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Is There an Unlicensed Prosecutor Defense?

Themis and gavel
By William Vogeler, Esq. on May 15, 2019

Gilbert Mendez pleaded guilty to drug crimes, but challenged his conviction later when he found out the prosecutor for his case was not licensed to practice law.

The Assistant U.S. Attorney had fallen behind in continuing legal education requirements, and the North Carolina State Bar suspended his license. After failing at lower courts, Mendez petitioned the U.S. Supreme Court in Mendez v. United States of America. The Department of Justice opposed, saying it did not matter that the AUSA was unlicensed because the court still had jurisdiction. But until the Supreme Court decides, that's an open question.

Unlicensed Prosecutor

In the trial court, Mendez moved to vacate his 2005 conviction  and sentence. He argued the district court lacked jurisdiction because the case had not been initiated by "a proper representative of the Government." The trial judge denied the motion, ruling that Mendez did not have "a constitutional right to a properly licensed prosecutor." The U.S. Sixth Circuit Court of Appeals also denied the defendant's motion for a certificate of appealability. The appeals court observed that federal rules require an indictment be "signed by an attorney for the government," but the DOJ argued successfully that the requirement also applied to an assistant attorney who signed the indictment.

However, the DOJ admitted that the prosecutor assigned to the case was not licensed at the time. "The AUSA did sign the plea agreement along with the petitioner, the petitioner's counsel, and the district judge," the Justice Department said in its brief to the Supreme Court. In any case, the department argued, the district court still had jurisdiction -- even if the prosecutor's license was suspended. Such defects do not deprive a court of its power to adjudicate a case, the government said.

Unlicensed Problems

While it may not affect a court, attorneys will always feel the impact of practicing law without a license. In Rhode Island, for example, three government lawyers resigned over it. They were three top attorneys in the state, but had trouble with their licenses. One was licensed in two other states, but not Rhode Island. The others had their own issues. In every case, the lesson for lawyers is clear: do pay your bar dues; don't flaunt reciprocity rules; and don't ignore continuing education.

In the case of the Mendez prosecutor, continuing legal education took on a whole new meaning.

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