(CN) – The Justice Department drew ire from the 9th Circuit on Tuesday by defending a federal prosecutor whom the court scolded last month for misrepresenting a suspected drug smuggler’s testimony and forcing a mistrial.
On Jan. 13, the San Francisco-based federal appeals court called for an investigation and possible censure of Assistant U.S. Attorney Jerry Albert. The Tucson, Ariz., prosectutor had “presented a falsified version” of a suspected drug smuggler’s prior statements, according to the court, mangling testimony to “make it seem to the jury as if [the suspect] had lied under oath about being threatened to commit the cocaine possession crime, when she had plainly responded to a magistrate judge’s question about whether she had been threatened to enter a plea of guilty.”
After the decision came out, the Justice Department criticized the court’s name-drop as “inappropriate” and filed a motion to remove Albert’s name from the Federal Record since he had not yet been disciplined or investigated for his actions.
The 9th Circuit rejected this maneuver in an amendment to the January opinion.
“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,” Judge Carlos Bea wrote for the panel. “Yet, we cannot find a single hint of appreciation of the seriousness of the misconduct within the pages of the government’s brief on appeal. Instead, the government attempts to shift blame by stating that ‘the prosecutor gave the defense counsel an opportunity to stop the offending question before the prosecutor asked it,’ but ‘defense counsel did not realize, or even inquire about, how the question from the change of plea transcript had been redacted.'”
“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,” Bea added. “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.”