known as the IRP6 — David A. Banks, Kendrick Barnes, Demetrius K. Harper, Clinton A. Stewart, Gary L. Walker, and David A. Zirpolo — who were all tried and wrongly convicted in 2011 for failure to pay debts to staffing companies related to completing software development work for sales to law enforcement agencies, specifically the Department of Homeland Security and the New York City Police Department (D. Ct. No. 1:09-CR-00266-CMA).
A Just Cause released a press release that focused specifically on the transcript and highlighted what the Honorable Judge H. Lee Sarokin, a well-respected, retired federal judge with many years of sitting on the appellate court, said about the case. He authored a five-part article series, ‘The Case of the Missing Transcript,’ on the Huffington Post, where he argues strongly in favor of the IRP6 and acknowledges the injustices in the case put forth by the government. Excerpts of Judge Sarokin’s conclusion declare, “…I still cannot shake my belief that an injustice has occurred in respect to their guilt…The government’s contention that their business was nothing but a scam defies reality…Now, although all of the legal arguments have been neatly sewn up and put aside, I cannot help but believe that the fabric of justice has been frayed in the process.”
“There are many unanswered question in the wake of the IRP6 Appellate decision. The missing transcripts that would substantiate a violation of their Fifth Amendments rights is just one of many questionable things that occurred in the case. There were also violations of the Speedy Trial Act, denial of bond pending appeal with conflicting accounts as to whether the appellate panel ever saw it, and expert witnesses who were denied the right to testify on behalf of the IRP6,” says Lamont Banks, Executive Director of A Just Cause. “The Tenth Circuit appellate judges, Baldock, Hartz and Holmes failed to do their due diligence in this case and simply rubber-stamped the decision of the lower court. There is little evidence that supports them looking at this case with fresh eyes or digging any deeper into the issues raised on appeal. The fact that they ruled against previous Tenth Circuit precedent is also of tremendous concern,” remarks Banks.
“We encourage everyone to look into the facts in the IRP6 case with an open mind and consider the deception of the courts. A Just Cause is certain that people will arrive at the same conclusion — many things went terribly wrong in the IRP6 case and multiple parties, working on behalf of the government as well as the court, have acted unlawfully and dealt treacherously with the IRP6. A grave injustice occurred for these men, all law abiding citizens with no prior criminal records, and it must be rectified,” concludes Banks.
“The calculations are clear regarding the Speedy Trial violation in this case,” argues Gwendolyn Lawson, IRP6 Appellate Attorney. “There are 48 days that were unaccounted for that neither the defense nor the prosecution requested. A review of the calculations will show that this is an egregious violation of the Speedy Trial Act,” adds Lawson (IRP 6 Case – Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
“A Just Cause made an interesting finding when reviewing the Tenth Circuit’s decision. The case law cited was nearly a verbatim copy and paste from the Larson case (IRP 6 Case – Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)). But, the outcomes diverged with the court granting Larson’s appeal while rejecting that of the IRP6,” exclaims Lisa Stewart of A Just Cause.
Regarding the IRP6 Speedy Trial violation assertion, the opinion by the Tenth Circuit Court of Appeals states, “At best, Defendants [IRP6] have demonstrated only one factor, the first, that weighs in favor of finding a violation of their constitutional right to a speedy trial. All other factors weigh against them. Accordingly, the balancing of the four factors establishes that Defendants’ Sixth Amendment right to a speedy trial was not violated,” (IRP 6 Case – Appellate Case: 11-1492, Document: 01019289332, 8/4/14).
Court records show that in the appellate case of United States v. Paul Andrew Larson, the opinion by the Tenth Circuit Court of Appeals states, “In summary, Barker’s first factor weighs in favor of Mr. Larson’s claim of a Sixth Amendment violation, while the remaining factors weigh against Mr. Larson. Absent extraordinary circumstances, Barker counsels us not to find a violation of the right to a speedy trial when the defendant’s actions indicate he had no desire for a speedy trial. Moreover, while prejudice is not essential to a violation, this court is reluctan[t] to find a speedy trial deprivation where there is no prejudice. Accordingly, upon balancing the four Barker factors, we conclude that Mr. Larson’s Sixth Amendment speedy trial right was not violated,” (United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)).
The opinion in the Larson case further states, “…[a]n indictment must be dismissed if the Speedy Trial Act is violated, but this dismissal may be with or without prejudice. A violation of the speedy trial requirement, by itself, is not a sufficient basis for dismissal with prejudice. Dismissals with prejudice should be reserved for more egregious violations of the Speedy Trial Act. For the reasons set forth above, we REVERSE the district court’s denial of Mr. Larson’s motion to dismiss for violating the Speedy Trial Act, AFFIRM the district court’s denial of Mr. Larson’s Sixth Amendment speedy trial right claim, and REMAND this action for the district court to determine whether the indictment should be dismissed with or without prejudice. Because we reverse and remand for a violation of the Speedy Trial Act, we need not and do not address Mr. Larson’s remaining claims,” (United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)).
