Judge H. Lee Sarokin - Speaks Out on Missing Transcript Needed for Appeal in IRP6 case in Colorado -

Judge H. Lee Sarokin served on the United States District Court (N.J.) appointed by President Carter, and the United States Court of Appeals (3rd Cir.) appointed by President Clinton. He retired in 1996 after 17 years on the federal bench and now resides in Rancho Santa Fe, CA.  He is also known for, overturning the Rubin “Hurricane” Carter wrongful convictions case in 1985.

Part I:  The Case of the Missing Trial Transcript

Defendants in a Colorado case, United States of America v. Banks et al., claim, in addition to asserting their innocence, that their Fifth Amendment rights were violated when the trial judge compelled them to testify. Following a jury trial, all six defendants (five black and one white), known as the "IRP6," were convicted of mail fraud or conspiracy, were sentenced to terms of imprisonment ranging from 87 to 135 months beginning in July 2012, and are presently incarcerated pending appeal. They represented themselves during the trial, and although they were aware of their right against self-incrimination (and named themselves on a potential witness list), they contend that the judge compelled waiver of that right. Apparently the judge was frustrated by their failure to produce witnesses in a timely fashion, and they claim the judge said something that led them to believe that at least one of them had to testify in order to keep their defense open. The case is now on appeal. Usually out of deference to the circuit court handling the matter, I would not comment. However, there is one aspect of the case that intrigues me, and since the matter has been pending for a considerable period while the defendants languish in  prison, I thought some general airing might be appropriate.

Resolving the issue should be a no-brainer, right? Look or listen to the transcript; read or hear what the judge said and decide whether or not the defendants reasonably concluded that at least one of them had to testify. But here's the rub. There apparently is no record or transcript of the conversation available to either the defendants or the appellate court. The advocates for the defendants (a-justcause.com), who have asked me to review and comment on this matter, claim that efforts to obtain the record of the conversation between the judge and the defendants on this issue have been met variously with claims that there is no record (the reporter missed the conversation), that it exists but is missing, that it existed but has been destroyed, or that "we have it but won't turn it over." They also claim that all informal and formal attempts to obtain that critical exchange between the court and the defendants have been denied either by the court reporter or the court. They advise that the relief was even denied in a separate civil suit brought against the reporter for the turnover of the transcript.

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. The government's brief (U.S. Answering Brief) summarily dismisses the claim by stating, "Because nothing in the record other than the defendants' own self-serving assertions supports their claims of compulsion,the exact language used by the district court during the sidebar conference is immaterial" (emphasis mine). Roughly translated, the statement should read, "There is nothing to support the defendants' position on the record, because there is no record." It is an obvious concession by the government that the record before the court of appeals does not contain evidence of what the trial judge said to the defendants -- which they claim caused them to  believe that they had to testify or be foreclosed from proceeding with their case.

Although the defendants vehemently proclaim their innocence, I do not have sufficient information to comment on their convictions. But I have no doubt that whether or not they felt compelled to testify depends exclusively on what the judge said to them at that precise moment. To suggest that the court's "exact language" is immaterial is ludicrous, particularly since the court and the defendants disagree as to what was said.

Certainly no judge would direct a criminal defendant to testify against his or her own will, but it is conceivable that something was said that reasonably led them to that conclusion. The answer lies in the record, which apparently does not exist, for reasons that seem to be elusive. The case raises numerous other serious questions about the prosecution, conviction and incarceration  pending appeal of these defendants, but my comfort level limits me to this one strange mystery: the missing transcript. The case does raise the question of why six respected businessmen would engage staffing companies to hire and pay workers for a project that (as the government contends) defendants had no intention of completing and selling. Were they just interested in increasing the level of employment in their community? Or were they merely a typical company whose goals were delayed in fruition, did some puffing in the process and owed money as a result?

Law shouldn't discourage the truth

The following editorial was published by the Chicago Sun Times on May 5, 2014.

Our court system must always keep a door open for the truth, but too often it is closed.

Under a badly written Illinois law, a person can be charged with perjury for admitting that his or her earlier testimony — even if given many years earlier — was a lie.

That’s problematic, because a fair society wants people to come forward if they’ve caused an injustice by lying under oath. But if they fear going to prison for doing so, you can bet they’ll keep their mouths shut.

In one well-known Cook County case in 1985, a woman named Cathleen Crowell Webb came forward and said she had lied eight years earlier when she accused a man named Gary Dotson of raping her. Authorities didn’t believe her until DNA testing proved Dotson’s innocence in 1988. He finally was pardoned in 2002.

At the time, the Cook County state’s attorney could have prosecuted Webb for perjury, but he didn’t. That turned out to be a wise decision.

Now, former U.S. Attorney and Gov. Jim Thompson, who personally led clemency hearings in 1985 on the Dotson case, is among 23 highly regarded former judges and prosecutors who are worried about a new case that could have a chilling effect on future witnesses who want, finally, to come clean. On April 24, the former judges and prosecutors sent a letter to State’s Attorney Anita Alvarez expressing concern about the perjury prosecution of a man named Willie Johnson.

Johnson, who had a serious criminal record of his own, first testified in 1994 against Cedric Cal and Albert Kirkman when they were on trial for a double murder on the South Side. But seven years later, in 2011, he testified that he had lied because telling the truth back then would have endangered him and his family. By then, Johnson had moved out of Illinois, had been disabled in a car accident, was married and living on Supplemental Social Security Income, and was staying out of trouble. But a judge ruled Johnson’s recantation was not credible, just as an earlier judge had ruled Webb’s recantation was not credible, and Johnson was charged with perjury.

In their letter, the former judges and prosecutors warn that the perjury charges are “contrary to the interests of justice,” and they certainly should know. Their collective experience with our criminal justice system, from all perspectives, is deep, broad and sophisticated. They know of what they speak.

Just as they urge, the perjury charges should be dropped. And the law, we would add, should be rewritten.

The problem with the law is that it says you are automatically guilty of perjury if you give two contradictory statements, even if the second statement is the truthful one and the first is beyond the normal three-year statute of limitations on perjury. That makes doing the right thing a crime. We are reminded of the way government whistleblowers used to be treated, when they could be punished for coming forward even if they were telling the truth.

We’ve seen a parade of exonerations over the years, across the state, in which innocent people were freed from prison — even death row — and a big piece of those exonerations often has rested on admissions from witnesses that they’d lied at the original trials. Often, the witnesses had been persuaded to lie in the first place as a kind of public service — they would be putting a bad guy behind bars.

Our criminal justice system depends on witnesses taking their oaths seriously, and there should be penalties when they do not. It is also true that prosecutors cannot and should not reopen a case every time a witnesses changes a story. As in the Gary Dotson case, where new DNA evidence emerged, something more than a recantation typically is required.

But to discourage recantations that might be true by pressing perjury charges too aggressively — that turns the truth-finding mission of the courts upside down.

Sally Daly, a spokeswoman for Alvarez, said her office uses perjury prosecutions only in rare instances.

“We don’t believe it has a chilling effect, we really don’t,” she said.

We’re not so sure future would-be recanters, finally looking to tell the truth, will see it that way.