The Elephant is Still in the Room

The Elephant is Still in the Room

August 11, 2014

Complicity has enlarged herself in the 10th Circuit Court of Appeals to include judicial cronies named Harris L. Hartz, Bobby R. Baldock and Jerome A. Holmes. These cronies finally issued an opinion in the IRP6 case, but as expected they still ignored the elephant in the room, the missing portion of the transcript, as if this issue of manifest injustice will somehow magically disappear. The opinion is replete with quackery and vain crony babbling, but they still couldn’t deny that their corrupt bedfellow, the dishonorable judge Christine M. Arguello violated the IRP6’s 5th Amendment right by coercing them to testify at the infamous October 11, 2011 sidebar in their criminal trial.

A quack is a dishonest practitioner who makes vain or false presentations of what is deceptive or hypocritical. This deception is predicated on half-baked thinking and is carried out by showing what is unreal and concealing that which is real. We previously have witnessed quackery with Judge Arguello and now with Baldock, Hartz and Holmes. A judge’s most important responsibilities are fairness and justice. The crony judicial practitioners in the 10th Circuit have failed miserably in those responsibilities for the IRP6. Am I surprised? Not hardly, it was expected. Nepotism and cronyism are the foundation of judicial operations in the 10th Circuit and these crony judges, colluding with the Colorado U.S. Attorney’s Office have brought disrepute on the entire U.S. justice system. The American public needs to be made aware of the routine despotic abuse by corrupt factions in our justice system, which includes the 10th Circuit Court of Appeals.

First, I would like to prepare the table of your mind by putting you in the courtroom the day Judge Arguello, flanked by Assistant United States Attorney’s (AUSA) Matthew T. Kirsch and Suneeta Hazra, abused the IRP6 by coercing them to testify in their criminal proceeding in violation of their 5th Amendment right against self-incrimination. This is so you can have an appreciation and understanding of what the IRP6 were feeling. Second, I will walk you through the appellate panel’s opinion and their crony analysis and reasoning, comparing it and drawing distinction to the sound reasoning of The Supreme Court of The United States (SCOTUS). Finally, I will conduct a mock cross-examination with this crony appellate panel, questioning them about the elephant in the room, that being the missing transcript related to Arguello’s coercion and their failure to adhere to their own precedent to reverse the conviction because of the missing portion of the transcript. Let’s get started.

Imagine you are sitting in the gallery and observing a federal criminal trial where six pro se defendants are working together to defend themselves at trial. The defendants tell the judge that there witness, a criminal investigator for the Colorado Bureau of Investigation failed to comply with his subpoena and appear to testify. You witness the judge tell the defendants: “I told you to have your witnesses here. If you don’t have another witness then one of you will have to testify or I will discontinue your case and put all of you in prison.” You think to yourself, she can’t do that and how is it their fault if a witness fails to comply with the subpoena! You watch the defendants huddle for a few minutes to discuss the threats and consider the dire consequences of not complying with the order of the judge. Believing that the judge would make good on her threats, the defendants exit their conference and a defendant ultimately takes the stand in front of the jury. His co-defendants, not happy that he is on the stand, proceeds with their direct examination, and ask their questions. The prosecutor, during cross-examination, asks the defendant a specific question and before the defendant can answer, one of the co-defendants, realizing that the judge making threats and forcing them to testify was wrong, stands to object, pleads the Fifth Amendment on behalf of the co-defendant on the stand and tells the judge she should declare a mistrial for telling the group that one of them had to testify. You witness the judge forcefully deny that she threatened them or forced them to testify and refuses to declare a mistrial. You are shocked and disturbed that a federal judge would lie about what she said. You think to yourself, why isn’t the prosecutor saying anything? The defendant that took the stand tells the judge he will continue but he will invoke his Fifth Amendment right to every question. The judge tells the defendant he cannot selectively invoke his Fifth Amendment on the government’s remaining questions and if he did the government could infer in front of the jury that his pleading the 5th could, in essence, be an indication of his guilt. The defendant continues to testify, invoking his Fifth Amendment on each of the government’s remaining questions. You see the defendants make a request to the judge for the court reporter to provide them with the unedited transcript so that they can prove what the judge said. The judge says she can see no valid reason that 200 pages of the unedited transcript should be turned over to the defendants and refuses to do so. Ultimately the defendants are convicted and sent to prison.

Would you think this was a fair trial? What do you think was in the minds of each juror when they saw the one of the co-defendants suddenly jump up and abruptly stop his defendant, who by the way was testifying about business activities they engaged in together, from completing an answer and plead the Fifth Amendment on his behalf? Our haughty appellate panel, the dishonorable Judge’s Bobby R. Baldock, Jerome A. Holmes and Harris L. Hartz implicitly intimated in their opinion that the trial was fair and actually stated that Judge Arguello did absolutely nothing wrong.                                                  