“How does the Tenth Circuit Court of Appeals review the Larson case in 2010 and Reverse and Remand it back to the lower court, but four years later cite Larson in the IRP6 opinion, but rule against precedent, upholding the lower court’s decision?” questions Stewart (IRP 6 Case – Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)). “This case is full of contradictions and irregularities. The Tenth Circuit needs to consistently apply the law in all cases; such inconsistent rulings lead one to believe that other factors, beyond justice, balance and fairness are at play,” declares Banks.
A Just Cause also inquired why the court documents in the IRP6 case had not included a signature block for the judges. “No judge’s signature or signature block was on the replies from the court and this raises questions,” says Appellate Attorney Lawson. “I question why Clerk of the Court Elisabeth Shumaker’s signature block appears on all of the documents instead of the panel of judges,” questions Lawson (D. Ct. No. 1:09-CR-00266-CMA).
“I inquired with one of Judge Holmes’ assistants after the bond pending appeal document was not being signed by a judge, I was told that all judges on the panel had to review and sign off on those types of motions,” states a representative of A Just Cause, a strong supporter of the IRP6 and volunteer with A Just Cause. “Judge Holmes shows as the writing Judge, but there is no signature and that is a concern,” a representative of A Just Cause continues. “In reviewing the IRP6 case, it’s ironic that you can put two cases next to each other, both citing a Speedy Trial violation and get two different rulings, yet both opinions were by the same judge, Judge Holmes,” concludes a representative of A Just Cause (IRP 6 Case – Appellate Case: 11-1492, Document: 01019289332, 8/4/14 and United States v. Paul Andrew Larson, No. 09-4172, 627 F.3d 1198 (10th Cir. 2010)).
The A Just Cause representative was also given the run around when attempting to find out the status of both, the appeal and the bond pending appeal. A representative of A Just Cause called one appellate judge’s chambers, and spoke to several appellate judges’ assistants. She also spoke with Doug Cressler, the Chief Clerk for the Denver Appellate Court at the time. “On February 25, 2014, Claudette, Judge Hartz’s judicial assistant at the time, told me ‘cases were sent back to Colorado when they were done. They don’t keep any of the information in their office,’ when I inquired about the status and delay of the IRP6 appeal decision. She gave me the phone number to call the Appellate Court office in Denver for help,” states a representative of A Just Cause.
“A few weeks later on March 11, 2014, I called Doug Cressler, Chief Clerk in Denver Appellate Court. I told him I was given his name and number by Judge Hartz’s Judicial Assistant in New Mexico, who said he could help me. I asked him for the status of the IRP6 case. He asked for the case number and I provided it to him. He said, ‘The case was returned to this office in May 2013.’ I repeated, ‘May 2013.’ He said, ‘Yes, but it is still pending an Opinion.’ I asked, ‘Is an Opinion the same as a Decision?’ He said, ‘Yes.’ I asked how it is still pending when Appellate Judge Hartz’s judicial assistant said it was returned to your office. Cressler stated ‘they still have to make a final decision.’ In a follow up discussion later that day, however, Claudette stated, ‘It does not come back to this office,'” recalls a representative of A Just Cause. “It was just a confusing mess and despite multiple calls over several months to many different offices, A Just Cause was no closer to receiving answers about the IRP6 case,” concludes a representative of A Just Cause.
“Inquiries to the various offices regarding bond pending appeal was no different. Mary, Judge Holmes’ judicial assistant at the time, told me on July 1, 2014 that her office hadn’t received the bond pending appeal application filed on June 28, 2014. She asked where was it filed and I told her the Denver Office. She said, ‘Denver should have emailed it to us.’ Then I explained to her about the previous bond pending appeal motions and asked if they had received either of them. She said, ‘No, I check the computer every ten minutes or so to see if we have received any motions for review.’ I asked Mary what the process was for the Motions to get to their office and she explained that after filing in Denver; Denver logs them in and immediately emails them to the Appellate Judges. I asked if all the judges have to review and sign them and she said, ‘Yes, especially in cases of Bond Motions.’ Claudette from Judge Hartz’s office confirmed the same, that the bond pending appeal motion was not received,” states a representative of A Just Cause.
“A Just Cause representatives struggled to get answers from the courts and to date, we’re still unsure if the bond pending appeal motions were ever sent to the appellate judges by the Denver office, per the standard process. The IRP attorneys received decisions, signed by only clerks and inquiries on the status contrasted sharply and we didn’t know who to believe or where the documents were at any given time. Sadly, we may never uncover if the Denver office sent them to the appropriate judges for review,” remarks Banks.
“The sad part is that the men known as the IRP6 are away from their families and locked up for 87 to 135 months. They never got justice or the equal justice the United States espouses. A Just Cause will continue to pursue every avenue to bring them home to their families where they belong,” concludes Stewart.
For more information about the story of the IRP6 or for copies of the legal filings go to http://www.freetheirp6.org.
Related press releases: http://www.a-justcause.com/#!2015-press-releases/cl69
A Just Cause
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