Missing Transcript Case Gets More Strange: Part IV
The IRP6 defendants (this is the abbreviation of the case -- please see earlier instalments for background) renewed their application for bail pending appeal based upon findings in a related case that clearly supported their claim that their 5th Amendment rights had been violated.
Although their appeal has been pending for more than 14 months, their application was denied by return mail and signed only by the clerk of the court -- not by one of the judges on the panel.
Curious about the speed and the signature, a representative of the defendants telephoned the chambers of the three judges, reached two, and was informed that the judges had not received the motion, and thus had not ruled upon it. Counsel immediately wrote to each of the panel members seeking clarification. No response was ever received as of this writing.
As a retired U.S. Court of Appeals judge, I have been hesitant to comment upon a pending case. I recognize the pressures and the demands that frequently result in delay. I have been there. But each new revelation in this case has prompted me to speak out.
I have concluded that the defendants may well be innocent and that there is strong evidence that their constitutional rights were violated in any event -- innocent or not. They have been in prison for two years. They deserve a decision.
The government's theory was that the defendants' software program was a scam and that they hired staffing companies to provide programmers never intending to pay. Defendants have never denied owing the money and contended throughout that the business was legitimate and that they had every expectation of paying their debts.
Despite some unknown person or company's persistence in seeking to charge them criminally, the FBI refused to investigate stating that it was a civil, not a criminal, matter, and likewise a grand jury refused to indict -- presumably for the same reason. Everything seems to indicate that those initial reactions were correct and valid.
However, a grand jury eventually indicted, and the defendants were tried and convicted. My view regarding the possibility of their innocence is prompted by these unanswered questions.
If one were to create a scam software program, would one choose only law enforcement agencies as potential customers? The program was designed to coordinate and integrate information for law enforcement.
If it were a scam why would you give up your other employment and devote almost a decade to the project? Why would you personally guarantee payment to the staffing companies? Why would you go from one staffing company to another to have programmers work on the project if it were a scam?
The staffing companies paid the programmers -- the payments did not go to the defendants. The government claimed that as a result the defendants received "free labor", but for what? If the program was a phony, why spend all of this money to improve it and try to meet the needs of potential and interested customers?
Why would these men, respected members of their community and church, experienced in the computer world with impressive backgrounds, no criminal records, some of whom were veterans (one had a presidential appointment to the Air Force Academy), spend their own time and money and hire companiesto work on a program they had no intention of selling?
And then the case itself raises so many unanswered questions: Why wasn't the critical conversation regarding the Court's direction to the defendants upon which they base their constitutional violation recorded? Why did these defendants with no criminal records, no risk of flight, convicted of a non-violent crime receive such harsh sentences -- 7 to 11 years and repeatedly be denied bail pending appeal? Why has it taken this long to decide the appeal? The defendants were imprisoned in July 2012; the appeal was perfected in May, 2013. And why, most recently hasn't the court extended them the courtesy of responding to their inquiry regarding the latest bail application considering the information furnished to them by the judges' chambers -- that the motion was denied without their knowledge of its existence?
If ever the saying "Justice delayed is justice denied" has applicability, it is in this strange case. Defendants who may be innocent and whose constitutional rights were likely violated sit in prison; their families sit at home awaiting the court's judgment; an entire community sits and awaits their return. And Justice sits and awaits a ruling.
H. Lee Sarokin is a retired federal judge