WASHINGTON – A federal appeals court Tuesday criticized the U.S. attorney’s office in Arizona for failing to “acknowledge and take responsibility” for the courtroom behavior of a federal prosecutor the court had chided last month.
The latest ruling from a panel of the 9th U.S. Circuit Court of Appeals was a response to the government’s request that the name of the prosecutor in the January case be stricken from that opinion.
Not only did the court deny that request, it said it was “troubled” by the U.S. Attorney’s Office handling of the situation.
“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,” the judges wrote.
But the court said it could not find “a single hint of appreciation of the seriousness of the misconduct” in the government’s appeal.
In refusing to remove the prosecutor’s name from the earlier opinion, the court cited announcements praising good work by assistant U.S. attorneys. If federal prosecutors can get credit, they should not be able to “hide behind the shield of anonymity when they make serious mistakes,” the court said.
The dispute began in January when the court ruled that Assistant U.S. Attorney Jerry Albert had presented a “falsified version of testimony” in a drug–smuggling trial, to make it appear as if the defendant had lied on the stand.
Aurora Lopez–Avila had pleaded guilty to drug charges after being caught with cocaine at the Nogales border crossing in 2009. At sentencing, she said “no” when the magistrate judge asked if she had been forced to plead guilty.
But she later withdrew the plea, saying she was fearful because she had been “forced” to smuggle the drugs. She went to trial in late 2010.
At trial, Albert asked to question Lopez–Avila on her testimony at the sentencing hearing, in which she said had not been threatened to plead guilty. But he left off the part about pleading guilty, asking instead if she had replied “no” to the question, “Has anyone threatened you?”
The court said the “half–truth” by Albert made it appear as if Lopez-Avila had lied on the stand. When her attorney discovered the edited question, he asked for and was quickly granted a mistrial.
In the January appeal, the court said it could not rule on Albert’s behavior, since it was only presented with a question of double–jeopardy for Lopez–Avila. But it did say that it would take steps to ensure his behavior was investigated.
In its ruling Tuesday, the panel went further, saying the “mistake in judgment does not lie with … Albert alone” and it instructed the district court to consider disciplinary options.
Larry Hammond, an attorney with Phoenix firm Osborn Maledon, said the court “took a conservative approach” in January, pointing out the problem and leaving it to the Justice Department to address.
“Only when it discovered now that the government apparently does not intend to do anything about it, does the court say, ‘We need to step in and take the next step – that is to specifically say that these issues need to be addressed by the (Justice Department’s) Office of Professional Responsibility,” Hammond said.
He said he hopes the opinion forces other prosecutors to think twice, causing them to think that “if we don’t supervise our own people and assure that they maintain the highest standards of ethical responsibility, a court will do it for us.”
“I think that’s something no prosecutor wants,” Hammond said.
Neither the U.S. Attorney’s Office for Arizona nor the Office of Professional Responsibility immediately responded to requests for comment Tuesday.
The appeals court opinion noted that the deadline has passed to request a rehearing. Hammond said that means the government’s only appeal would be to the Supreme Court.