Thursday, August 1, 2013

Fight Brewing In D.C. Over Prosecutorial Misconduct

The District of Columbia Board on Professional Responsibility has recommended a suspension of 30 days of an Assistant United States Attorney who had failed to provide a witness statement to the defense in a case involving a drive-by shooting.

The board rejected a hearing committee's proposed sanction of public censure, which was the sanction sought by Bar Counsel.

The board sustained the hearing committee's finding that the non-disclosed information was material but further opined that materiality is not an element of a Rule 3.8(e) violation:

The plain meaning of Rule 3.8(e) is thus consistent with the drafting history of the rule and the case law. The Board thus rejects the interpretation of Respondent and Amicus [the United States Attorneys Office], that the obligations of Rule 3.8(e) are co-extensive with Brady and instead finds that Respondent had an obligation to disclose the Boyd Hospital Statement, even if it was non-material, because he reasonably should have known that it "tend[ed] to negate the guilt of [the defendant]."

The board noted that the Court of Appeals has observed that matters where the sanction exceeds that sought by Bar Counsel "should be the exception, not the norm" but found this to be such a case:

Respondent's violation of Rule 3.8(e) was blatant. He failed to disclose exculpatory information that was obviously material. That failure likely impacted the result of the first Shelton trial and may have influenced the subsequent guilty verdict at the second trial. A suspension will serve as a more effective deterrent than the public censure recommended by Bar Counsel and the Hearing Committee and is an appropriate measue of the seriousness of Respondent's misconduct.

Last year, the Court of Appeals disbarred a former AUSA for Brady and other violations. Prior to that, public discipline had never been imposed in the District of Columbia for Brady-type misconduct.

 There are thus likely legions of cases that involve comparable conduct (i.e. reversals for Brady violations) over the past three decades that resulted in no bar discipline.

Here, the trial conducted by this AUSA resulted in a mistrial. The statement was disclosed by another AUSA at a second trial and the conviction at that trial was eventually affirmed.The case is thus unlike prior Brady-violation cases that have led to reversal.

I doubt that the "get-tough on prosecutors"  policy articulated here will be adopted by the court without a fight. Having taken the position that a suspension is not appropriate, I wonder what position Bar Counsel will take before the court.

Stay tuned.

The case is in In re Andrew J. Kline, No. 11-BD- 007, and is available at this link. (Mike Frisch)

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