United States v. Ted Johnston

I respectfully dissent for the reasons I explained in the original panel opinion, reported at 664 F.2d 152. Although I think the majority’s solution to the knotty problem presented by this case is well-intentioned, it must lead either to the effective nullification of a long and firmly established ethical rule or to an unwarranted depletion of prosecutorial resources.

The solution proposed by the majority is to allow a government prosecutor to testify against a criminal defendant at a pre-trial suppression hearing. If the prosecutor then seeks to represent the government at trial, this course…