THE BLOG
05/16/2014 01:29 pm ET | Updated Jul 16, 2014

The Missing Transcript Case Becomes More Curious -- Part II

In an earlier post involving the case of United States of America v. Banks et als., I reported the assertion of the 6 defendants that, in addition to their claims of innocence, they contend that their 5th Amendment right against self-incrimination was violated. They claim that the presiding judge instructed them that unless one of them took the stand, their defense would be closed and their case over. The presiding judge denies giving that ultimatum. The answer lies in the transcript, but there is no record of that exchange. In my earlier post I mentioned that a separate civil suit was instituted against the court reporter to turn over the transcript. That suit was dismissed on legal grounds, but now having read the court's opinion, its factual findings confirm without question the defendants' contention -- not about what was said, but rather that there is no record of what was said.

Judge R. Brooke Jackson, in an incredibly detailed opinion considering the miniscule nature of the claim, but obviously sensitive to the charges asserted, made detailed factual findings. His opinion should serve in lieu of a remand for a hearing on this sole issue. Very significant to me is that following this exchange between the defendants and the Court, Mr. Barnes, one of the defendants took the stand, and shortly thereafter it was government counsel that expressed concern. He "asked the court to make it clear on the record that all parties 'had every reason to believe that Mr. Barnes intended to testify no matter what happened in this case...regardless of the fact that the defense otherwise ran out of witnesses this morning." Why would he bring it up, unless he was concerned that something had transpired which made that clarification necessary?

And then the donnybrook followed. Sample statements from the defendants at the original trial:
"Actually, Your Honor, it was something we felt we had to do."
"And you also said if one of them (a witness) wasn't available, we had to put one of us on."
"When we approached the bench, your words to us were 'Put one of your witnesses on or one of the defendants will have to testify."

The Court denied making such statements. Then when the government starting cross-examining Mr. Barnes, Mr. Walker, another defendant asked "for a retrial based on our being forced to testify." So it is apparent that this was not some afterthought, some trial strategy, but rather a simultaneous assertion by the defendants immediately following the side-bar conference. I won't bother going through all of the recitations regarding the defendants' efforts to obtain the transcript, but rather focus on Judge Jackson's findings. He did not find any skullduggery by the court reporter. Rather he concluded:

"No statement like that which was recalled by the court or that which was recalled by the defendants appears in the transcript...There is no dispute that something was said that does not appear in the transcript." Judge Jackson quotes directly from the trial judge: "Unfortunately this portion of the sidebar was not transcribed by the reporter," and comments that "The judge offered no explanation at the time as to why one of her statements was not recorded." Later this explanation was tendered by her: "For whatever reason, whether the parties spoke too far from the microphones or the court reporter took off her headphones, the court reporter did not hear everything that was said at the sidebar..."

And finally the judge in the civil suit concludes: "It is undisputed that Judge Arguello said something that does not appear in the transcript -- either the unedited or the final version." So in all fairness, my use of the phrase "missing transcript" is not accurate. The transcript is neither missing, altered or destroyed, but rather the critical conversation apparently was not recorded and was never included in the transcript for reasons unknown. But having now resolved the factual issue so clearly by an independent court, one cannot help but wonder wherein lies the delay? If there is no way to determine whether or not the 5th Amendment rights of the defendants were violated, does the Court of Appeals have any other choice but to either reverse and remand for a new trial or dismiss? The defendants languish in prison still asserting their innocence. They deserve a prompt answer to a simple question. Can this issue be resolved without the transcript of what the court said to the defendants?