It is highly unlikely, as a human being with common sense, you would consider that the defendants received a fair trial given the actions of the judge forcing them to testify and you would definitely not feel you were capable of figuring out what the jurors were thinking as you observed these events. Our appellate panel are obviously a more intelligent life-form with amazing telepathic abilities as they are capable of reading a transcript to determine what IRP6 jurors were thinking two years ago. The panel’s ability to read two-year old imprints of juror’s thoughts and determine that not one of them were negatively influenced by the events that took place when the IRP6 were forced to testify is God-like. I hate to question their omnipotence, but a juror who spoke with justice advocacy organization, A Just Cause, stated that he was shocked upon his return to see one of the IRP6 defendants take the stand as he expected them not to testify based on their opening statements. I wonder how shocked he was when Walker stopped Barnes’ testimony and accused the judge of coercion. But I digress. Black’s law dictionary defines a fair trial as “A trial by an impartial and disinterested tribunal in accordance with regular procedures; especially, a criminal trial in which the defendant’s CONSTITUTIONAL and legal RIGHTS are RESPECTED.  The Supreme Court of the United States (SCOTUS) in the case of Moran v. Burbine, 475 U.S. 412 (1986) stated:

 

“The inquiry whether a waiver [of a right] is coerced has two dimensions…First the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.”

A seminal question in the panel’s analysis is whether the IRP6 defendants voluntarily waived their right against self-incrimination. All of the IRP6 defendants, in independent affidavits stated they heard Judge Arguello tell them that if they didn’t have a witness ready to testify then one of them would have to take the stand or she would discontinue their defense. That is clear coercion.  The portion of the transcript that would prove Judge Arguello’s coercion has mysteriously disappeared so the appellate court can’t make a determination if the coercive statements were made. The panel is aware that SCOTUS has held that a “knowing and voluntary waiver” cannot be inferred from a silent record. See Boykin V. Alabama, 395 U.S. 238 (1969). So their first insidious objective is to overcome the silent record and silent government because the transcript to prove allegations of coercion has disappeared. Federal appellate judge, The Honorable H. Lee Sarokin (Retired, 3rd Circuit Court of Appeals), a Huffington Post contributor, found that the U.S. Attorney’s Office’s omission to file an affidavit on what they heard at the sidebar “speaks volumes”. On page 40, the panel cites from the transcript, the exchange captured between and Walker and Judge Arguello — stating that Walker asked to check and see if defense witness Collin Reese was in the witness room and then returned to the court and immediately stated: “the defense calls Ken Barnes.” That is not accurate in the edited transcript. Actually, there was another exchange between Walker and Judge Arguello prior to calling Barnes to the stand, which underscores our continued need for the unedited transcript and shorthand notes that is being concealed by the district court.

At the beginning of page 49, the panel states “[for the sake of argument, we assume that the defendant’s assertions that Judge Arguello stated that if they didn’t have a witness, then one of you will have to testify as valid]…However in doing so, we join the district court in concluding ‘that defendant Barnes was still not compelled to the take the stand.’ Accordingly, Mr. Barnes was not compelled to violate his Fifth Amendment rights.” How can this panel conclude Barnes was not compelled when that portion of the transcript is missing? Answer: Cronyism. The panel continues, arguing that “Defendants have forfeited any purported Fifth Amendment objection to Mr. Barnes’ decision to testify and to his testimony during direct examination. Neither Mr. Barnes nor any of the other Defendants raised any objections regarding these matters; in particular, none of them even intimated that Mr. Barnes was being compelled to testify by the district court. To be sure, when cross-examination commenced they raise their compulsion-related objection.” The implication by the court here is that the defendants didn’t interpose an immediate objection to Barnes testifying before he took the stand, therefore the right was waived. Under the circumstances of this case that simply does not apply. I would like to start with discussing a carjacking to lay the foundation for my analysis.

If someone was to climb into the back of your car, put a gun to your head and demand that you to drive, you are going to start driving. You are under duress. Do you want to comply or do you think the carjacker’s actions are legal? No, but a gun to your head is quite persuasive and the consequences of not complying could cost you your life. So you start driving AGAINST YOUR WILL. Now put yourself in the place of pro se IRP6 defendants, who are facing a powerful judge in a trial where they are defending their innocence and fighting for their freedom. They are trying to put on the best defense they know how. The presentation of their case was the only tool they had to defend their innocence. Judge Arguello had already compromised IRP6’s witness scheduling when she denied two witnesses, Andrew Albarelle and Kelli Baucom, who were on the witness list we provided to the Government two weeks before trial. Albarelle and Baucom were slated to provide a minimum of four hours or more of testimony. Then, Arguello tells us we better have witnesses available, many of which were law enforcement professionals that lived in the northeast. Judge Arguello provided no assistance to us in enforcing subpoenas and allowed FBI Agent Robert Moen to avoid testifying and being subpoenaed. Federal prosecutors and Judge Arguello spoke with some of our law enforcement witnesses prior to them testifying and Judge Arguello stood in open court and questioned us about what witnesses we had left and had us provide some details of their testimony while the prosecutors were present. If that wasn’t enough, Judge Arguello angrily tells the IRP6 during a sidebar to take the stand and testify or she will cancel their defense and that just happens to be the only portion of the transcript missing from a 17-day trial. Feeling under duress, they believe the judge has the power to carry out her threat and without being able to present their defense, they feel their innocence and freedom is in jeopardy. So they comply AGAINST THEIR WILL. During cross-examination they become so distraught of what they’ve been forced to do, they stand and say we don’t care what it costs us, this is just plain wrong. The only reason they agreed to testify in the first place was predicated on threats and intimidation from the powerful judge. The IRP6 was case-jacked by Judge Arguello.

