Ninth Circuit Refuses To Remove Name Of Federal Prosecutor From Opinion On Unethical Conduct

The United States Court of Appeals for the Ninth Circuit issued a stinging rebuke to the Justice Department after refusing to remove the name of a prosecutor who acted unethically from an opinion. The effort by the Justice Department to conceal the name of the prosecutor, the court noted, was in sharp contrast to its common heralding of the accomplishments of its prosecutors in public. The move reaffirmed the view of many lawyers that the Justice Department often acts reflexively in defense of its lawyers — often resisting efforts to hold abusive prosecutors accountable. Assistant U.S. Attorney Jerry Albert is accused of misrepresenting a drug defendant’s prior statements when trying to impeach her trial testimony.

In the decision below, the 9th Circuit not only retains the references to Albert of Arizona but adds criticism of his superiors. Judge Carlos Bea wrote:

The mistake in judgment does not lie with AUSA Albert alone. We are also troubled by the government’s continuing failure to acknowledge and take responsibility for Albert’s error.
The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). Their job is not just to win, but to win fairly, staying within the rules. Berger, 295 U.S. at 88. That did not happen here, and the district court swiftly and correctly declared a mistrial when Albert’s misquotation was revealed.
When a prosecutor steps over the boundaries of proper con- duct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again. Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government’s brief on appeal. Instead, the government attempts to shift blame by stating that “the prosecutor gave the defense counsel an opportunity to stop the offending question before the prosecutor asked it,” but “defense counsel did not realize, or even inquire about, how the question from the change of plea transcript had been redacted.” Gov’t Br. 26-27. Of course, as we have explained, Albert told the district court what he intended to say. Albert did not tell the court or oppos- ing counsel that what he intended to say was not a full nor fair recitation of the magistrate’s question to Lopez-Avila.
Finally, upon initial release of this opinion, the government filed a motion requesting that we remove Albert’s name and replace it with references to “the prosecutor.” The motion contended that naming Albert publicly is inappropriate given that we do not yet know the outcome of any potential investigations or disciplinary proceedings. We declined to adopt the government’s suggestion and denied its motion. We have noticed that the U.S. Attorney’s Office in Arizona regularly makes public the names of prosecutors who do good work and win important victories. E.g., Press Release, U.S. Attorney’s Office for the District of Arizona, “Northern Arizona Man Sentenced to Federal Prison for Arson,” (January 31, 2012) (“The prosecution was handled by Christina J. Reid-Moore, Assistant U.S. Attorney, District of Arizona, Phoenix”), avail- able at PR_01312012_Nez.html. If federal prosecutors receive public credit for their good works—as they should—they should not be able to hide behind the shield of anonymity when they make serious mistakes.>

Here is the amended decision: 11-10013

Source: Recorder as first seen on ABA Journal.

28 thoughts on “Ninth Circuit Refuses To Remove Name Of Federal Prosecutor From Opinion On Unethical Conduct

  1. Absolutely the right decision. There is way too much prosecutorial misconduct in this country. Naming the offenders is absolutely the right thing to do. This country is rive with the ‘forgiveness complex’ & it’s time to hold people accountable for misdeeds.

  2. Would we not then be looking backwrd instead of forward? If it is good enough for war criminals shouldn’t be good enough for this case.

  3. any organization of sufficient size tries to protect its own, thats why you want a system of checks and balances like we used to have in the US.

  4. What everyone up thread said…..

    I didn’t know Nancy Grace had a school for the Advancement and Promotion of Ethics…… APE…..says it all….

  5. Excellent … now … let’s move on to Law Enforcement

    Hopefully the pendulum is moving back to its equilibrium position.

  6. A fitting “honor”…

    Justice Department wins secrecy prize

    by Al Kamen, Published: February 14

    Full article:

    The Justice Department, beating fierce competition from the CIA, the Department of Homeland Security and others, has won this year’s coveted Rosemary Award, named for President Richard M. Nixon’s secretary Rose Mary Woods , who somehow erased 181 / 2 minutes of a crucial Watergate tape.

    The seventh annual award, presented by the George Washington University-based National Security Archive, honors the agency that has done the very most in the previous year to enhance government secrecy and keep the public in the dark.

    The agency’s actions “seem in practical rebellion against President Obama’s 2009 open-government orders,” said Tom Blanton, director of the Archive.

    The Archive said the department, among other things, engaged in “selective and abusive prosecutions of espionage laws against whistleblowers as ostensible ‘leakers’ of classified information” and conducted “more ‘leaks’ prosecutions in the last three years than in all previous years combined,” while experts say “over-classification” of government documents is endemic.

    There were a number of positive moves by Justice, the Archive said, but these were “outweighed by backsliding in the key indicator” of increased use of the exemption in the Freedom of Information Act (FOIA) for documents that might reveal too much of the “deliberative process” — that is, who actually advocated or opposed a policy — before it was announced. Justice used it to withhold information 1,500 times in 2011, up from 1,231 in 2010.

    (Well, maybe they’re deliberating more these days?) (end of article)

  7. Never trust a prosecutor with two first names. This was the defendant and not some other witness being lied about. The case should be dismissed with prejudice because of the intentional lie by the prosecutor and the United States of America. The United States Attorney is the spokesperson for the United States of America. When they bring forth lies to the courtroom and before a jury they need to have the peeny whacked more than just calling a mistrial. They altered a transcript? Read it in open court? To a defendant in front of the jury in order to call her a liar? Make the prosecutor wear a tee shirt in court with a statement printed thereon which says: “I am a liar.
    My gas passed out of the other end is more trustworthy than anything which comes out of my mouth.” He was not fired? The U.S. Attorney, his boss, should be fired as well for attempting the cover up.

