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 http://www.justice.gov/usao/az/press_releases/2012/ 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.