SCOTUS requires that the courts frame their thinking with a presumption that a defendant would not waive his constitutional rights. In Johnson v. Zerbst 304 U.S. 458 (1938), SCOTUS “pointed out that ‘courts indulge every reasonable presumption against waiver’ of fundamental constitutional rights and we ‘do not presume acquiescence in the loss of fundamental rights.” The choice of whether to testify in one’s own defense…is an exercise of the constitutional privilege. Malloy v. Hogan 378 U.S. 1 (1964)”, because our panel views the IRP6 case through crony glasses, they failed to adhere to that standard of presumption.

To presume that the IRP6 defendants did not acquiesce to surrender their Fifth Amendment rights, the courts would first have to review the allegations set forth in their independent affidavits submitted as part of Federal Rules of Appellate Procedure 10(c), where each IRP6 defendant tells the same story — that Judge Arguello told them if they did not have another witness to immediately take the stand then one of them would have to testify. The panel instead chooses to justify their position by focusing on the timing of the defendant’s objection, which occurred during cross-examination vice prior to Barnes beginning his direct testimony. The panel tosses up a Machiavellian argument in an effort to hold serve on SCOTUS precedent in Mitchell v. United States, 526 U.S. 314, 321 (1999). Mitchell is not only inapposite, it extinguishes the panel’s entire argument.

The Mitchell case is about whether a voluntary guilty plea waives the self-incrimination privilege at sentencing. The panel in citing Mitchell, states: “that a witness …may not testify VOLUNTARILY about a subject and then invoke the privilege against self-incrimination when questioned about the details.” There was no dispute of whether Mitchell voluntarily pleaded as in the IRP6 case where the defendants assert they were compelled. The panel in the IRP6 case puts the cart before the horse by making a misguided and feeble attempt to discuss what happened after Barnes took the stand instead of addressing the coercion that sent him there. Mitchell also states that “[t]he normal rule in a criminal case is that no negative inference from the defendant’s failure to testify is permitted”, which obliterates the panel’s finding that “the Government [was] within its rights to comment on [Barnes’] refusal to answer questions that are within the scope of the questions voluntarily given on direct examination.” Prejudice attached when Barnes repeatedly invoked the 5th in front of the jury without voluntarily taking the stand. In a conspiracy case the very appearance of two co-conspirators intentionally looking like their trying to avoid answering questions is incriminating for the entire conspiracy. To add one of those defendant’s taking the 5th multiple times thereafter is overwhelmingly prejudicial. Supreme Court Justice Scalia, joined by Justice’s Thomas and O’Connor, in his dissent in the Mitchell case, discussed the predisposition and natural tendency of jurors to believe testimony that a defendant fails to contradict from not testifying or pleading the Fifth. “It is one of the natural (and not governmentally imposed) consequences of failing to testify-as is the factfinders increased readiness to believe the incriminating testimony that the defendant chooses not to contradict.” Imagine how prejudicial or incriminating a jury might find events surrounding Barnes’ testimony and Walker’s dramatic objection and complaint against Judge Argurello about the IRP6 being forced to testify.” The late Maya Angelou said “People will forget what you said, people will forget what you did, but people will never forget how you made them feel.” The panel has no clue about how these jurors felt and for them to intimate human beings could simply set aside those dramatic events is more than folly, it’s malfeasance. “It is difficult to imagine anything more prejudicial”, exclaimed Sarokin on the Huffington Post. The Mitchell court went on to discuss the importance of a defendant not suffering a negative inference from pleading the Fifth in criminal cases, recognizing the “stakes are higher in criminal cases, where liberty or even life is at stake and where the government’s sole interest is to convict.” AUSA Kirsch was not questioning Barnes about his favorite food or hobbies. Kirsch’s goal was to drill, grill and pressure him into looking guilty in front of the jury.” This panel fully understands the dangers of defendants taking the stand against their will, especially when he and his pro se co-defendants, who would be questioning him, were unprepared to do so.  The Mitchell court explained that the rule prohibiting an inference of guilt from a defendant’s rightful silence constrains the prosecutor to carry his burden to prove allegations without unfairly benefitting from a negative inference while respecting the defendant’s individual rights. As mentioned above, a fair trial is one where defendant’s constitutional and legal rights are respected. What occurred on cross-examination is moot because direct examination shouldn’t have happened after Judge Arguello compelled the IRP6 to testify. The panel incorrectly applies the law therefore their conclusions are wholly without merit.

Before moving on, I would like to tell you that the Mitchell court held that a defendant does not waive their self-incrimination privilege as a result of a voluntary plea.

