In prior posts on this matter, I have assumed that absent a transcript of precisely what was allegedly said by the judge to lead these defendants to believe that they were compelled to testify, that no resolution could be made of that issue. However, after having read more of the record, the Court of Appeals has ample opportunity to accept the defendants' factual versions as true and be guided accordingly in its ruling. Here are the 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:
1. The judge was frustrated at the slow pace of witnesses and said "something" to the defendants about the future of the trial.
2. Immediately following the side-bar, the defendants caucused, and one of the defendants, Mr. Barnes, then took the stand.
3. No inquiry was made by the Court regarding defendant's waiver of his right not to testify.
4. Shortly into the testimony, the U.S. Attorney (not the defendants) wanted clarification that the defendants were going to testify in any event despite the problem producing witnesses. Clearly, he, too, was concerned about the Court's comments at the side bar and that they might have been misinterpreted as being coercive.
5. Once the issue was raised by the government, upon inquiry by the court to the defendants, they were unanimous in their impression of the judge's remarks--that the judge had made it clear to them that if they didn't have a witness, one of them would have to testify in order to keep their defense alive. Each contemporaneous statement on the record confirms this.
6. Although the court denied making such statements, she did not recall her exact language. "I don't know what my exact phrasing was."
7. The failure to have a record of that conversation must be laid at the feet of the court or the government. The absence of this critical conversation, the transcript of which was called for and ordered that very day certainly creates justifiable suspicions. Strangely, in the separate civil suit against the court reporter, the U.S. Attorney stepped in claiming the reporter was an employee of and on government business. But even accepting Judge Jackson's finding in the civil case of no skullduggery by the court reporter, the defendants have good reason to cry "foul."
8. Mr. Banks asked to see a copy of the transcript of the bench conference before proceeding further, and the court advised that "the transcript would be provided at the end of the day." The court reporter has never (to my knowledge) through affidavit or testimony explained the absence of this entry.
9. On cross-examination of Mr. Barnes by the government, Mr. Walker objected, pleaded the 5th Amendment based on "being forced to testify". When government cross-examination resumed, Mr. Barnes pled the 5th in response to every remaining question -- all in the presence of the jury. It is difficult to imagine anything more prejudicial.
10. Nor (to my knowledge) has the court reporter or the U.S. Attorney provided an affidavit or testimony of what they recall being said by the Court nor denying what the defendants claim was said by the court. This omission by the U.S. Attorney speaks volumes.
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.