Monday, May 7, 2012



Citing misconduct by prosecutor, judge tosses US drug case
Tim Steller Arizona Daily Star |
Posted: Friday, May 4, 2012 12:00 am | Comments

A Tucson federal judge has dismissed a drug-smuggling case because of
a prosecutor's misconduct, saying she wants to ensure that the U.S.
Attorney's Office takes the misbehavior seriously.
U.S. District Judge Cindy Jorgenson threw out the case against Aurora
Lopez-Avila, who was arrested in Nogales on Dec. 8, 2009.
"This case is not simply about the mistake of one AUSA (assistant
U.S. attorney), but rather the prosecuting office as a whole,"
Jorgenson wrote in her ruling last Friday.
Quoting an earlier case, she wrote, "The office has failed to
recognize that 'the prosecution's misconduct is an affront to the
integrity of our system of justice.'"
Jorgenson's decision followed a February critique by a 9th U.S.
Circuit Court of Appeals judge, who said he did not find a Tucson
prosecutor showed enough "appreciation of the seriousness of the
In an email Wednesday, U.S. Attorney's Office spokesman Bill Solomon
said, "The Court's Order is an important reminder of a prosecutor's
ethical and constitutional obligations, as well as of the virtues of
civility and professionalism. We regularly require professionalism
training for our AUSAs (most recently in March 2012), and we will
continue to reinforce in our prosecutors the overriding goals of
fairness and integrity in the processing of criminal cases."
The case began like many others, when port inspectors in Nogales
found about 23 pounds of cocaine in Lopez-Avila's car. It turned
unusual when Lopez-Avila first pleaded guilty in February 2010, then
rescinded the plea and went to trial in November 2010, claiming she
had been forced by threat to take the car across.
At her change-of-plea hearing, then-Magistrate Judge Jennifer Zipps
asked, "Ms. Lopez, has anyone threatened you or forced you to plead
guilty?" Lopez-Avila answered "No."
Citing that transcript later at trial, Assistant U.S. Attorney Jerry
Albert stated the question as "Ms. Lopez, has anybody threatened
you?" He went on to read her answer, "No," trying to raise doubts
about her defense.
In January, the 9th Circuit panel criticized Albert's conduct, but
the U.S. Attorney's Office came to his defense. Assistant U.S.
Attorney Robert Miskell noted Albert is already being investigated by
the Justice Department's Office of Professional Responsibility and
Arizona's State Bar. He asked the 9th Circuit to amend its ruling by
removing Albert's name and replacing it with the word "prosecutor,"
arguing that naming him amounted to a sanction on its own.
Denying the request, Circuit Judge Carlos Bea wrote: "When 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. Yet, we cannot find a
single hint of appreciation of the seriousness of the misconduct
within the pages of the government's brief on appeal," Bea wrote.
In March, defense attorney Mark Willimann asked that the case be
dismissed. At a hearing April 9, Albert testified and apologized for
his conduct. But Jorgenson decided to send a message.
"The question now is not whether AUSA Albert will ever engage in the
same conduct again, but rather what is the U.S. Attorney's office
doing to ensure that none of their attorneys will do so," Jorgensen
wrote. "The Court finds that dismissal is appropriate in order to
highlight the seriousness of this matter and to hopefully prevent any

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