In re Kline

• Decision Date: 09 April 2015
• Docket Number: No. 13–BG–851.,13–BG–851.
• Citation: 113 A.3d 202
• Parties: In re Andrew J. KLINE, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 441845).
• Court: D.C. Court of Appeals

113 A.3d 202

In re Andrew J. KLINE, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 441845).

No. 13–BG–851.

District of Columbia Court of Appeals.

Argued May 22, 2014.

Decided April 9, 2015.

Seth A. Rosenthal, Washington, DC, 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.

Opinion

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.

I.

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.¹

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 Statement to the defense. A new trial was held and despite the disclosure of the Boyd Hospital Statement, the defendant was convicted and his conviction was upheld on appeal.

Because Kline failed to disclose the Boyd Hospital Statement, Bar Counsel charged him with violating Rule 3.8(e). Kline, while hedging on whether he in fact remembered that this evidence was in his file, stated that he did not believe he had an obligation to turn it over because he did not believe it was Brady evidence. He also argued that the gist of the statement had been included in police reports that had been turned over to the defense. He stated further that he believed his disclosure obligation was only to turn over evidence that fell within the purview of Brady —i.e. evidence that would prove to be material to the outcome of the trial. Additionally, Kline presented the testimony of an AUSA responsible for training, who testified that he was in charge of “Brady ” training at the USAO at the time and while disclosure would have been prudent, the training Kline received from the U.S. Attorney's Office on its Brady obligations would not have put [Kline] on notice that Rule 3.8(e) required him to disclose information that was not “material” in the Brady sense.

The Board concluded that Kline violated Rule 3.8(e) by intentionally withholding the Boyd Hospital Statement and recommended a sanction of 30 days suspension. Kline timely appealed.

II.

“The discipline of attorneys, including determination of appropriate sanctions, is the responsibility of this court.” In re Howes, 39 A.3d 1, 12–13 as amended nunc pro tunc, 52 A.3d 1 (D.C.2012) (citation omitted). “Though we review de novo the Board's legal conclusions, we must accept the Board's evidentiary findings if they are supported by substantial evidence in the record.” Id. (citation and footnote omitted).

The question of whether and, if so, when a prosecutor's ethical and constitutional duties to disclose potentially exculpatory information to a defendant intersect continues to be a topic of much debate throughout the country. It is unquestionable, however, that constitutional protections in the criminal context serve a fundamentally different purpose than disciplinary proceedings in the ethical context. See, e.g., United States v. Agurs, 427 U.S. 97, 110, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (noting a distinction between the character of the evidence and the character of the prosecutor). For the first time, this court must address whether the ethical disclosure obligations imposed on prosecutors by Rule 3.8(e) require disclosure of information that may later be deemed “immaterial” to the outcome of the trial.

Kline argues that Rule 3.8(e) of the District of Columbia Rules of Professional Conduct, governing the ethical obligations of prosecutors to disclose evidence tending to negate the guilt or mitigate the offense of the accused, must be read as co-extensive with a defendant's constitutional right to a fair trial as contemplated by the Supreme Court in Brady, and its progeny. Thus, Kline argues that the rule necessarily contains a “materiality” component, which cannot be determined until after trial has been concluded, and the merits of any appeal have been resolved. More specifically, Kline argues that there can be no violation of Rule 3.8(e) unless and until it has been determined that the failure of the government to disclose any potentially exculpatory information has sufficiently impacted the fairness of the trial to a degree sufficient to constitute a Brady ...