9th Circuit, Benchslaps, Department of Justice, Federal Government, Federal Judges, U.S. Attorneys Offices

Benchslap of the Day: Say My Name, Say My Name

Judge Carlos Bea

Judge Carlos Bea is one of my favorite members of the Ninth Circuit. He’s refreshingly conservative, on a famously (or infamously) liberal court. He has a fascinating personal history; how many federal judges can claim they were almost deported? He has an ancestral home — some call it a castle — in Spain, which he sometimes makes available to vacationing law clerks. And he tools about town in a vintage Rolls-Royce (which, rumor has it, he received as payment for legal work before he took the bench).

Well, it looks like one assistant U.S. attorney has some expensive tire marks on his back. Check out the epic benchslap that Judge Bea just dished out — not just to the poor prosecutor, but to the United States Department of Justice….

On January 12, the Ninth Circuit issued a published opinion in the case of United States v. Lopez-Avila. Judge Bea, writing for a unanimous three-judge panel, had some critical comments about assistant U.S. attorney Jerry Albert of Arizona, who got name-checked in the opinion. Albert was criticized by the court for telling “a half-truth” during the trial — specifically, misrepresenting testimony from a prior proceeding while cross-examining the defendant at trial.

This misrepresentation resulted in a mistrial. The question presented on appeal was whether the prohibition on double jeopardy prohibited a retrial (a question that the panel decided in the government’s favor).

After the initial decision came down, the government moved to have Jerry Albert’s name removed from the opinion. That didn’t go over well with Judge Bea and his colleagues, who amended the opinion to add the following language, among other material (citations omitted):

The mistake in judgment does not lie with AUSA Albert alone. We are also troubled by the government’s continuing failure to acknowledge and take responsibility for Albert’s error.

The Department of Justice has an obligation to its lawyers and to the public to prevent prosecutorial misconduct. Prosecutors, as servants of the law, are subject to constraints and responsibilities that do not apply to other lawyers; they must serve truth and justice first. Their job is not just to win, but to win fairly, staying within the rules. That did not happen here, and the district court swiftly and correctly declared a mistrial when Albert’s misquotation was revealed.

And what did the Ninth Circuit make of the government’s request to remove the Jerry Albert shout-out?

[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)…. 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.

Boom goes the Google bomb. By seeking to have Jerry Albert’s name removed from the opinion, the government just caused his name to be forever associated with this misstep. The latest benchslap received far more media attention than the initial opinion (see the many links collected below).

Moral of the story: if you get slammed, in an actual court or in the court of public opinion, sometimes it’s best to just take your lumps.

United States v. Lopez-Avila [U.S. Court of Appeals for the Ninth Circuit]
Court says U.S. attorney can’t shield prosecutor’s misconduct [Crime Scene / San Francisco Chronicle]
Circuit Takes Hard Line When Asked to Go Easy on Prosecutor [The Recorder]
9th Circuit Refuses to Edit Prosecutor’s Name Out of Opinion, Tells DOJ to Own Up to Error [ABA Journal]
Panel Rejects Bid to Remove Prosecutor’s Name From Opinion [Metropolitan News-Enterprise]
Federal court critical of U.S. Attorney’s Office in Az [Tucson Sentinel]

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