It is the law of the 10th Circuit that reversible error occurs “when the unavailability of the transcript makes it impossible for the appellate court to determine whether or not prejudicial error was committed with regard the challenged action.” See United States v. Haber, 251 F.3d, 889 (10th Cir. 2001). It is unfathomable that the panel, in their opinion, concluded that not only did Judge Arguello not commit prejudicial error, but no error at all. This is the type of half-baked thinking I discussed above that defines a quack. Quackery is the touchstone of cronyism and is the reason this panel failed to observe their own legal precedent. Judge Sarokin’s characterization of the IRP6 case as “strange” is an understatement. I pondered how these crony judges would answer some basic questions if they were actually subjected to some general cross-examination so I put together a mock cross-examination to cut through their dazzling display of procedural analytics and complete lack of constitutional deference found in their opinion. I will conclude my commentary on the other side.

1)  Did Judge Arguello make coercive statements at the October 11, 2011 sidebar, forcing the IRP6 to take the stand against their will?

PANEL: “We don’t know”

2) Did you check the transcript of the sidebar to see if Judge Arguello made any coercive statements?

PANEL: There was no transcript of the sidebar for us to review?

3) So how can you say they were not coerced?

PANEL: We can’t say, but there was no immediate objection so we assumed or imagined they wanted to take the stand or they wouldn’t have taken it.

4) Weren’t there numerous objections by the IRP6 that they felt compelled by the judge to take the stand because they were told by her that if they didn’t have another witness immediately available one of them would have to testify?

PANEL: Yes

5) What about their objections, do they not count for anything?

PANEL: Not in our eyes, we are obligated to protect Judge Arguello, not their rights. She is one of us.

6) But what about their constitutional rights?

PANEL: What about them?

7) Did the IRP6 defendant’s also provide you with independent affidavits of what they heard at the sidebar as part of Federal Rule of Appellate Procedure 10(c)?

Answer: Yes

8) Did all of the IRP6’s recollections in their affidavits show a consistent account of what each of them heard?

PANEL: Yes

9) How can you just discount their version of events based on their independent recollections without something to disprove their veracity?

ANSWER: We really don’t have an answer for that.

10) Did the IRP6 challenge Judge Arguello’s prejudicial error of coercing them to testify at trial?

PANEL: Yes they did

11) Were you able to determine whether or not prejudicial error occurred?

PANEL: No we were not because the transcript was unavailable to us, therefore we could not verify exactly what happened.

12) Doesn’t Tenth Circuit precedent in the case of Haber v. United States, state that if the appellate court cannot make a determination on whether prejudicial error occurred due to a missing transcript, the case must be reversed?

PANEL: Yes it does

13) Did you not on page 43 of your opinion you state that you assume arguendo that the IRP6’s recollection of the district court’s sidebar is correct?

PANEL: Yes we did

14) In other words, as stated in their affidavits, when the IRP6 stated that Judge Arguello coerced them to testify under the threat of resting their case, you take that to be the truth of what happened, correct?

PANEL: Yes

15) So you think it is acceptable for a federal judge to force defendants to testify against their will?

PANEL: No

16) If their 5th Amendment right was violated at that point in trial, shouldn’t a mistrial been declared by Judge Arguello and doesn’t that make the rest of issues surrounding Mr. Barnes testimony, including Mr. Walker’s objection in front of the jury, curative instructions, etc. moot?

PANEL: We plead the 5th

17) Isn’t it true that on page 43 of your opinion you use Judge Jackson’s order in the lawsuit against Darlene Martinez to support your assertion that there is no missing transcript?

PANEL: Yes

18) Are you also aware that Judge Jackson stated: It is undisputed that Judge Arguello said something [to the IRP6] that does not appear in the transcript — either the unedited or edited version?

PANEL: Yes

19) Do you dispute Judge Jackson’s findings that Judge Arguello’s statements are not a part of the record?

PANEL: No, we accept his findings

20) So you don’t know if Judge Arguello coerced the IRP6’s testimony in the portion that is missing, do you?

PANEL: NO!! We cannot make any determination on what was said because neither Judge Arguello’s recollections nor the IRP6’s recollection are part of the transcript.

21) On page 46 of your opinion, you provide a quote from Judge Arguello stating: “All the Court directed was that the defendants should call their next witness, at which time the defendants call Mr. Barnes, and Mr. Barnes voluntarily took the stand.” Is that correct?

PANEL: Yes

22) Also on page 46, you quote Mr. Barnes stating: “I was compelled to take the stand from our discussion up at the bench, as we approached the bench.” Is that correct?

PANEL: Yes

23) On page 49 of your opinion you stated “we join [Judge Arguello] in concluding that ‘Defendant Barnes was still not compelled to testify” even though you accept the IRP6’s versions of events of what occurred at the sidebar as true.

PANEL: Yes

24) Also on page 49, you creatively imagine what the jurors thought about Barnes testimony by stating “that there was nothing incriminating in [Barnes] testimony?

PANEL: Yes, that is what we believe

25) Are you mind readers?

PANEL No, we can’t read minds

26) The fact is, you have no idea what the jurors thought about Barnes’ testimony or Walker’s objection, or whether any of it was prejudicial in the minds of the jury, do you?

PANEL: “No we don’t”

27) On page 48, you underscored “that only Mr. Barnes Fifth Amendment rights [were] at issue”, correct?

