Metropolitan News-Enterprise


Wednesday, February 15, 2012


Page 1


Panel Rejects Bid to Remove Prosecutor’s Name From Opinion

No ‘Shield of Anonymity’ for Wrongdoing Lawyers, Judges Say




The Ninth U.S. Circuit Court of Appeals yesterday denied a Justice Department request to remove a prosecutor’s name from a published opinion citing him for misconduct.

“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,” Judge Carlos T. Bea wrote. “....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.”

The Ninth Circuit ruled Jan. 12 that double jeopardy did not prevent drug smuggling charges from being reasserted against Aurora Lopez-Avila,  who obtained a mistrial after the prosecutor presented a falsified version of her earlier statements to impeach her.

Harsh Rebuke

But the panel harshly rebuked Assistant U.S. Attorney Jerry Albert, calling it “a case of a prosecutor crossing the line in an attempt to ‘win at all costs,’ ” and reminding government lawyers “that the dual obligation of a federal prosecutor in our justice system is to strike hard blows but to refrain from striking foul ones; to use legitimate means to attempt to secure a conviction without employing improper methods to do so.”

The government subsequently asked the panel to rehear the case, or for rehearing en banc, and also moved that all references to Albert by name be revised to read “the prosecutor.” The court, in a published order yesterday, denied rehearing by the panel, denied the motion to remove the prosecutor’s name, and announced that no active judge had asked for a vote on rehearing en banc.

The panel did, however, amend its opinion, referring to Albert by name 14 more times, for a total of 39, as it elaborated on what it found to be prosecutorial misconduct.     

Lopez-Avila was arrested after she attempted to enter the United States from Mexico at the Nogales Port of Entry in Arizona. She was charged by indictment with possession with intent to distribute over 5 kilograms of cocaine.

She initially pleaded guilty, and a magistrate judge proceeded to ask her a series of questions to ensure she was knowingly and voluntarily entering her plea to the charges against her.

During this colloquy, the magistrate judge asked her if “anyone threatened you or forced you to plead guilty,” and Lopez-Avila answered in the negative.

One month later, during a presentence interview, Lopez-Avila stated that she had been “forced” into the smuggling attempt. Her counsel then moved to withdraw the guilty plea in light of this new information.

Following a hearing, the motion was granted and the case went to trial.  Lopez-Avila conceded that she had been transporting contraband, so the only contested issue was whether she was acting under duress.

Defendant’s Testimony

On the afternoon of the second day of trial, Lopez-Avila took the stand in her own defense. She testified she had been coerced to transport the drugs, and during cross examination Albert attempted to impeach Lopez-Avila’s testimony regarding such coercion by asking questions regarding what Lopez-Avila had said during her initial guilty plea hearing.

Defense counsel objected, and at sidebar, Albert requested that he be allowed to recite to Lopez-Avila the following question and answer from the initial guilty plea hearing: “COURT: Ms. Lopez, has anybody threatened you? DEFENDANT: No.”

The trial judge overruled the objection and allowed the prosecution to proceed.

Albert then asked Lopez-Avila: “do you recall testifying under oath on February 24th, 2010, and being asked…by the magistrate judge…has anyone threatened you…[and] did you give the following answer: No.”

After Lopez-Avila answered in the affirmative, Albert remarked that “you’ve now admitted that you in fact told the judge that you were not threatened in this case,” so “[d]id you lie… about not being threatened?”

Lopez-Avila again answered in the affirmative, and the cross-examination proceeded for about 40 more minutes before a recess was called.

During the recess, defense counsel asked the prosecution for a copy of the transcript from the guilty plea hearing. Upon reviewing the transcript, defense counsel noticed that the prosecutor had misquoted the magistrate judge’s question to Lopez-Avila, without notifying the court or defense counsel of his alteration.

The defense then moved for a mistrial, which was granted. The subsequent defense motion to bar retrial on double jeopardy grounds was denied, based on a finding that the prosecutor had not made a strategic decision to cause a mistrial.

In his opinion for the panel, Bea agreed with the district judge, while harshly criticizing the prosecutor.  He compounded that criticism yesterday, adding that it was the responsibility of the government to supervise the conduct of its prosecutors.

“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,” he wrote.

“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.”

The case is United States v. Lopez-Avila, 11-10013.


Copyright 2012, Metropolitan News Company