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No Sympathy for Prosecutorial Misconduct Discretion Plea

By Robyn Hagan Cain on February 17, 2012 | Last updated on March 21, 2019

Publicity, according to the Ninth Circuit Court of Appeals, is a two-way street. This week, the Ninth Circuit rejected a motion to eliminate a prosecutor's name from an opinion that alleged the attorney had engaged in prosecutorial misconduct.

The prosecutor in question is Arizona Assistant U.S. Attorney Jerry Albert, who allegedly misrepresented a drug defendant's prior statements when trying to impeach her trial testimony. (Brief thanks to Jonathan Turley for bringing this opinion to our attention.)

The Ninth Circuit had harsh words for Albert when it initially released its opinion in USA v. Lopez-Avila, suggesting that Albert crossed an ethical line in Lopez-Avila's trial in an attempt to "win at all costs."

While the judges acknowledged that the appellate court was not the appropriate venue to discipline Albert for a trial-based error, it noted, "we do not need a record greater or different than we have here to determine that Albert should not have misrepresented the transcript's question," and directed the district court to consider disciplinary options. The court also said that the Department of Justice's Office of Professional Responsibility had a responsibility to investigate allegations of prosecutorial misconduct.

The government filed a motion requesting that the court amend the opinion to substitute Albert's name with "the prosecutor" in the Federal Reporter, arguing that naming Albert publicly was inappropriate without knowing the outcome of any potential investigations or disciplinary proceedings.

The Ninth Circuit Court of Appeals responded to the motion with a Sarah Palin-esque, don't-retreat-reload approach, amending the original opinion to call out both Albert and the DOJ for their shenanigans.

"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. 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 ... 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."

So we have two lessons from the Ninth Circuit Court of Appeals leading into the long weekend: Don't commit prosecutorial misconduct, and don't expect the appellate courts to cover your mistakes if you do.

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