I’ve noted before the absurdity of the judges not calling out misbehaving prosecutors by name, even in opinions that find really egregious misconduct. This makes it much more difficult for journalists and watchdog groups to find repeat offenders.
So let’s all raise a glass of tasty bourbon to Judge Carlos Bea of the U.S. Court of Appeals for the 9th Circuit.
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 then issued an amended opinion chock-full of extra-delicious morsels of sweet accountability:
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 . . .
[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.
I’m getting a bit verklempt.
David Lat rightly points out that there’s now a nice bit of Streisand Effect going on here. The DOJ’s attempt to help Albert shirk responsibility has won far more media coverage than the case would have otherwise received.