Legal Ethics

9th Circuit Refuses to Edit Prosecutor's Name Out of Opinion, Tells DOJ to Own Up to Error


A federal appeals court that criticized a prosecutor last month for a “half-truth” was unmoved and apparently irked by a request to remove his name from the opinion.

In an amended opinion (PDF), the San Francisco-based 9th U.S. Circuit Court of Appeals kept the referral to Assistant U.S. Attorney Jerry Albert of Arizona and added criticism of his superiors. The Recorder and Courthouse News Service have stories.

“When a prosecutor steps over the boundaries of proper conduct and into unethical territory, the government has a duty to own up to it and to give assurances that it will not happen again,” Judge Carlos Bea wrote in U.S. v. Avila. “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.”

According to the opinion, Albert had misrepresented a drug defendant’s prior statements when trying to impeach her trial testimony that she had been forced to smuggle contraband. Although Albert’s cross-examination caused a mistrial, the revised 9th Circuit opinion still found no double-jeopardy bar to a retrial.

“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,” Bea’s opinion says. “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.”

Hat tip to How Appealing.

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