The judge who freed famed boxer Rubin “Hurricane” Carter from prison after 19 years, saying his prosecution was based on “an appeal to racism rather than reason,” has taken on another long-shot case with racial overtones: the conviction of six Denver men, five of them black, who launched a software company to help federal, state and local law enforcement agencies communicate with each other after the failures preceding the Sept. 11, 2001, terrorist attacks.
H. Lee Sarokin is now retired from the federal bench and living in California, having gained renown not only for granting the federal appeal of Carter’s murder conviction but also for presiding over the first civil suit to find a tobacco company liable for a smoker’s death. Two years ago he was approached by a group advocating for the “IRP 6,” the six Denver men who were convicted in federal court in 2011 and received sentences of seven to 11 years in prison. Prosecutors argued that their software company, which built up $5 million in debt, was simply a scam. Their appeals are now exhausted, and their last remedy lies with a clemency petition pending before President Barack Obama.
Initially, Sarokin focused on a procedural argument the defendants had with their trial judge, and wrote about that for the Huffington Post. But soon, Sarokin became convinced of their innocence. And so he immersed himself in the facts of the case and in the backgrounds of the six men, who were all members of the same church, several of them military veterans, all with families and no criminal records. And then he wrote a play about the case, titled “The Race Card Face Up,” featuring actors speaking as five of the six defendants, and after it was staged last November at a playhouse outside San Diego, it was performed and filmed again in May and placed on YouTube.
Sarokin’s characters pull no punches. “How many white executives go to prison for 11 years for not paying corporate debt?” one asks. One character notes that the white defendant, David A. Zirpolo, is not on stage with them. Why? “His friends and family believe,” the actor says, “that he wouldn’t have been imprisoned if he hadn’t gone into business with five black brothers. And I suspect they may be right.”
In an interview, the retired judge said, “I don’t know if race played a part. But if you put all the connections together, I don’t know that there’s any other conclusion. You read every day about horrendous crimes committed by corporations, who are getting fined. I thought it was rare for corporate executives to be indicted and imprisoned for not paying their bills.”
U.S. Attorney John Walsh of Denver did not return phone and email messages seeking comment on the case, although it is fully resolved in the court system.
The case targeted the top executives of a Denver company called IRP Solutions — David A. Banks, Kendrick Barnes, Demetrius K. Harper, Clinton A. Stewart, Gary L. Walker and Zirpolo. They knew each other from church, and most had visited Ground Zero in New York, said Clifford Stewart, an IRP software developer and the brother of Clinton Stewart.
“Several of these men are veterans,” Stewart said. “They wanted to ensure that we will not let this happen again. We know how to build software, so we wanted the government to have the functional tools to fight crime and fight terrorism.”
IRP incorporated and rented office space, but they could not find investors immediately. So starting in 2002, they used temporary employment agencies to provide software developers and payroll services. The employment agencies paid the workers, and IRP was supposed to pay the agencies.
But even though IRP officials said they were in regular contact with the Department of Homeland Security and other law enforcement agencies, they had not landed a contract by 2005, and they were deep in debt to more than 40 employment agencies in the Denver area. Stewart said they were meeting with DHS and making modifications to the software requested by the government, but they still had not landed a paying contract and were unable to pay their bills.
Stewart said the owner of one of the agencies contacted a former federal prosecutor, who alerted the FBI to the situation. In February 2005, the FBI raided IRP’s offices and seized their records and software project. But no one was arrested, and Stewart said court records showed that in August 2005 the FBI sent a letter saying there would not be a criminal prosecution and that the unpaid debts were a civil matter. Still, the U.S. attorney’s office in Denver stuck with the case and presented it to a grand jury in March 2007, Stewart said. The grand jury, somewhat unusually, declined to issue any indictments.
The IRP developers continued to work on their software, but found they were persona non grata in the law enforcement world they had hoped to help, Stewart said. Federal and local agencies had been told that IRP was still under investigation, and everyone stayed away from them, Stewart said.
Two years passed. And then in June 2009, the U.S. attorney’s office presented the case to another grand jury, and the IRP 6 were indicted. “The old adage,” Sarokin wrote in his play, “that a prosecutor can indict a ham sandwich was proven.”
The case went to trial in the fall of 2011. The defendants were given court-appointed attorneys who implored them to plead guilty, Stewart said, so they fired the attorneys and represented themselves. This led to complications, particularly when the defendants did not have a witness ready after several delays and they said the judge compelled one of them to testify. But the jury agreed with the theory of Assistant U.S. Attorney Matthew T. Kirsch that the defendants committed mail fraud, wire fraud and conspiracy by hiring 42 different staffing companies and failing to pay them more than $5,000,000, lying to many of those companies that a contract was imminent. Each was then sentenced to at least seven years in prison and denied bail pending appeal by U.S. District Court Judge Christine M. Arguello.
Walsh said in a press release in 2012 that the “six defendants who defrauded staffing companies of approximately $5,000,000 will be spending a substantial amount of time in prison.” James Yacone, the FBI special agent in charge in Denver, said in the release, “The sentences handed down to these defendants appropriately reflects the seriousness of the specific crimes they committed. IRS Special Agent in Charge Lilia Ruiz said, “These sentencings send a clear message: there will be consequences for committing such crimes.”
The defendants hired lawyers for their appeal, but the 10th U.S. Circuit Court of Appeals rejected their claims in August 2014. The U.S. Supreme Court declined to take the case. Now they have launched an online petition and a clemency appeal to President Obama, pushed by a justice advocacy group called A Just Cause out of Colorado Springs.
“What amazed me about the case,” Sarokin said, “was the theory of the government, that this program they were developing was a scam. All of the proof in the case goes the opposite way.”
Sarokin noted that attempting to scam law enforcement agencies, as their sole customer, seems an unlikely target. The men all left their jobs to create the software, hired former FBI and immigration agents as consultants on the software, and made no profit from the scheme — each was paid about $50,000 per year for their work, Stewart said. “DHS doesn’t repeatedly call you if you’re running a scam,” Stewart said. He said he felt a corporate competitor interested in creating similar software pushed the feds to prosecute. “Our only crime,” one of Sarokin’s characters said, “was optimism.”
Sarokin spent 15 years as a federal district judge in New Jersey, then two years on the 3rd Circuit appeals court, which he said he found boring. So he retired in 1996 and moved to California. He launched a blog for awhile, commenting on various legal issues, and began contributing to the Huffington Post. Then as a longtime theater fan, he decided to try his hand at writing plays, and began working with the North Coast Repertory Theater in Solana Beach, Calif. He has now written six plays, mostly fictionalized versions of current events, but “The Race Card Face Up” was his first foray into non-fiction theater. In addition to reading the case, he said he checked his facts with each of the defendants, and verified that every line was accurate.
“I cannot shake my belief that an injustice has occurred in respect to their guilt,” Sarokin wrote immediately after the appeals court ruling. “The government’s contention that their business was nothing but a scam defies reality.” One of the characters in his play notes that all the defendants were well-educated, religious family men. “This project was to help the country,” he said. But the government turned on them. “And they whipped us,” he said. “Just like the old days.”
And so for the first time in more than 60 years, Sarokin is supporting a clemency petition. “There’s no evidence of criminal intent,” he said last week. “Even if these guys lied, they still intended to pay their bills. These guys just wanted to get the project done, make it a success and pay their bills.”
Stewart said the case had been “very very difficult on the families” of the IRP 6. “It’s not just that they’ve been wrongfully imprisoned for four years, but we’ve been fighting this battle for 10 years. It’s been a very difficult and trying time. A lot of tears have been shed.”
Here is a preview of the play: