Star Chamber Re-Indicts Simkanin 
 

Billboard Message To Judge McBryde
 

A Star Chamber is defined as any unnecessarily or unpleasantly curious investigating body, controlled by counselors appointed by royal authority that meets in secret session and hands down unjust and arbitrary judgments. 

The name derives from the English tribunal that met in a room where the roof was ornamented with stars. 

We doubt the Grand Jury room (in the basement) of the federal Court House in Fort Worth is ornamented with stars. However, for one day this week, at least, the Fort Worth Grand Jury functioned as a Star Chamber. 

Here are the facts as we know them: 

On November 25, 2003, Dick Simkanin’s trial on the charge of willfully failing to withhold income taxes from the paychecks of his workers ended in a "hung" jury. Reportedly, the jury voted 11-1 for acquittal. 

David Jarvis, the Assistant U.S. Attorney immediately told Judge McBryde to keep Simkanin in jail because the government was going to put Simkanin through another trial. The Judge agreed. 

Within days, Jarvis asked the Grand Jury to issue a (second) superseding indictment, adding multiple, additional counts to the previous (first superseding) indictment. 

Simkanin told Jarvis he wanted to testify before the Grand Jury because he wanted to present exculpatory (vindicating) evidence. 

Jarvis told Simkanin’s lawyer, Arch McColl, that he (Jarvis) would recommend to the Grand Jury that they hear directly from Simkanin before they make their decision regarding the indictment.  

We don’t know if Jarvis ever recommended to the Grand Jury that they hear from Simkanin, or if he did, just how strongly he made the recommendation. What we do know is Simkanin’s attorney (McColl) did tell Simkanin to get ready to testify before the Grand Jury at 9 AM on Wednesday, December 17, 2003 (later changed to 2 PM). 

Simkanin prepared two memorandums for presentment to each member of the Grand Jury. Each Memorandum had evidentiary exhibits attached to them. (See Simkanin’s memo-1 & memo-2, RIGHT-Click to download before opening)

On Tuesday, December 16, 2003, McColl informed Simkanin that after Simkanin’s one-hour testimony, Jarvis would ask Simkanin questions for one hour. Then the members of the Grand Jury would go home for the evening. NOTE: It has been reported to us that a common tactic of U.S. Attorneys is to schedule the testimony of the witness they DON’T want the jury to hear late in the afternoon and stall the grand jury until 4 PM (quitting time for the Grand Jury), hoping the Grand Jury will decide to go home without hearing from that witness. 

At about 1:45, Simkanin’s attorney and two paralegals arrived at the courthouse and proceeded to the Grand Jury Room. They had the Memorandums and the exhibits in boxes. They arrived outside the Grand Jury Room at the same time Jarvis and a DOJ attorney from Washington DC arrived (Bob something, we don’t know his last name).  

A US Marshal asked McColl what was in the boxes. Before McColl could answer, the DOJ attorney from DC said, “Just a bunch of tax protester crap.” 

The U.S. Marshall told McColl to leave the boxes where they were – outside the Grand Jury Room.  

Jarvis told McColl, “The IRS Special Agent who did the investigation on Simkanin would be testifying first, then Simkanin, then me (Jarvis).”  

Jarvis then asked McColl what was in the boxes. McColl said, “A nine page memorandum with exhibits.”  Jarvis asked to see the Memorandum. McColl allowed Jarvis to review the Memorandum.  

Jarvis and the DOJ attorney from DC went then went into the Grand Jury Room. McColl took a copy of both memos, saying he was going to meet with Simkanin in the Grand Jury Waiting Room for last minute preparations. The paralegals left the building. 

Sometime between 3 and 3:30 PM, a U.S. Marshall delivered Simkanin to a holding area outside the Grand Jury Room (meaning someone knew Simkanin was not going to go before the Grand Jury at 2:00 PM).  McColl met briefly with Simkanin and then LEFT Simkanin there alone in the Waiting Room. 

At about 4:00 PM, Jarvis went into the Grand Jury Waiting Room where Simkanin was waiting to be called. Jarvis told Simkanin, “The Grand Jury ran out of time. They are going home. They don’t want to talk to you.” 

