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Federal court panel questions conduct of prosecutor in Arizona

WASHINGTON – A U.S. appeals court panel criticized a Tucson federal prosecutor who it said “presented a falsified version” of testimony in a drug-smuggling case to make the defendant look as if she had lied on the stand.

In a published opinion Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals said the “win at all costs” behavior of Assistant U.S. Attorney Jerry Albert crossed a line, and that it would take steps to make sure his actions were “properly investigated.”

Albert did not appear before the appeals panel, but it quoted him as telling the lower court that his misquoting “had been intentional but claimed that the reading was a fair one.”

Aurora Lopez-Avila was charged in 2009 with possession of cocaine with intent to distribute after the drug was found in her car at the Nogales border crossing. She pleaded guilty in February 2010 but withdrew the plea a month later, telling her attorney she had been “‘forced’ to commit this offense or she would face dire consequences,” the court wrote.

Her case went to trial in late 2010 and she took the stand in her own defense after two days of testimony. At that point, Albert asked about her testimony from a hearing on the later-withdrawn guilty plea, when the magistrate judge had asked “has anyone threatened you or forced you to plead guilty?” She had said no.

But when he read those statements back to her in late 2010, Albert left off the part about pleading guilty. Instead, he asked if she had replied “no” to the question, “Has anyone threatened you?” – apparently contradicting her trial defense that the crime was committed under threat.

When her attorney saw that Albert had misquoted the magistrate judge’s question, he asked for a mistrial, which was quickly granted. He also asked that the indictment against Lopez-Avila be dismissed but that was rejected, sparking the appeal to the 9th Circuit.

The appellate judges upheld the district court’s refusal to dismiss the indictment on double-jeopardy grounds, but said that that “may not be the end of this matter.”

While the court said repeatedly that it was not the proper venue for a disciplinary action, it said it would “take several steps to ensure that … Albert’s actions are properly investigated.”

It rejected Albert’s statement that his reading of the transcript “was a fair one.” The court called it a “half-truth.”

“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?’” the judges wrote.

Albert is still in the U.S. Attorney’s Office in Tucson, but calls to him there were referred to administrators.

Rachel Hernandez, executive assistant U.S. attorney for Arizona, said in an email that the office is reviewing the opinion to determine its options, but would not comment further.

The appeals court ended its opinion by noting that anyone can file a complaint with the Justice Department’s Office of Professional Responsibility, going so far as to give the office’s web address. It also said the district court might dismiss the indictment against Lopez-Avila on other grounds, if someone asked.

“Actually, I think the 9th Circuit is giving a roadmap of what I have to do next,” said Lopez-Avila’s attorney, Mark Williman, who said he will again ask for dismissal of the indictment.

The Justice Department declined to say whether any complaint had been filed with the Office of Professional Responsibility in the case.

Larry Hammond, an attorney with the Osborn Maledon law firm in Phoenix, said it was “quite unusual that a court would write something like this and identify the assistant U.S. attorney.” But he applauded the court’s action.

“I think it’s not only proper but I think it’s necessary and I’m sorry that courts don’t do it as frequently,” he said.

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