Prosecutorial Misconduct Leads to Dismissal of Drug Charges and an Extraordinary Rebuke

Writing in the Drug War Chronicle, Clarence Walker describes a cocaine smuggling case handled by the U.S. Attorney's Office in Arizona that was thrown out because of a prosecutor's flagrant dishonesty—misconduct that prompted an extraordinary rebuke from a federal appeals court. The defendant, Aurora Lopez-Avila, was arrested in December 2009 while trying to cross the border from Mexico in a 2000 Dodge Stratus carrying 10 kilograms of cocaine. Facing the possibility of life in prison, Lopez-Avila initially pleaded guilty in the hope of benefiting from an "acceptance of responsibility" sentence reduction. Later she withdrew her guilty plea and went to trial, arguing that she had driven the car under duress: She claimed a drug trafficker threatened to harm her family if she did not do as he said. Trying to undermine Lopez-Avila's defense, Assistant U.S. Attorney Jerry Albert read from a transcript of the hearing at which she had entered her guilty plea:

Magistrate Judge Jennifer Zipps: Has anyone threatened you?

Lopez-Avila: No.

Albert presented the exchange as evidence that Lopez-Avila had changed her story, at first denying that she was coerced into smuggling drugs, then claiming that she was. But as her defense attorney, Mark Willimann (pictured above), pointed out, the prosecutor had omitted some crucial words. The actual exchange was:

Zipps: Has anyone threatened you or forced you to plead guilty?

Lopez-Avila: No.

Confronted by this evidence that Albert had misrepresented the official record, U.S. District Judge Cindy Jorgenson declared a mistrial. But she rejected Willimann's argument that to avoid double jeopardy the case against Lopez-Avila should be dismissed with prejudice, which would bar a second prosecution. Last January the U.S. Court of Appeals for the 9th Circuit, while upholding Jorgenson's decision, strongly criticized Albert's conduct (citations omitted):

AUSA Jerry Albert represented to the trial court an altered version of the dialogue between the court and a witness at a hearing which had taken place in that same federal court. He presented a falsified version of an exchange as the true recitation of the transcript, until caught out by defense counsel. He did so to make it seem to the jury as if Lopez–Avila 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. It is hard to see—and, from our vantage point as an appellate tribunal, we do not see—how a prosecutor could interpret a magistrate's question, "Has anyone threatened you or forced you to plead guilty?", asked at a run-of-the-mill guilty plea hearing, to mean "Has anyone threatened you to commit this offense or forced you to plead guilty?"

After the mistrial was granted, AUSA Albert maintained that his reading was plausible. Perhaps Albert truly thought this, or perhaps he thought that consistently maintaining this position would minimize the possibility of any potential sanctions against him. We have no way of knowing, as it is not our task to conduct a thorough investigation of Albert's conduct for disciplinary purposes. We do note that Albert's name does not appear on the prosecution's brief in our court, and he did not appear at oral argument before us. But whatever Albert's motivation, it is worth reminding him and all federal prosecutors of Justice Sutherland's famous statement 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. 

Although the doctrine of absolute prosecutorial immunity means Albert cannot be sued for violating Lopez-Avila's constitutional rights, the court suggested three possible responses to his misconduct: Judge Jorgenson could dismiss the charges with prejudice (as a sanction rather than a constitutionally required remedy) or "discipline the prosecutor directly," and the Justice Department's Office of Professional Responsibility could investigate Albert. The Justice Department instead took Albert's side, asking the 9th Circuit to remove his name from its opinion. The court not only refused but added new language in February criticizing the department (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.

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. 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." Of course, as we have explained, Albert told the district court what he intended to say. Albert did not tell the court or opposing counsel that what he intended to say was not a full nor fair recitation of the magistrate's question to Lopez–Avila.

Finally, upon 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. 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.

In May, considering the case on remand, Judge Jorgenson dismissed the charges against Lopez-Avila, who is now free in Mexico after spending more than two years in jail. "This case is not simply about the mistake of one Assistant US Attorney, but rather the prosecuting office as a whole," Jorgenson wrote. Last November, at the hearing that preceded the 9th Circuit's decision, Judge Donald Walter remarked, "In eight years as U.S. attorney and 26 years on the trial bench, this is the worst I've ever seen from an assistant U.S. attorney." The Arizona Daily Star reported that Walter "was surprised to hear that day that Albert was still working as a federal prosecutor."

More on prosecutorial misconduct here.