Gorsuch Opinion Proves His 10th Circuit Peers Disregarded Law and Constitution

Denver, CO -- (ReleaseWire) -- 02/13/2017 --"President Trump's current criticism of federal judges, while unwarranted, is refreshing because the media takes a hands-off approach in dealing with wrongdoing by federal judges and prosecutors, even when there is irrefutable evidence," says Lamont Banks, Executive Director of A Just Cause. Today, A Just Cause presents an opinion by Supreme Court nominee Neil Gorsuch where he reversed and remanded a criminal case on the same legal grounds his 10th Circuit peers, trial judge Christine M. Arguello, U.S. Attorney John Walsh and federal prosecutor Matthew T. Kirsch, disregarded to uphold the wrongful conviction in the IRP6 case (Dist. Colo. no. 09-cr-00266-CMA), which is the subject of a judicial complaint (http://bit.ly/2ba9827) and a letter (http://bit.ly/2b06Rpm) to Chief Justice of the U.S. Supreme Court, John Roberts.

In the 2014 10th Circuit case (No. 13-1363), Gorsuch found that when both the federal prosecutor and trial judge misstates the law, it warrants reversal. Gorsuch stated the following in his opinion:

"The transcript of the hearing shows the government misstating the law. The transcript then shows the court signaling its agreement with the government's mistaken view of the law. After that, however, the transcript never shows the government or the district court disavowing the error...But even if the government isn't willing to correct the error it invited, this court retains power to do so under its authority to address plain but unpreserved errors...But we can think of few things that affect an individual's substantial rights or the public's perception of the fairness and integrity of the judicial process more than a reasonable probability an individual will linger longer in prison than the law demands because of an obvious judicial mistake."

In the IRP6 case, trial transcripts show Kirsch intentionally misstated the law, specifically Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure, which states: "The defendant must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use...at trial, IF (and only if) -- the defendant requests disclosure of the government and the government complies." Congressional judiciary committees make it clear in their Rule 16(b)(1)(C) advisory notes that the disclosure of expert summaries are "defense triggered" and stress that defendants are not required to turn over written summaries unless they first make a request for written summaries of government experts and the government provides them to the defense. However, Kirsch, absent any "defense triggered" requests from the IRP6 defendants, argued to Judge Arguello that he was still entitled to defense expert witness summaries and asked Judge Arguello to exclude defense experts from testifying for failing to comply with Rule 16. Judge Arguello agreed with the government's misstatement of Rule 16, issued a ruling based using the government's false representation,s and improperly excluded the expert witnesses in violation the IRP6's 6th Amendment constitutional right to present witnesses in their favor. Shockingly, when the case was appealed to the 10th Circuit, three of Gorsuch's colleagues (Judges Bobby Baldock, Harris Hartz & Jerome Holmes) used the same Rule 16 misrepresentations in their August 2014 opinion (10th Cir. case no. 11-1487), concluding that Judge Arguello didn't abuse her discretion or violate the IRP6's 6th Amendment rights when she misstated the law and wrongly excluded the expert witnesses. Judges are presumed to know the law and it is completely unreasonable to conclude that Kirsch, Judge Arguello and the highly-experienced and reputed 10th Circuit judges Baldock, Hartz and Holmes did not know or understand Rule 16(b)(1)(C) or their requirement to reverse the conviction. The only rational conclusion is that these officials acted intentionally and maliciously to violate the law and the constitutional rights of the IRP6.

It is telling and worth mentioning that Judge Holmes, in writing the 10th Circuit opinion, didn't cite the entire Rule 16(b)(1(C) statute but only the first half that benefits the government's argument, stating that the defendant "must, at the government's request, give to the government a written summary of any testimony that the defendant intends to use...at trial." Judge Holmes conveniently eliminated the second half of the statute that cites the "defense triggered" condition upon which the government was entitled to receive the summaries, specifically that: "IF -- the defendant [first] requests disclosure of the government and the government complies" then the government is entitled to receive written summaries of defense experts.

The judicial complaint also discusses a gross 5th Amendment violation which has to be one of the worst constitutional transgressions in American history. The 5th Amendment of the U.S. Constitution states that "no person...shall be compelled in any criminal case to be a witness against himself..." but in the IRP case Judge Arguello threatened to terminate the pro se defendants defense if they did not agree to testify after a subpoenaed law enforcement witness failed to appear. Fearing their defense and their lives were in jeopardy, the pro se defendants huddled together and decided who would first testify and took the stand against their will. During cross-examination, the frustrated defendants interrupted Kirsch in front of the jury and complained to the judge they were forced to testify. Judge Arguello denied threatening the defendants but when the IRP6 requested the transcript, Judge Arguello refused, saying she could not remember what her "exact phrasing" was and speculated that her statements were not recorded because the court reporter's headphones may have fell off or the defendants were speaking too far from the microphone. Kirsch and his co-prosecutor, Suneeta Hazra, were present at the sidebar and heard Judge Arguello's statements but remained silent to benefit from Judge Arguello's coercion. The judicial complaint cites unambiguous 10th Circuit and Supreme Court law that required a reversal of the conviction which was ignored by the 10th Circuit panel, who, without the sidebar transcript, absurdly asserted the defendants voluntarily testified -- an unimaginable conclusion starkly contradicted by trial transcripts even without the missing sidebar portion -- contradictions discussed by former federal appeals judge H. Lee Sarokin at (http://www.huffingtonpost.com/judge-h-lee-sarokin/the-case-of-the-missing-t_1_b_5340397.html).

None of the 10th Circuit judges, Judge Arguello or Kirsch has disavowed their mistake or taken responsibility for their violations of the law and the Constitution that resulted in the defendants not receiving a fair trial, not receiving a fair appeal and being wrongly imprisoned. Judge Andrew Hurwitz of the 9th U.S. Circuit Court of Appeals says it is not uncommon for federal judges to avoid taking responsibility for their mistakes or admit wrongdoing. "To err is human, but "to make a mistake and stubbornly refuse to acknowledge it -- that's judicial," Hurwitz said in the June 9, 2014 Arizona Law Review. "Federal judges and prosecutors have been turned into infallible Gods by the mainstream media and many legislators who are so awestruck by their unbridled power are unwilling or scared to criticize or hold them accountable, even when there is undeniable proof they violated the constitutional rights of individual citizens," says Banks.

The February 8, 2017 Bloomberg Criminal Law Reporter (Vol. 100, No. 18, pp. 392-393) reported that Judge Gorsuch says he is willing to follow the law when he doesn't like the outcome and insists that courts "adhere strictly to the text of federal statutes" which his 10th Circuit peers failed to do in the IRP6 case. If Judge Gorsuch is to be the next Supreme Court justice, he should have the integrity, fidelity and commitment to the Constitution and rule of law to speak out and correct injustice wherever he sees it, even when it involves judicial colleagues within his own circuit.

"The malicious actions of Kirsch, Judges Arguello, Baldock, Hartz and Holmes deserves criticism from President Trump, the media and Judge Gorsuch, but it is unlikely to happen because the image of federal justice officials and other big government interests are valued more in America than the life and liberty of the IRP6 and the pain and suffering of them and their families," concludes Banks.