Judge H. Lee Sarokin says Court of Appeals has enough evidence to conclude that IRP6’ rights were ‘indeed’ violated and the court should ‘either reverse and remand for new trial or dismiss’
IRP (Investigative Resource Planning) Solutions was a small, Black-owned software development company with 15-19 employees that competed against big businesses such as Lockheed Martin and IBM for lucrative, multi-million-dollar government contracts.
Looking back on the raid of IRP Solutions’ business, conducted in 2005 by 21 FBI agents, it is apparent that IRP’s direct competitors were not going to let a small, Black-owned company win a substantial and lucrative contract that had been theirs for years.
Big businesses set out to steal IRP Solutions’ intellectual property and have the six owners put in prison on trumped up charges to eliminate them as a strong competitor, and they were falsely accused of mail fraud. What should have been a civil trial, involving a debt collection case filed by staffing agencies, turned into a criminal fraud case pursued by overzealous Denver Assistant U.S. Attorney Matthew T. Kirsch.
The IRP6 case was tried in a federal criminal court and resulted in the IRP6 – Kendrick Barnes, Gary L. Walker, Demetrius K. Harper, Clinton A. Stewart, David A. Zirpolo and David A. Banks – being sentenced to seven to 11 years each in Florence Correctional Complex prison camp in Florence, Colorado. They have now served 22 months while their case is on appeal.
Big businesses set out to steal IRP Solutions’ intellectual property and have the six owners put in prison on trumped up charges to eliminate them as a strong competitor.
“These six computer software executives are being punished for achieving success in the 21st century,” writes Mary Neal about the IRP6. “This would not have happened to the men if they were working for one of the computer companies in Silicon Valley, but they had the audacity to start their own software company and use their intellect to design and patent their own software that was expected to be in high demand and quite lucrative. One of the wrongfully incarcerated IRP6 executives is a Caucasian, but Whites who partner with Blacks were, and apparently still are, also considered expendable.
“These six computer software executives are being punished for achieving success in the 21st century,” writes Mary Neal about the IRP6.
“What happened to the IRP6 serves as a warning to other gifted Black computer programmers and software experts to remain employees of software companies founded by whites, rather than establishing their own competing companies. Those who try to compete will be jailed like the IRP6 or lynched like Tom Moss, Calvin McDowell and Henry Stewart were in Memphis in the 1800s when their grocery store drew customers from the white store owner.”
Who are Moss, McDowell and Stewart? Writer Mary Neal explains: “In March of 1892, Ida B. Wells, a journalist and former Memphis school teacher, started a crusade against lynching after three friends were brutally murdered by a Memphis mob. Tom Moss and two of his friends, Calvin McDowell and Henry Stewart, were arrested for defending themselves against an attack on Moss’ store.
“Moss was a highly respected figure in the Black community, a postman as well as the owner of a grocery store. A white competitor, enraged that Moss had drawn away his Black customers, hired some off-duty deputy sheriffs to destroy the store. The Black store owners shot at the white men, not knowing they were police officers.
“The Black store owners were arrested and lynched. Ida B. Wells wrote a scathing article about the lynchings, then left Memphis and never dared to return. (Read more in ‘The Rise and Fall of Jim Crow.’)
“Whenever Blacks have accomplished upward mobility during and since Reconstruction, racist white supremacists have been allowed to destroy them and their achievements. This happened throughout the country in Tulsa, Oklahoma; Rosewood, Florida; Forsyth County, Georgia; and elsewhere. It still happens today. … They still suppress Black achievement, then call us lazy.”
Now the retired judge who reversed Rubin “Hurricane” Carter’s triple murder conviction has taken an interest in the IRP6 case. On May 5 and 16, 2014, retired federal appellate Judge H. Lee Sarokin posted a three-part series on Huffington Post: “The Case of the Missing Transcript,” “The Missing Transcript Case Becomes More Curious – Part II” and “The Case of the Missing Transcript Solved – Part III.”
In Part I, Judge Sarokin writes, “Because there is always a danger in these matters of hearing one side, I insisted that I be furnished with the government’s version of what transpired in this disputed exchange.”
Court records from the criminal trial of the IRP6 show that the men, who represented themselves, argued a Fifth Amendment violation during trial, saying that trial Judge Christine Arguello had “forced” one of the defendants to take the witness stand or she would “rest their case.” The IRP6 argue that the transcript to prove the Fifth Amendment violation was not provided to them during trial.
Court records show that Court Reporter Darlene Martinez admits to omitting 200 pages of the transcript, and that federal Judge Christine Arguello did not release the omitted pages.
According to court records, Judge Arguello stated, “First of all, the unedited version (of the transcript) cannot be used for any purpose … how many pages is it?” Martinez affirmed, “Over 200 pages.” “Over 200 pages,” Judge Arguello repeated; “no purpose that I can see would be served by having that at this time.” She concluded, “I am not going to have an expedited and unedited version (of the transcript) delivered to the defendants (the IRP6).”
The retired judge who reversed Rubin “Hurricane” Carter’s triple murder conviction has taken an interest in the IRP6 case.
In Part II of his series in the Huffington Post, Judge Sarokin writes: “In my earlier post I mentioned that a separate civil suit was instituted against the court reporter to turn over the transcript. That suit was dismissed on legal grounds, but now having read the court’s opinion, its factual findings confirm without question the defendants’ contention – not about what was said, but rather that there is no record of what was said.”
“Judge R. Brooke Jackson (in the civil suit) … made detailed factual findings,” added Judge Sarokin. “Very significant to me is that following th(e) exchange between the defendants and the Court, Mr. Barnes, one of the defendants, took the stand, and shortly thereafter it was government counsel that expressed concern. He asked the court to make it clear on the record that all parties ‘had every reason to believe that Mr. Barnes intended to testify no matter what happened in this case … regardless of the fact that the defense otherwise ran out of witnesses this morning.’ Why would he (the prosecutor) bring it up, unless he was concerned that something had transpired which made that clarification necessary?”
“But having now resolved the factual issue so clearly by an independent court, one cannot help but wonder wherein lies the delay? 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?” asked Judge Sarokin.
In Part III, the judge lists 10 “uncontested facts upon which the court could reach a determination that the right against self-incrimination was actually violated by the trial court even without the critical transcript.” Judge Sarokin concludes: “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 the defense remain open; and that 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.”
“When A Just Cause saw what Judge Sarokin wrote in the Huffington Post, there were obviously positive responses,” recalls Sam Thurman of A Just Cause, a volunteer organization that works on behalf of the wrongfully convicted. “To have someone of Judge Sarokin’s stature review this case through a fresh set of eyes and come to the conclusions that he does is awesome.”
“To have someone of Judge Sarokin’s stature review this case through a fresh set of eyes and come to the conclusions that he does is awesome.”
The Appellate Court panel in the IRP6 case is composed of Senior Judge Bobby R. Baldock, Judge Harris L. Hartz and Judge Jerome A. Holmes. Famed attorney Mark Geragos is now representing the IRP6.
A Just Cause is requesting support for a petition regarding the IRP6 case transcript. AJC has also posted a series of press releases outlining the progress of the campaign to free the IRP6. For more information on the IRP6 and their case, including links to court transcripts and other legal documents, visit Free the IRP6 at http://www.freetheirp6.org/ and on Facebook at https://www.facebook.com/FreetheIRP6.