“Federal Prosecutors … Should Not Be Able to Hide Behind the Shield of Anonymity When They Make Serious Mistakes”

From United States v. Lopez-Avila (9th Cir. amended Feb. 14) (thanks to How Appealing for the pointer):

On the second day of trial in this drug trafficking prosecution, during the cross-examination of Defendant–Appellant Aurora Lopez–Avila, the prosecutor read back supposed testimony of Lopez–Avila from her earlier change of plea hearing. What he read back seemed to contradict Lopez–Avila’s earlier statements on direct examination. Using this supposed prior testimony, the prosecutor—Assistant U.S. Attorney (AUSA) Jerry R. Albert, of the U.S. Attorney’s Office for the District of Arizona—accused Lopez–Avila of having lied to the federal magistrate presiding at an earlier hearing.

But the prosecutor’s quotation was only part of what he represented was a question asked the defendant under oath by the magistrate judge. It was a half-truth. Without telling the court or defense counsel, the prosecutor presented to court and counsel an altered version of the prior hearing’s question and answer, and the altered version of such dialogue made it appear as though Lopez–Avila had contradicted herself on a material point, when she plainly had not. The district court naturally assumed the prosecutor had read the question and answer whole, and allowed the questioning to proceed. When the prosecutor’s misrepresentation was discovered by defense counsel, he moved for a mistrial, which the court swiftly granted. The defense then moved to dismiss the indictment with prejudice, on double jeopardy grounds, but the district court denied that motion. Lopez–Avila’s appeal from the denial of that motion is the legal issue before us.

We affirm the district court’s denial of the motion to dismiss the indictment on double jeopardy grounds. In addition, we take several steps to ensure that AUSA Jerry Albert’s actions are properly investigated, and that he is disciplined if the relevant authorities deem it proper. In so doing, we bear in mind that AUSA Albert’s conduct is not directly before us, and we express no judgment as to what sanctions, if any, are proper.

And here’s an excerpt from today’s amendment:

[U]pon 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”), available 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.

For whatever it’s worth, the opinion was written by a Bush, Jr. appointee (Judge Carlos Bea) and joined by two Reagan appointees (Judge John Noonan and District Judge Donald E. Walter).