PANEL: Yes

28) But you accepted the fact that Judge Arguello told the all of the defendant’s at the sidebar that one of them would have to testify, correct?

PANEL: Yes, as we mentioned in our opinion we made our decision assuming we accepted the defendants, all defendants were told by Judge Arguello at the sidebar that one of them would have to testify.

29) On page 54 you stated that “the district court properly observed, by voluntarily testifying on direct examination, he forfeited his right to invoke his Fifth Amendment on cross-examination, correct?

PANEL: Yes

30) How can you say the district court properly observed that Barnes voluntarily testified on direct examination when you proceeded on the assumption that he was forced to testify by Arguello at the sidebar?

PANEL: We can’t answer that question

As you can see, these judges see everything through crony glasses, talking out of both sides of their mouth. They never once mentioned that each of the IRP6 filed affidavits as part of the appeal based on their independent recollections of what the heard at the sidebar. Every one of us provided a consistent story on what we heard, but that was not important to crony judges who look to protect their own. They paid lip service claiming to accept the IRP6’s version of events as true.

There is widespread thinking and acceptance in the United States that when an appellate court speaks in an opinion that any criticism are off limits. We can criticize the President, Congress, but the judiciary are above public scrutiny because the law is too complex for us little people to understand. Many jurists carry an heir of superiority to the average citizen and think they are too dumb to understand the profound wisdom of our judicial elect. These judges in the IRP6 case have shown from their actions that they think they are omnipotent and can arbitrarily spit on a citizen’s rights. They’re able to read jurors’ minds to determine what they thought and how they felt about events that took place at trial. Judges are never questioned, except by others in their fraternity about their actions, many of which are cronies. Organizations who police themselves are in most cases incapable of objectivity and fairness as shown by Baldock, Hartz and Holmes.

 

These crony judges sent a sick message of despotic judicial abuse and reinforced a dangerous precedent that it is acceptable for a federal judge to violate a defendant’s constitutional rights during a secret sidebar at trial and then conspire with the court reporter to conceal and deny access from the defendants and the public. All the facts, circumstances and evidence in the IRP6 case overwhelmingly support this conclusion. Our appellate panel proved that cronyism and nepotism abounds in the 10th Circuit and that law enforcement, prosecutors and the judiciary collude together toward winning convictions at any cost even at the deprivation of the constitutional rights of citizens. Unfortunately, most defense attorneys are part of the fraternity as well and are squeamish about mounting aggressive defenses against their more powerful colleagues for fear of reprisal and being ostracized. The American public cannot give judges and prosecutors their full faith and trust. We don’t do it for members of Congress or the President who we learn something about during the election process. Just because they have honorable in front of their name and wear a black robe doesn’t mean they have integrity or will be fair and carry out justice.

You can plainly see what has occurred in the IRP6 case from this and my other blog posts and from Judge Sarokin’s commentary on the Huffington post. Baldock, Hartz and Holmes engaged in crony justice and we the public need to hold them accountable for their actions. In Judge Sarokin’s last commentary, The Case of the Missing Transcript Faces Another Defeat (Part V), I have to respectfully disagree that these crony judges were persuasive in their arguments. I encourage all Americans to read Sarokin’s postings about the missing transcript and compare it to the opinion written by Hartz, Holmes, and Baldock. You will see how Sarokin provides independent, honest and common sense analysis that is without bias based on the truth, which is a stark contrast to the dishonest, deceptive and hypocritical analysis by Judge Holmes based on concealing the truth to protect Judge Arguello. Judge Holmes’ opinion was illegitimate.

There could be no legitimate argument in a case where three judges accept the fact that Judge Arguello violated the IRP6’s 5th Amendment right by forcing them to testify and failed to declare a mistrial. Judge Holmes spends numerous pages discussing illegitimate arguments about curative instructions, Gary Walker’s objection to being compelled to testify and taking the Fifth Amendment for Ken Barnes, and judges forcefully asserting that they knew what was in the minds of jurors and concluding that those jurors did not find statements by Barnes or the objection by Gary Walker incriminating. It’s interesting how these judges can so easily ignore the IRP6’s affidavits while claiming they accept them as true. It is amazing how easily they could draw conclusions about how the IRP6 voluntarily chose to testify; but could not see the implausible coincidence of a court reporter transcribing everything at trial except for damaging statements made by Arguello to violate the IRP6’s constitutional rights.  It is a well-known holding by SCOTUS that justice must satisfy the appearance of justice. The IRP6 appellate opinion only satisfies the appearance of a crony hack job by Baldock, Hartz and Holmes.

The government and the court may think this opinion by this crony panel closes this matter on the IRP6 and their freedom. That would be a mistake of epic proportions. They are unaware of the impending expose’ that will enlighten the world to their secrets, conspiracy, and corruption. This paper rouse changes absolutely nothing. The bull elephant is still in the room and it is going to stomp the proverbial life out of these crony judges, the U.S. Attorney’s Office in Colorado and other 10th Circuit officials involved in this cover-up.

