The 9th U.S. Circuit Court of Appeals is urging in a new opinion that a Tucson-based federal prosecutor be investigated for a deliberate misstatement in a December 2010 drug-smuggling trial.
While cross-examining defendant Aurora Lopez-Avila, Assistant U.S. Attorney Jerry Albert re-read testimony by Lopez-Avila at an earlier hearing.
But Albert's rereading was a "half-truth," says the Thursday appeals court opinion, written by Circuit Judge Carlos Bea.
During the Nov. 14 appeals court hearing in the case, Judge Donald Walter expressed shock at Albert's behavior.
"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," Walter said.
Walter also was surprised to hear that day that Albert was still working as a federal prosecutor.
The case began Dec. 8 2009, when Lopez-Avila drove a 2000 Dodge Stratus into a port of entry in Nogales.
Inspectors found about 22 pounds of cocaine in the back seat. On Feb. 24, 2010, Lopez-Avila pleaded guilty to possession of cocaine with intent to distribute.
In that hearing, Magistrate Judge Jennifer Guerin (now a U.S. district judge) asked, "Ms. Lopez, has anyone threatened you or forced you to plead guilty?" Lopez-Avila answered "No."
But later, Lopez-Avila, who owns businesses in Nogales, Sonora, told a federal probation officer that she was threatened into taking the car across the border; she was allowed to withdraw her guilty plea and go to trial.
At trial in December 2010, the question of whether she was forced to drive the car to the border was key, and Albert questioned Lopez-Avila about her testimony at the change-of-plea hearing.
Reading through the transcript of that hearing, Albert shortened the question that Guerin had asked the defendant, quoting it as, "Ms. Lopez, has anybody threatened you?" He went on to read Lopez-Avila's answer to that question, "No," in an effort to question her truthfulness about being threatened.
When defense attorney Mark Williman discovered Albert's misreading of the earlier questions, he asked for a mistrial, and the trial judge, U.S. District Judge Cindy Jorgenson, agreed.
Williman went on to ask that the entire case against Lopez-Avila be dismissed, but Jorgenson declined, and Williman appealed that decision.
The appeals court agreed with Jorgenson's decision, saying the case against Lopez-Avila did not need to be entirely dismissed.
But the opinion took special note of Albert's behavior, suggesting either the trial judge or the Justice Department's Office of Professional Responsibility should look into it.
Williman said in an email he's ethically obligated to report Albert's conduct to that office and to the State Bar of Arizona, but he was sympathetic toward Albert, a longtime prosecutor in Tucson.
"To have the 9th Circuit characterize Mr. Albert the way they did was brutal," he said. "This is a sad day for a man who has dedicated his life as a public servant."
Contact reporter Tim Steller at 807-8427 or email@example.com