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Federal 9th Circuit says it won’t remove an Arizona federal prosecutor’s name from its opinion finding that he committed misconduct at trial

Hello and welcome to this JACPA Ethics Alert blog which is an update of my January 23, 2012 Ethics Alert and will discuss recent Federal 9th Circuit’s recent amended opinion which refused to remove a prosecutor’s name form an opinion finding that the prosecutor committed misconduct and criticized the U.S. Attorney’s Office for trying.  The amended opinion is U.S. v. Lopez-Avila, No. 11-10013, D.C. No. 4:10-cr00035-CKJ-JCG-1 (Fed. 9th Cir. Order and Amended Opinion February 14, 2012).

To refresh your memory, the underlying case involved an individual who was stopped while driving into Arizona from Mexico with more than 20 pounds of cocaine hidden in her car.  She pleaded guilty to drug trafficking but later claimed she had been forced to carry the drugs and was allowed to withdraw her plea and go to trial.   After she testified about the alleged threat, the assistant U.S. attorney asked her if she remembered testifying under oath to a federal magistrate at an earlier hearing.

The federal prosecutor (who was specifically named throughout the opinion), indicating that he was quoting the transcript, asked if she remembered the magistrate asking her, “Has anyone threatened you?” and she replied, “No.”  The prosecutor then said to her: “you were not threatened in this case … was that a lie?” and the defendant said it was; however, the magistrate had actually asked her: “Has anyone threatened you or forced you to plead guilty?”  The defense lawyer read the transcript of the hearing during a court recess and told the judge, who agreed that the prosecutor had distorted the question and declared a mistrial.

The primary issue before the 9th Circuit on appeal was whether double (former) jeopardy prevented the prosecution from retrying the defendant.  The opinion stated that it did not prevent a retrial since former jeopardy applies only after a prosecutor deliberately causes a mistrial, and not merely engages in manipulation to try to win the case.  The opinion also said that the trial judge would have the option of dismissing the case if the prosecution that would be an appropriate remedy for the prosecutor’s misconduct.

After the 9th Circuit issued its January 12, 2012 opinion describing a federal prosecutor’s alleged misconduct which resulted in a mistrial of a drug-trafficking trial in Tucson, Arizona, the U.S. Attorney’s office filed a motion requesting that the court to remove the prosecutor’s name from the published decision and substitute the word “prosecutor”.

The amended opinion added language to the initial opinion addressing this request and criticized the U.S. Attorney’s Office with some scathing language stating: “(w)hen 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…we cannot find a single hint of appreciation of the seriousness of the misconduct. …instead, the government attempts to shift blame” to the defense lawyer in the case.”

The amended opinion also states: “(the prosecutor’s) job is not just to win, but to win fairly, staying within the rules.” Finally, the amended opinion also noted that the U.S. Attorney’s Office in Arizona regularly issues press releases naming prosecutors who win important cases and “(i)f federal prosecutors receive public credit for their good works-as they should-they should not be able to hide behind anonymity when they make serious mistakes.”

Bottom line:  Ouch.  It appears that the U.S. Attorney’s Office’s attempt to shield the federal prosecutor from being specifically identified as having committed misconduct before the completion of an ethics investigation backfired and created more negative media attention than the initial opinion.  I am sure that this is much to the chagrin of the prosecutor whose alleged misconduct was featured in the original opinion as well as those in the U.S. Attorney’s Office who believed (and may still believe) that this was a good idea.

…be careful out there!

            As always, if you have any questions about this Ethics Alert or need assistance, analysis, and guidance regarding these or any other ethics, risk management, or other issues, please do not hesitate to contact me.





My law firm focuses on review, analysis, and interpretation of the Rules Regulating The Florida Bar, advice and representation of lawyers in Bar disciplinary matters, defense of applicants for admission to The Florida Bar before the Board of Bar Examiners, defense of all Florida licensed professionals in discipline and admission matters before all state agencies and boards, expert ethics opinions, and practice management for lawyers and law firms.  If there is a lawyer or other Florida professional license involved, I can defend the complaint or help you get your license.

If you have any questions or comments, please call me at (727) 799-1688 or e-mail me at [email protected].  You can find my law firm on the web at In addition to handling individual cases, matters, problems and issues for my clients, I also am on retainer to provide ethics advice to numerous lawyers and law firms throughout the state of Florida.  I also provide legal assistance and advice to numerous individuals and non-legal entities to help insure compliance with the law and rules related to UPL and other issues.

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

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