—–A note from Sophie—-
This was sent in by David Banks. The organization “A Just Cause” is helping David and his friends. You can read more about them

Solidarity in Struggle,

Sophie

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Freezing Inmates, Squandered Funds, and Lack of Education Still Issues at Maine State Prison

December 14, 2011

[name omitted]
807 Cushing Road
Warren ME 04864

Sophie Inchains
P.O. Box 2900
S. Portland ME 04106

Dear Sophie,

I haven’t written you in awhile but I hope you are still not being harassed and intimidated by the Department of Corrections administration concerning the expression of our 1st amendment rights. Now you know first hand the power they think they have when prisoners and others such as Stan Moody expose the truth about corruption and other things that go on here. It is also sad that our attorney general and politicians help cover up things and protect the administration or else there would be laws in effect for more transparency and an oversight committee that would help protect staff but you can see our legislature isn’t interested in that.

Remember, 99% or more of person incarcerated are poor and don’t have the resources to fight the sate who have endless taxpayer money to fight court battles. How intimidated did you feel when you were harassed by the warden here about posting prisoner correspondence?

I would like to discuss a few issues that need changing and investigating by the appropriate agencies so if you could fax this letter to people that may be able to help I would appreciate that. Please don’t worry about ay retaliation against me as I will hold my own so you can post this.

First of all, I’d like to say that I have been incarcerated for over 13 year and it is my feeling as well as others that this administration is intentionally creating uneccessay [sic] chaos on a daily basis in order to get prisoners to riot. They would then be able to ask for more finances instead of them being taken away. If you have access to other prisoners and staff I’m sure this could be easily verified.

Every day there are new policies and procedure for everything. What intensifies the chaos and confusion is that there are 2 12 hour shifts, Sunday through Tuesday and Thursday through Saturday and a rotation on Wednesdays. These shifts are not properly notified of the changes that take place on their days off. There are prisoners explaining policy to staff. Day to day, prisoners, guards, and sergeants alike do not know the policies for the day. This is creating severe tensions among staff and prisoners and between staff and prisoners.

When a prisoner tells the sergeant a policy and the sergeant has to call his superior to verify it that is a sad state of affairs at MSP but that is the truth. This all creates uneccessary [sic] tensions among everyone except for administrators hiding in their offices.

One day or one hour you will be getting patted down, the next you don’t. The next thing you know is that a guard or sergeant is trying to belittle you for walking past them and not getting patted down. One day or one shift you have to line up on this side of the hall for canteen, the other shift you have to line up on the other side. Each shift makes up their own rules, policies and procedures. It is so insane and tempers are rising among staff and prisoners.

Currently we have 4 dining halls yet they want to crowd everyone into 3 dining halls creating a lot of problems and chaos. It is becoming a safety and security issue but they don’t care. Also during the coldest days guards, sergeants, and captains stand outside the dining halls in coats, hats, and gloves and hold the doors wide open so the cold air blows right through freezing everyone especially those right by the door. When you approach them about closing the door you are threatened or yelled at. I have written the warden on this issue but she has ignored it.

Recently kitchen staff have been playing with our food and not enforcing established health code sanitation and hygiene issues. Each week a menu is put up with the meals and portion sizes and the menu looks good on paper but in reality kitchen supervisors have switched over to serving sauce and gravy type meals so they can cut the serving portions down and use less then is posted on the written menu. It’s like a bait and switch which is illegal. Many prisoners are not getting plain gravy over potatoes or gravy with big chunks of uncooked flour because staff that cook our meals do not have to be responsible for any type of quality control. It is hard for the supervisor to supervise sitting in an office. Recently when the supervising sergeant was notified of the gravy issue he laughed about it and a near riot broke out in C-pod section of the close unit. This is the mentality of administration. The pod was then locked down for several weeks. We have very little here and look forward at least to a well prepared meal.

Even though kitchen supervisors know weeks in advance the meals that are to be prepare they don’t have anyone with the ability to order the proper foods and the menu is always changing due to someone not ordering properly. I find it sad that the state can pay the guys a large salary and retirement and they don’t even have to do their jobs. Food is cooked off at noon and put in warmers for a 4-5:30 serving. They could never get away with this in a private sector job but I’m sure that is why 3 of the kitchen staff retired then came back to work in the prison and did not go into the private sector. They’d be fired in a heartbeat because they’d have to be accountable to someone. Here they don’t. I have been in the food business all my life including owning my own deli so I do know what I am talking about. There is also a consensus in the prison among staff and prisoner that Kitchen Cook Woodman be drug and alcohol tested as on his best day it is hard for him to put toast and cereal on a tray.

Prisoners are forced to wear beard restraints under threat of being fired when working around the serving line or cooking yet kitchen staff have no policy for covering their beards going completely against Maine Health cod. The administration has taken to turning the heat way down in the prison pods but keep it full blast in the hallways and supervisor and administrators offices. Is our heat more expensive? IN the pods guards are forced to wear coats and even hats because it is so cold. How can officers do their jobs correctly when they have to worry about staying warm.

Why aren’t our legislators and prisoner advocates allowed to come to the prison and speak with staff and prisoners alike to really find out what is going on here? Is everyone waiting for a riot or another murder? How many does it take for politicians to wake up?