Simkanin said, “I want to talk to the foreman.” Jarvis responded, “They don’t want to talk to you.” Jarvis then told the U.S. Marshall, “The Jury is retiring. Take him (Simkanin) back to jail.” 

A very disheartened and frustrated Simkanin got back to jail and called one of his paralegals and asked, “What happened.”  

The next day, December 18, 2003, the Grand Jury issued the superseding indictment and the paralegals returned to the courthouse to retrieve the exculpatory evidence Simkanin was not allowed to present to the Grand Jury. 

Dick Simkanin, the subject of a grand jury investigation, had a fundamental due process Right to testify before the Grand Jury. The Right of individuals to testify on their own behalf prior to being indicted is an essential ingredient in a fairly functioning grand jury — and criminal justice — system. Without it, the grand jury’s essential function of arriving at an accurate indictment is undermined because the jurors may be denied certain evidence.

It should be noted that in New York State, the State has recognized that a defendant has an absolute right to testify before the panel if he chooses and may also recommend specific witnesses to the grand jury.

It should also be noted that the National Association of Criminal Defense Lawyers has recognized that the federal grand jury continues to serve as a sword for the prosecutor, but that it has long ceased to perform its historic function as an independent entity acting as a shield to safeguard the citizenry against prosecutorial excess. See “The Report of Commission To Reform The Federal Grand Jury.” 

A wrongful indictment in itself — regardless of ultimate outcome — remains devastating. As Justice Kennedy noted in his plurality opinion for the U.S. Supreme Court in Gentile v. Nevada, 501 U.S. 1030 (1991), in the time period between indictment and trial, the accused may suffer ruinous consequences to his reputation and employment from which he may never recover even if acquitted.  

The grand jury works with the U.S. Attorney’s office, but it is not supposed to be controlled by that office. Grand juries listen to evidence, including any exculpatory evidence, and decide if someone SHOULD be charged with a crime. 

The original purpose of the grand jury was to act as a buffer between the king (and his prosecutors) and the citizens. If the Simkanin case is any indicator, this safeguarding role has been erased, and the grand jury simply acts as a rubber stamp for the prosecutor. Unfortunately, it is now left to the good faith of the prosecutor to present conflicting evidence.  

David Jarvis apparently decided not to allow the presentment of Simkanin’s exculpatory evidence.

However, Simkanin did not leave his Right to due process in the grand jury waiting room. A grand jury proceeding is not supposed to be a carte blanche license for a prosecutor to run amuck and ignore anyone’s constitutional rights or, for that matter, the obligation to show common decency owed by one human being to another.  

Here, the grand jury in the hands of an aggressive and unscrupulous prosecutor has done these very things with virtual impunity. Jarvis, and HIS jury, wield awesome power. The Grand Jury proceeding transitioned into a Star Chamber proceeding. 

Simkanin’s second trial is scheduled to begin on January 5, 2004. He remains in jail, where he has been since Jarvis and Judge McBryde decided, on June 27, 2003, to reject direct, sworn testimony, that Simkanin had not threatened any federal judges while attending a meeting last year. Instead, Jarvis and McBryde accepted unsubstantiated hearsay evidence from an IRS informant who, on information and belief, was a disbarred attorney who happened to be under investigation by the IRS for tax evasion and other crimes.  

We encourage everyone to please send a letter of encouragement to Dick Simkanin. He needs all the soul-mates he can muster. His address can be found at: http://www.arrowplastics.net.  

We have designed a message for Judge McBryde that we plan to place on a large billboard near the federal courthouse in Fort Worth. All we need is the rest of the money to cover the cost. Please send your cash contribution to the We The People Congress, c/o our Texas State Coordinator, Hank Goltz. His address is PO Box 690126, San Antonio, Texas 78269.  To help using a credit card, PayPal, etc., please visit our secure
on-line donation page. 

Finally, please note that we are planning for a BIG presence in Fort Worth on January 5^th. PLEASE make plans to be in Forth Worth on Jan 5, 2004, in support of the acquittal of Dick Simkanin. Details of what we have planned will be posted here later this weekend.



Please Donate on-line so that Fort Worth and Judge McBryde can see the Simkanin billboard.

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