Court Will Not Name Reprimanded Prosecutor : Justice: Appeals judges say misstatements to jury tainted a drug case. The ruling is sharply critical of the U.S. attorney’s office, but it will not single out the offender.

In response to a plea from U.S. Atty. Terree A. Bowers, a federal appeals court has removed the name of a young prosecutor from a decision accusing him of a major ethical violation in a drug case.

But the U.S. 9th Circuit Court of Appeals rejected the government’s request to soften language in the ruling, which criticized the U.S. attorney’s office so severely that the case has been reviewed by Atty. Gen. Janet Reno.

“The prosecutor’s job isn’t just to win, but to win fairly, staying well within the rules,” wrote Judge Alex Kozinski in an Aug. 4 decision that reversed the convictions of two people for selling $100,000 worth of heroin to an undercover drug enforcement agent.

“The government here has strayed from this responsibility,” Kozinski added.

In a unanimous decision, the appeals court said the guilty verdicts were tainted by Assistant U.S. Atty. Jeffrey Sinek’s misstatements to the jury and denied the defendants due process of law.

At a critical moment during the 1991 trial, a defense lawyer tried to persuade jurors that because a key player in the drug deal--Krikor Nourian--had not testified, it could be assumed that his testimony would damage the government’s case.

The prosecutor replied that jurors should make no such inference. He said that although Nourian had been arrested, he had a constitutional right to remain silent and that the government could not force him to talk.

That was untrue, according to the appeals court decision, because Nourian was cooperating with the government and was available to testify if the government requested it. His statement deprived the defense of a potentially powerful argument to the jury, Kozinski wrote.

“What we find most troubling about this case is not the assistant United States attorney’s initial transgression, but that he seemed to be totally unaware that he had done anything at all wrong, and that there was no one in the United States attorney’s office to set him straight,” the judge added.

In September, Bowers asked the appeals court to erase, or at least soften, some of the most stinging criticism. But that plea was spurned by Kozinski and two other conservative judges.

However, the judges removed the prosecutor’s name after Bowers’ contended in a brief that it would do “irreparable harm” to the prosecutor’s career to identify him.

Kozinski did not state in the new opinion, released this week, why he had removed the prosecutor’s name or why he had declined to soften any language criticizing the U.S. attorney’s office.

The appeals court sent the case back to trial Judge Edward Rafeedie, asking him to determine if the government’s misconduct was so bad that the case should be dismissed or if the two defendants should be retried.

Lawyer Ronald J. Nessim, who represented defendant Chake G. Kojayan, said he was pleased that the appeals court had not altered the substance of the ruling. “The opinion . . . will serve as a useful guide and precedent to both prosecutors and defense attorneys in the years to come,” he said.

Nessim said his client, who has been incarcerated for 2 1/2 years, continues to maintain that she is not guilty and has expressed hope that the U.S. attorney would not attempt to retry her.

“If the government decides to proceed, Mrs. Kojayan intends to bring a motion to dismiss on the basis of the government’s misconduct,” Nessim said.

Bowers issued a statement that he appreciated “the depersonalization of the circuit’s opinion,” which deleted his name as well as that of the prosecutor. But he continued to maintain that there had been “an unfortunate misunderstanding as to what occurred during the trial.”

He also said “it was unfair” for the appeals court to draw broad conclusions about the office’s supervisory structure and ethical standards because of one incident.