Many years ago the state instituted the Inmate Benefit Fund (IBF). This fund was suppose to be for the benefit of prisoners and its completely financed by prisoners and their families form the profits from the canteen and the phone calls at 30 cents per minute. This fund pays for college courses, gate money, 2 free letters per week for prisoners, supplies, and equipment for recreation and other things.

Recently after receiving a copy of the 2009 IBF expenses report which is available to anyone including our representatives, I found that the Department of Corrections ahs been using money out of the fund to pay for building maintenance and other state mandated items.

DOC policy states that prisoners can be paid for their jobs out of the fund only if their job directly benefits other prisoners. Currently administrators pay out about 70,000.00 to favored individuals and a large portion of that is paid for maintenance costs which is illegal. I am asking for a complete investigation into the illegal use of funds from the IBF by our legislators and/or the Office of Program Evaluation and Government Accountability because prisoner are still voters and have a say about their own money. I would like this investigation to go back at least 10 years to establish a pattern of abuse. The fund should then be reimbursed with interest.

First of all, the state is required by law to provide food, shelter, clean clothing, and medical care at their expense and possibly education under no child left behind.

At MSP the state pays some kitchen workers up to a maximum of $50.00 per month which could take a year or more to work into, to work 6-7 hours per day, 5 days a week.

However, according to DOC policy, prisoners can be paid out of the IBF if their job directly benefits other prisoners. Currently, the funds, which are quite substantial, are being terribly misused for the benefit of the state to defer mandated and maintenance costs.

In the 2009 IBF expense report, the last one I received, which is available to all legislators and the Office of Evaluation and Government Accountability, the fund paid out $4100 to barbers, $1200 to wheelchair pushers, $5100 to recreation workers, and $750 to the visiting room family photographer. Although these sums are quite high compared to the state paid kitchen workers, these jobs directly benefit prisoners.

On the other hand the administration has been paying out outrageous sums of money to favored prisoners to offset maintenance costs and other mandated expenses. These jobs in no way directly benefit other prisoners but directly benefit the state. I will explain.

From the expense report it was noted that $13, 200. In IBF funds were used to pay painters, plumbers, and handyman prisoners while paying state employees hired for maintenance to watch them work maintaining the facility. Certain Housing Unit cleaners were paid (bribed) $4100 to buff floors and clean administrative offices while other doing the same job receive nothing. Certain prisoners were paid $7100 to wash our clothes and hand them out and print shop workers were paid $1100 to print state materials even though MSP does not have a print shop. These are all state mandated expense that are the responsibility of the state to pay and not prisoners out of their fund. This is totally insane!

All workers paid from the IBF earn 50%-600% more than the state paid kitchen workers. Why? How is that possible for working less hours?

In the education department they highly pay a fulltime teacher and used to be 2 fulltime teachers and a principal not to teach but then spend over $10, 700 a year to pay prisoners to teach classes while the teacher sits and drinks coffee. IF you are a prisoner making 600% more than other prisoners would you say anything about state paid teachers just sitting around? No! They highly pay a drug abuse counselor and a state contracted drug counselor and then pay 2 prisoners $5100 per year to do their jobs. A librarian is paid a huge sum of money but they pay a prisoner $3900 per year to hand out court documents and go to recreation and other prisoners $2300 to clean the library. The librarian has plenty of time to hand out court documents as the state has taken away our Prisoner Advocate and tried to replace her with a prisoner for much less money.

All these jobs directly benefit the state and state workers and were never meant to benefit prisoners but to offset state costs. Why is there such a differencial [sic] in what the state pays a worker and what administrators illegally take from the IBF to pay favorites? If you were being bribed $2000 to $4000 per year would you speak up about corruption or abuse? I think not but would turn the other way.

The abuse of the money from this fund needs careful investigation and this doesn’t even take into consideration other questionable expenses other than prisoner pay.

Please help us Governor LePage and legislators!

As a 56 year old veteran I am computer illiterate and have been on a waiting list for over 4 years to learn computers. The education department has 2 full rooms full of new computer sand Rosetta Stone language software but we cannot use them, except for a few favorites. The excuse, they don’t have money to pay for a teacher. The solution! Stop paying illegal payments out of the IBF and hire a computer teacher! Just cutting out the illegal payments for maintenance could pay for a teacher.

After some careful research I recently submitted to Commissioner Ponte who passed it on to Warden Barnhart how the $500,000 IBF, if properly invested and legal and illegal expenses cut along with the proper operation of the prison canteen and phone system could finance a prisoner re-entry and training facility at no cost to taxpayers but financed solely by prisoners and their families. This could support fact based programs.

When there is no transparency, oversight, or accountability in a state agency such as the Maine Turnpike Authority and the Department of correction and politicians help cover things up, anything can and will happen. IN this instance corrections administration should not only be accountable for the mismanaged funds but for the lives and well being of prisoners and staff alike.

Sophie, please fax this to prisoner advocacy groups, the Office of Program Evaluation and Government Accountability, Stan Moody, and any state legislators that may be against corruption or abuse in state agencies. There may not be many.

