Hello and welcome to this JACPA Ethics Alert and blog which will discuss recent Federal 9th Circuit opinion which found that an Arizona federal prosecutor “presented a falsified version” of the defendant’s prior testimony in a drug smuggling trial to make it appear that she had previously lied under oath. The case is U.S. v. Lopez-Avila, No. 11-10013, D.C. No. 4:10-cr00035-CKJ-JCG-1 (Fed. 9th Cir. January 12, 2012). If you would like to have a copy of the opinion, please send an e-mail to email@example.com.
The defendant was charged with possession of cocaine with intent to distribute after the 9.7 kilograms of the drug was found in her car at the Nogales, Arizona border crossing in 2009. She pleaded guilty to the charge in February 2010 but withdrew the plea a month later, telling her attorney she had been “‘forced’ to commit the crime or she would face dire consequences.” The trial was held in late 2010 and she took the stand in her own defense. The prosecutor asked her about her prior testimony at the hearing on the initial guilty plea where the magistrate judge had asked “has anyone threatened you or forced you to plead guilty?” She answered no.
She later withdrew the plea and admitted committing the criminal acts and the defense rested on her claim to have been “forced” to commit it. The prosecutor wanted to question the defendant about the above prior testimony and defense counsel objected. After the prosecutor misquoted the actual testimony and did not advise the judge that he was altering the testimony in a side bar, the judge allowed the question and the prosecutor then asked her if she had replied “no” to the following question: “Has anyone threatened you?” She answered yes (and also admitted that she had lied even though she had not).
The prosecutor omitted the crucial part of the question which showed that it addressed whether the defendant was forced to plead guilty to the charges both at the side bar with the judge and in his cross examination. This altered version of the question appeared to contradict “the sole issue” in the case, which was whether the crime was committed under threat or duress. The defense lawyer later determined that the prosecutor had misquoted the magistrate judge’s question and moved for a mistrial, which was granted. The defense lawyer also moved to have the indictment be dismissed; which motion was denied; however, the trial court found that the prosecutor’s conduct was “deliberate” a “trial strategy” and was used to “attempt to convict” the defendant. The appeal to the 9th Circuit followed.
According to the 9th Circuit opinion, the prosecutor told the trial court that his misquote was “intentional but (he) claimed that the reading was a fair one”; however, it called it a “half-truth” and said that “(i)t 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 opinion upheld the trial court’s denial of the motion to dismiss the indictment based upon prosecutorial misconduct, but said that that “may not be the end of this matter.” The opinion said that the appeals court was not the proper venue to investigate a disciplinary matter and remanded to the district court to decide whether to dismiss the indictment and/or impose discipline on the prosecutor. In a clear intimation to the defense lawyer (or district court), the opinion also said that if a complaint is filed with the federal Office of Professional Responsibility, that entity could investigate and potentially impose discipline on the prosecutor.
Bottom line: From my vantage point, this appears to have been a somewhat egregious manipulation of a defendant’s prior testimony by an apparently “overzealous” prosecutor. Although he may have believed that his “reading was a fair one”, the prosecutor now faces potential disciplinary and other consequences. This illustrates how important it is in our judicial system for the prosecutor (and defense lawyer) to act ethically and fairly for a just result and not just try to win at whatever cost. This sense of fairness should apply in all areas of practice, not just criminal matters. As a former Bar and criminal prosecutor, I know that this can sometimes be very daunting, but I believe that it is also crucial to the proper administration of justice.
…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.
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