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?