Meet Carlos Bea, Your New Favorite Federal Judge

Thursday, February 23rd, 2012

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.

Yep. Look at what’s happening on the Google.

Digg it |  reddit | |  Fark

20 Responses to “Meet Carlos Bea, Your New Favorite Federal Judge”

  1. #1 |  BamBam | 

    And what will happen to the lying prosecutor? NOTHING. He will continue to get his check, work towards his pension, and continue to destroy lives.

  2. #2 |  bigjohn756 | 

    I got a bit more than verklempt as I finished reading Judge Bea’s opinion. I got some actual tears at the expression of such clear thinking.

  3. #3 |  primus | 

    Who is Jerry Alpert and why is his name linked to in google? Someone needs to check spelling.

  4. #4 |  paranoiastrksdp | 

    Alpert or Albert?!!?!

    Buttle or Tuttle?!?!!?

  5. #5 |  dsp | 

    Wait, how do we control the citizenry if we can’t keep our dealings private?

    A bill will be introduced into the AZ legislature that protects prosecutors identity for terrorism and WOD reasons within 6 months.

    Mark my words.

  6. #6 |  Nando | 

    Well, this is certainly refreshing. I’d say it’s just like finding 10000 lawyers at the bottom of the ocean (definitely, a good start!).

  7. #7 |  Radley Balko | 

    Fixed the Google link. Sorry about that.

  8. #8 |  SJE | 

    Even better, if you look at the actual opinion, the judge amended it to (A) give the District Court the option of dismissing with prejudice to make a statement about the lying AUSA and (B) lists all the ways that the AUSA could be disciplined, and suggests that the District Court and the Justice Dept actually investigte.

  9. #9 |  Reggie Hubbard | 

    >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.

    This reads like the last two lines of a great Agitator column where somehow Radley manages to encapsulate all my anger and disgust of a story into a fitting, logically, and easily digestible soundbite that is pretty much impossible to disagree with.

  10. #10 |  CyniCAl | 

    Radley, you should excerpt Bea’s quote and put it up as a banner on your blog. Bea’s words are as close to the spirit of this blog as I have seen come from someone other than you.

  11. #11 |  Jeff | 

    Too bad he’ll lose his job when President-for-Life Gingrich abolishes the 9th Circuit by dictatorial fiat.

  12. #12 |  Cornellian | 

    “Too bad he’ll lose his job when President-for-Life Gingrich abolishes the 9th Circuit by dictatorial fiat.”

    When I heard Gingrich make that threat I thought it was a bizarre thing to say from a guy who claims to be a historian. Apparently he doesn’t know that among our complaints about the British King in the Declaration of Independence is that:

    “He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.”

  13. #13 |  Cornellian | 

    By the way, I seem to recall seeing somewhere a link to the actual audio of this hearing and I’ve been told that one of the judges on the panel asked the DOJ lawyer if the prosecutor was still a government employee . . .

  14. #14 |  el coronado | 

    IANAL, it’s late, and there was tequila….I think….lots & lots of tequila shots.

    But. A bleary-eyed, possibly still-drunk perusal of the article reveals the wonderful fact that while Judge Bea and his fellow black-robed priestly caste rudely bitch-slapped the DOJ and AUSA Asswipe, there seems to me to be one little problem that really kind of makes the bitch-slapping moot.

    If I read that right, the gummint wanted to ignore the double jeopardy prohibition and go after Lopez-Avila again. Clearly, the jury had fucked up by not rubber-stamping a conviction, and Uncle Sam’s bloodthirsty, charge-stacking prosecutorial minions don’t like to lose: messes up the ol’ career track. So they thought, “Screw the Rules! we’ll just try him again (and again) until we get the result we want!! OK if we do that, 9th Circuit?”

    And now we come to the only words that truly matter in this whole article: “a question the panel decided in the government’s favor.”

    So unless I read that wrong, AUSA Asswipe suffers a little temporary embarrassment…and Lopez-Avila gets to go on trial for his life. Again.

  15. #15 |  OGRE | 

    IAAL, but not having researched this particular issue or this case…

    Correct that the original opinion means that the government can bring the case again.

    However, the general rule is that a result of a mistrial doesn’t invoke double jeopardy. (Otherwise, the defense could purposefully pursue a mistrial in the hopes of forever avoiding a final verdict.)

    My understanding is that if the prosecution causes a mistrial, its a question of whether the prosecution was purposefully seeking a mistrial (i.e. if the prosecution thinks the case is tanking, then makes a willful decision to bring about a mistrial so that they can try it over.) So the original question is whether the prosecutor’s improper conduct was to secure a conviction or to goad the defense into seeking a mistrial. If the former, then the mistrial does not bar a new trial on double jeopardy grounds. If the latter, then a new trial is barred.

    Seems that the court decided that the prosecutor here was aiming for a conviction, not a mistrial. Hence, a new trial is permitted.

    All that aside, the prosecutor should of course incur some punishment for his conduct, no matter the final results as to the defendant.

  16. #16 |  Michael Chaney | 

    My only complaint is that the judge still can’t get past the.passive voice. He had an “error” that was the problem. He “made a mistake”. I would love to see them call him on his conduct, but I suppose this is as close as we’ll get.

  17. #17 |  pim FEE | 

    Great story, but scary also!

  18. #18 |  SJE | 

    @15: In this case, the govt committed two errors. The first was during trial. The second was in appealling it and then trying to redact the name of the AUSA. The judge not only criticised the AUSA, but the DOJ and it is clear that he is favoring some sort of sanction to make an example of this case.

    Personally, I tend to favor a more vigorous use of “dismissal with prejudice” when the government screws up. The govt can bleed dry the resources of even wealthy defendants by dragging out the trial, retrying, etc.

  19. #19 |  RB | 

    Wish I got that Federal Judge back in 10-31-1989, under Federal (A.D.A.) Prosecutor Andrew Luger, who broke about 25 Federal Laws, just to do Career moves on himself and acted in cahoots and collateral with Federal Judge Crooked Kapo Chief Judge Edward Korman (of Eastern Federal Court, Brooklyn, NY), they both together broke about 25 Federal Laws, broke Constitutional Laws afforded to a defendant (me) and allowed Evidence tayloring and withheld evidence of Prosecutor (Andrew Luger), who should be fined and jailed for the illegal 10-31-1989 case in Eastern Federal District Court, Brooklyn, NY.

  20. #20 |  RB | 

    Mr. Bambam! I agree with you, the phony Prosecutor will continue to live the lie, of his fraudulent case. The Prosecutor should be fined, jailed and probably tar and feathered for the illegality he did, as in my original case (10-31-1989) of a Crooked Kapo Jew Prosecutor (Andrew Luger), who broke over 25 Federal Laws for Career moves, along with the Crooked Kapo Jew Federal Judge (Edward Korman) (of Eastern Federal Court, Brooklyn, NY) in 10-31-1989, who allowed it to happen. Besides besmirching and slandering me in the News Press (Asso”CIA”ted News Press from 10-31-1989 to 11-03-1989).

    Prosecutors are allowed Prosecutorial Misconduct, and they get away with it, that’s why the whole USDOJ (both Courts, and Federal Prisons) have broke down. They did it to themselves, with Crooked Federal Judges and crooked Federal Prosecutors. As in my 10-31-1989, Eastern District Federal Case, that was Totally illegal and Judge and Prosecutor got away with it.