In closing, when Paul LePage and Commissioner Ponte came into office I also proposed a recycling program for state agencies as just in corrections there is so much waste and plenty of paper and plastic to be recycled at no cost but they continue to pay for uneccessary [sic] garbage disposal. My plan would have immediately cut down on tipping fees charged the state, reduction of tens of thousands of plastic bags in landfills and the cost of those bags by the state. No one seems to care.

Take care and let me know who you have contacted with this letter.

Sincerely,
[name omitted]

***A note from Sophie***
This letter was sent in to the blog almost a year ago, and although the inmate did not fear retaliation, I felt that withholding the letter would be safer for him as inmates who were writing into Voices had been targets. In addition, due to certain scary incidents in my personal life–I believe directly related to MSP and the blog–I was publishing very little.

So here we are almost one year later and very little of what is written in the above letter has changed. Commissioner Ponte has allowed advocate groups into the prison (thank you Commissioner), and changes in staff have show improvements in respects to the flow of information (sometimes)between shifts;however, the rest of what the inmate discusses still holds true and with the cold of winter approaching it is worth noting, no inmate deserves to freeze.

Solidarity Always, Sophie Inchains

3-Day Lockdown, Sexual Harassment, and Excessive Force at Maine Correctional Center

On September 19th I locked my cell door at [time omitted] expecting it to be unlocked again the following morning as usual at 5:30 a.m.  I wasn’t released until 11 p.m. on the 22nd.  They locked us down and did a complete shakedown of the facility.  At around 9 a.m. on the 20th, the cert-team from M.S.P. came into our 40-man block.  When they marched out and across the road in riot gear later on I counted 34-of them.  When I was unlocked, I, as all of us, were subjected to total strip searches in our open doorways in front of some woman who appeared there for no more reason than to check out and compare male body parts.  They did nothing but gawk at everyone.  We were allowed to put on boxers, tee-shirts, and shower shoes, then had to keep our hands behind our backs as we were marched out into the stairwell and up to the third floor.  We were sat in plastic chairs with our hands behind us, and facing each other in a big circle, for an hour and twenty minutes.  Then we were marched downstairs so the woman could get one more look at the fine specimens that we were.  The majority of us Irish.  Only one Frenchman in the lot.  She had a good day.

The devastation to our cells was complete.  I had a $16 flex light for reading.  they took the flexible shaft and clip saying my name was not on them.  The storeroom only puts it on the light itself they don’t usually separate the light from its clip.  Now the next search they’ll take the light saying it’s contraband without the clip.  Welcome to Ponte’s Playland…

They have us completely stripping and waxing every floor, even cells, and all of the cells are being painted.  Even the brass door handles are begin polished they fixed our shower curtain and cleaning-sink faucet, the faucet didn’t work at all and the shower is a sadistic nightmare to begin with.  All of this because of some inspection on Tuesday, the 4th [of October], something to do with a lawsuit.  I wish to hell it were mine!!

 

Letter from Maine Correctional Center

Windham, Maine

[name omitted for safety of inmate]

A Note from CA Inmate: Facts about Three-Strike Law

Greeting Sophie                                                                      7/18/11

 

I am so happy to see that you provide a forum for contrivery [sic] regarding prison issues.  We have a poster on our wall telling us we may send you items which you will put into the social-network.

Here are some short talking points about our California Crime & Punishment circumstance.  I can provide a few areas of concern: 1 about our three strike law (since 1994); 2 the prison guards union; and 3 the Buracrats [sic] who let all this mess happen!

 

I hope it’s ok providing you with these untyped [sic].  In time, I canget you moer material properly typed.

 

  1. Did you know that CDC (r?) holds more than 43,500 inmates sentenced under the three strike law, representing 25% of its total population?  (CA. State Auditors Rpt. 2009-107.2 S.F. Chronicle) These are 2nd & 3rd strikes combined.
  2. Did you know that three strikes are put into a class of their own, which prevents them from earning “good time/work time” custody credits…AT ALL?  No matter how well a third striker programs, they must do every single day of their “25 years to life” term, before they are even allowed to go to the board asking to be paroled!  (and boards never give date’s on the first hearing.)
  3. Our CA. State Auditor has found that 23,099 strikers, (both 2nd &3rd) have current convictions which were never ment [sic] to be strikes!  She also finds that CDC (r?) now holds 4,054 people/inmates as third strike prisoners under the illussion [sic]…as if they are violent!
  4. Do you understand that “end-of-life” medical care costs for all non-violent third striker, (4,054 total in CA.) will amount to an un-calculable cost annually…unless voters step-up to amend this law imediately [sic]?
  5. Do you know that back at the inception of our three strike law in CA. (1994), deputy district attorney’s operated with impunity as they applied multiple strikes to a person on the same day, and frequently to a single event?  This tactic provides the illussion [sic] that the person charged was a repeat or multiple offender, when a person now doing “Life” can in fact be a “first term” prison?  (this also was a way for Line-prosecutors to rack-up “conviction final” rates)  All for their own Little Resumes!

 

I have a bunch more of these which I’ll send you soon.  We are trying to get an initiative on our CA. ballot next year.

Sincerely; Bruce S

Salinas Valley State Prison, CA.

PS:

I would love to hear from you re: how I can better provide you with these concepts.