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. 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. \


  2. 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.

  3. 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.

  4. 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,

  5. Carol,

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

  6. 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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