DOJ 'Streisands' Its Own Prosecutor By Requesting His Name Be Removed From An Unflattering Court Opinion
from the coverup:-ur-doing-it-wrong dept
In what is the latest (but certainly not the last) example of how wielding a bigass shovel only makes people more aware of your desperate burial attempts, a prosecutor for the Department of Justice was called out by name in a judicial bench slap for telling a "half-truth" in the courtroom:
Albert was criticized by the court for telling "a half-truth" during the trial - specifically, misrepresenting testimony from a prior proceeding while cross-examining the defendant at trial.Well, the DOJ wasn't too pleased with having their boy (Jerry Albert) being called out in the court's opinion and requested his name be replaced with the more innocuous this-could-be-anybody term "the prosecutor."
This misrepresentation resulted in a mistrial. The question presented on appeal was whether the prohibition on double jeopardy prohibited a retrial (a question that the panel decided in the government's favor).
[U]pon 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.Much like jabbing at a alligator with a stick, this only served to make the presiding Judge righteously pissed. Judge Carlos Bea went "all in" on his amended opinion, smacking around the DOJ for its presumptuousness:
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.Now, not only is Jerry Albert's name tied to such bad-for-business terms like "mistrial," "misconduct" and "misrepresentation," but by simply pressing this point, the Department of Justice turned a mere footnote of interest only to those directly involved in the trial into a rapidly expanding Google bomb that links the DOJ with these same bad-for-business terms, along with other unflattering terms like "coverup" and "benchslap."
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.
And Judge Bea wasn't done yet, adding this crucial (and damning) paragraph to the benchslap/Streisandstorm:
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. E.g., Press Release, U.S. Attorney's Office for the District of Arizona, "Northern Arizona Man Sentenced to Federal Prison for Arson," (January 31, 2012).... 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.Hell. Yes. Government representatives are always so quick to grab credit for anything tangentially related to their work, but good lord, they still seem to think that screwing up should somehow be rewarded with swift coverups and plausible deniability.