IN RE ANDREW J. KLINE, RESPONDENT. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 441845)
Argued: May 22, 2014.
Seth A. Rosenthal for respondent.
Elizabeth A. Herman, Deputy Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, Jennifer P. Lyman, Senior Assistant Bar Counsel, and Jelani C. Lowery, Senior Staff Attorney, were on the brief, for petitioner.
Elizabeth J. Branda, Executive Attorney, Board on Professional Responsibility, for petitioner.
James Klein and Samia Fam, Public Defender Service, filed a brief as amicus curiae.
Ronald C. Machen Jr., United States Attorney at the time the brief was filed, Elizabeth Trosman and Ann K. H. Simon, Assistant United Stated Attorneys, Jerri U. Dunston, Director, United States Department of Justice, and Ann C. Brickley, Attorney Advisor, Professional Responsibility Advisory Office, United States Department of Justice, filed a brief as amicus curiae.
Before WASHINGTON, Chief Judge, and GLICKMAN and THOMPSON, Associate Judges.
ON REPORT AND RECOMMENDATION OF
THE BOARD ON PROFESSIONAL RESPONSIBILITY
Washington, Chief Judge :
This matter comes before us upon the Report and Recommendation of the Board on Professional Responsibility (" the Board" ). The Board recommended that a 30-day suspension be given to Andrew J. Kline (" Kline" ) after finding that Kline violated Rule 3.8 (e) of the District of Columbia Rules of Professional Conduct (" Rule 3.8 (e)" ). Rule 3.8 (e) prohibits a prosecutor in a criminal case from intentionally failing to disclose to the defense any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused. Bar Counsel takes no exception to the Report and Recommendation of the Board. Kline argued, inter alia, that he did not violate Rule 3.8 (e) because his ethical duties are coextensive with the duties imposed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Specifically, Kline relies on the " material-to-outcome" standard recognized by the United States Supreme Court in Brady 's progeny to argue that a prosecutor cannot violate Rule 3.8 (e) unless there is a reasonable probability that the information or evidence withheld made a difference in the outcome of the trial. We hold that Kline's interpretation of Rule 3.8 (e), which incorporates a retrospective materiality analysis, is not the appropriate test for determining whether a prosecutor has violated Rule 3.8 (e). We also hold that Bar Counsel proved by clear and convincing evidence that Kline intentionally failed to disclose information in violation of the rule. However, we conclude that given the confusion regarding the correct interpretation of a prosecutor's obligations under the rule, sanctioning Kline would be unwarranted.
The Board adopted the following findings of fact: In 2001 and 2002, Kline was an Assistant United States Attorney (" AUSA" ) in Washington, D.C., assigned to prosecute violent crimes, including a shooting incident involving Arnell Shelton (" Shelton" ). Shelton was charged with felony assault in the drive-by shooting of Christopher Boyd (" Boyd" ). Prior to trial, Shelton's attorney filed an alibi notice. Thus, a principal issue at trial was the
reliability of the government's eyewitnesses.
In the course of preparing the Shelton case, Kline spoke to D.C. Metropolitan Police Department (" MPD" ) Officer Edward Woodward (" Officer Woodward" ), the first officer at the crime scene. The Hearing Committee found that Officer Woodward told Kline that he first interviewed Boyd at Greater Southeast Hospital shortly after the shooting, and that Boyd told him that he did not know who had shot him. Kline took notes during his conversation with Officer Woodward, and those notes included the following information:
Boyd told officer at hospital that he did not know who shot him--appeared maybe to not want to cooperate at the time. He was in pain and this officer had arrested him for possession of a machine gun. . . .
There is an arrow pointing to this note.
Shelton's attorney, Carlos Venegas of the District's Public Defender Service (" PDS" ), requested discovery pursuant to Brady and specifically sought " prior inconsistent [or] non-corroborative" statements by witnesses and " any other information, which . . . impeaches a witness' testimony." Kline answered the Brady request by informing Mr. Venegas that the government was not " in possession of any truly exculpatory information."
PDS attorney Anna Rodriques subsequently assumed representation of Shelton. She testified that Kline never told her of the Boyd Hospital Statement. Her testimony was corroborated by documentary evidence, including Kline's supplemental discovery responses that disclosed other potentially exculpatory evidence.
Right before the jury was selected, Attorney Rodriques raised a separate Brady concern. Kline responded that he was " not sure how one could conjure up a Brady argument in this case since there was no doubt that Shelton was the shooter." The trial court responded:
Because you are sure [sic] you have the guy, no one could conjure up a Brady argument? . . . That is why Brady doesn't leave it up to the prosecutor, for that very reason. You are always sure you have got the right guy or you wouldn't be prosecuting.
Kline assured the trial court that he was " especially careful when it came to Brady evidence." However, Kline still had not disclosed the substance of the Boyd Hospital Statement either directly or indirectly.
The first trial was held between March 5 and 7, 2002. The government's case hinged on the ability of the three eyewitnesses to the shooting, Andrew Durham, Christopher Boyd, and Boyd's mother, Cassandra Williams, to credibly identify Shelton as the assailant. Shelton's wife testified, as an alibi witness, that he was home at the time of the shooting. The jury was unable to reach a verdict, and a mistrial was declared.
Soon thereafter, Kline left the United States Attorney's Office (" USAO" ) and the new AUSA assigned to prosecute the case forwarded the note pertaining to the Boyd Hospital Statement in Kline's file. A letter to the defense was prepared disclosing the information but before it could be mailed, that attorney left the office due to a family emergency and did not return to the case. When the case was subsequently reassigned, the new prosecutor, AUSA Wanda Dixon, disclosed the Boyd Hospital ...