  8. ‘Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. United States v. Kojayan, 8 F.3d 1315, 1323 (9th Cir. 1993). Their job is not just to win, but to win fairly, staying within the rules.’
    …so, does this mean that other genres of Attorney and Court representatives are NOT beholden to the truth and fairness that we, citizens and public, are led to believe is our due, our right and what is (we are told)being currently served up in the courts?

  9. I would file the following motion in any criminal case in this jurisdiction:


    Comes now defendant and for his motion under the Jerry Allen fraud doctrine states as follows:
    1. Defendant is being charged under an indictment obtained by the United States Attorneys Office in this District which has committed fraud on this court in the case of …
    2. Defendant is enttitled to a fair trial and is entitled to confront the witnesses against him and to be provided true, accurate, exact transcripts of depositions or witness statements of any witness or persoln with knowledge of the facts underlying this case, and is entitled to question and depose any court reporter who has presumably transcribed any statements, sworn or otherwise, made by any person with facts pertinent to this case.
    3. Assistant United States Attorney Jerry Albert and the United States Attorney, Joe fraud, have committed fraud upon the court in the method of altering transcripts which had been attested to by certified court reporters and have shown no remorse and can be expected to commit frauds upon the court in this matter.
    4. Defendant seeks a detailed list of all statements of any person regarding facts pertaining to this case, whether sworn or not, whether taken in audio or video format or in writing, whether before a court reporter or not and the name, address, email address, telephone number, social security number, of any witness to such statements and a copy of any such statements whether reduced to transcript, video, audio recording, handwriting, typed, or internet filing within 20 days, of this date and further, that any court reporter so identified be produced at the governments expense at counsel for defendant’s law office on the __ day of ___ for deposition.

    But wait there is more…

  10. Usually a trickster like this prosecutor will have done this same fraud on the court before. Anyone convicted where he was the prosecutor and where he examined a witness with a written statement, whether a transcript or other statement, should file a Jerry Allen Motion and a habeas action to set aside the conviction. When one files a Jerry Allen Motion the decision of the 9th Circuit should be appended. He should be as famous as Alford or that Carmen Miranda person for whom incrimination warnings are named.

  11. Yeah, I know his name is really Jerry Albert not Allen. I just wanted you to catch that and then his name will sink in and the Jerry Albert Motion will obtain widespread use in that courthouse. He will be famous and forever thought of when fraud on the court is at issue. You cannot forget a name attached to a thing like the Miranda warning and Carmen Miranda is well remembered by most criminals.

    Just a dogtalkin.

  12. The Miranda Warning: You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to speak to an attorney. If you cannot afford one, one will be appointed to you by the state. Do you understand these rights as they have been read to you?

    The Carmen Miranda Warning: You have the right wear fruit upon your head. If you do so, take care not to cause head or neck injuries. You have the right to sing and dance. If you cannot sing and dance, you can deliver dialog in a heavy accent. You have the right to be imitated by Bugs Bunny. If you cannot afford your own Bugs Bunny, don’t sweat it. He’s going to imitate you anyway. Do you understand these rights as they have been read to you?

  13. An excellent and appropriate decision. Like TD says, others who have been prosecuted by this man need to file appeals, he has now thrown all of his cases into doubt.

    I ran across this a couple of days ago and thought that the business of prosecutor was going to get even more disreputable than it already is if states start taking these guys up on their offer:

    :Private prison company offers to buy 48 states’ prisons”

    [Relevant language, my emphasis]

    In exchange for keeping at least a 90 percent occupancy rate, the private prison company Corrections Corporation of America (CCA) has sent a letter to 48 states offering to manage their prisons for the low price of $250 million per year, according to a letter obtained by the Huffington Post.”

  14. My experience has been lawyers uniformly act in a manner to protect other lawyers. What would be surprising would be the the wagons are being not drawn around.
    I guess the judges on the court missed te memo about the thin blue line around lawyers. Good for them. Good for us. Mabe this will start a trend.

  15. Yeah, Gene. I figure that if one puts a name on this Prince Albert Motion to reveal the honest transcripts, pre trial, then it will get more traction in district court out there in Arizona. The Carmen Miranda warning should be given by one with a pineapple on one’s head. What a second, he is not Prince Albert, he is ….
    Anyway, the Ninth Circuit outed him and the defense lawyers need to stay on their toes and watch that dog. Oops, wrong word. \


  16. carol levy:

    “My experience has been lawyers uniformly act in a manner to protect other lawyers.”

    This is decidely not true in my state. Lawyers have much more stringent ethics equirements than most every other profession including physicians.

  17. rafflaw:

    As my very conservative family doc told me once: “If I had to leave the country fast and had to deposit all my cash with somebody, it would be with you.” Still a little honor left I think.

  18. I hope that my experience, and those of a number of folk I know, are not representative of the group as a whole. Unfortunately my personal experience has left me bitter about attorneys, as well as the process when one makes a complaint. (The wagons were drawn – as I wrote on another post a gazillon posts back, I went to fee dispute, was ‘awarded’ an additional amt of money, very low 5 figures. Nevertheless the letter read we find in favor of the attorney so he now has no record of having been found errant by fee dispute.)
    I need an attorney now and am feeling like diogenes,

  19. Carol,

    Their are indeed some good one out there, but I do understand your frustration. I hope your lamp shines on one soon.

  20. As a private criminal defense attorney, I read the opinion and sent it to my state organization: Kentucky Association of Criminal Defense Lawyers and it was sent to all our membership. Thanks for posting.

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