October 10, 2012
In the News & Around the Blogosphere
Debra Cassens Weiss, ABA Jrl Law News Now, Acquitted In-House Lawyer Warns of the ‘Criminalization’ of Law Practice
Lynn A. Neils joins Covington- see here
Tresa Baldes & Jim Schaefer, Detroit Free Press, In public corruption trial, Kilpatrick's lawyer says government witness is a liar, gambler, and a tax cheat
Patricia Hurtado, Bloomberg, Rajaratnam Case Cooperator Goel Gets Two Years Probation
Michael J. De La Merced & Peter Lattman, NYTimes, Former Programmer Demands That Goldman Cover His Legal Fees
Mike Scarcella, BLT Blog, Former House Official Wants Public Corruption Conviction Overturned (hat tip to Ivan Dominguez)
October 9, 2012
Guts and the DC Bar Counsel: The Case of Andrew J. Kline
We all make mistakes. We are all flawed. It is a relatively rare prosecutor who has not committed, overseen, or sufferred on his watch some kind of Brady error somewhere along the way. Usually it is unintentional. Prosecutors are not naturally inclined or oriented to sniff out Brady materials. (They are paid to win.) And case law is clear. Brady error occurs irrespective of prosecutorial knowledge or intent. Indeed, defense attorneys are trained to make Brady arguments that do not impugn the integrity of prosecutors. This is because most judges, particularly federal judges, do not like to see personal attacks on prosecutors.
But then there are the egregious cases-- blatantly obvious examples of Brady/Giglio materials that should have been, but were not, disclosed to the defense. What is the bar to do when confronted with such cases? One thing is clear. Congress to date has not had the guts to deal with this problem. The Department of Justice lacks both the guts and inclination to do anything about it. Do you doubt me for one moment? You only have to look at the pathetic administrative punishment meted out to the Ted Stevens line prosecutors, and the complete whitewash of their superiors. You only have to search the DOJ website for DOJ-OPR's Report on the Stevens debacle. Hint--you won't find it there.
What is the solution to the persistent blight of jaw-droppingly obvious Brady/Giglio violations? One solution is to bring ethical complaints against purportedly miscreant prosecutors in appropriate instances. Which brings us to the case of former DC AUSA Andrew J. Kline, currently making its way through the bar disciplinary process.The BLT has posted on the Kline case here and here. DC Bar Counsel wants Kline censured for an alleged Brady/Giglio violation that also runs afoul, according to Bar Counsel, of the arguably broader Rule 3.8(e) of the DC Rules of Professional Conduct. Rule 3.8(e) states in pertinent part that: "The prosecutor in a criminal case shall not . . . intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused . . . ."
The defense bar often talks about using various state versions of Rule 3.8(e) in tandem with Brady/Giglio, in part to get around the Brady/Giglio materiality problem. Here is a Bar Counsel actually doing something about it. Kline vigorously denies that the withheld information was material or that he intentionally engaged in any wrongdoing.
What information did Kline actually withhold? He was prosecuting Arnell Shelton for the shooting of Christopher Boyd. Shelton had filed an alibi notice and "the reliability of the government's identification witnesses" was the principal issue at the 2002 trial, according to the Report and Recommendation of Hearing Committee Number Nine ("Report and Recommendation"). Kline spoke with Metropolitan Police Department Officer Edward Woodward in preparation for trial. Kline took contemporaneous notes. Woodward was the first officer at the scene of the crime and spoke to victim Boyd at the hospital shortly after the shooting.
According to the Report and Recommendation, Kline's notes of his conversation with Woodward were, in pertinent part, as follows: "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 …"
At trial Boyd identified Shelton as the shooter. According to Bar Counsel, Kline never disclosed Boyd's hospital statement to the defense despite a specific Brady/Giglio request for impeachment material. The other identification witnesses were weak and/or impeachable.
The case ended in a hung jury mistrial and the alleged Brady material (that is, Boyd's hospital statement to Woodward) was not revealed to the defense until literally the eve of the second trial, even though DC-OUSA prosecutors and supervisors had known about it for some time. When the trial court found out about the hospital statement and that it had not been disclosed before the first trial because Kline did not consider it exculpatory, the court was thunderstruck: "I don’t see how any prosecutor could take that position. . . I don’t see how any prosecutor anywhere in any state in the country, could say I don’t have to turn that over because I think I know why he said that." See DC Bar Counsel's corrected Brief at 8.
The court offered defense counsel a continuance, but she elected to go to trial as her client was then in jail. The second trial ended in Shelton's conviction.
Kline's position now is that the hospital statement was not material, hence not Brady, because Boyd was in pain and being treated for a gunshot wound at the time and because Shelton was ultimately convicted upon retrial.
Bar Counsel's position is that the withheld hospital statement was material and exculpatory and therefore Brady material, but that even if it was not Brady material, the failure to turn it over violated Rule 3.8(e). Bar Counsel seeks a public censure of Mr. Kline.
DOJ argues, via the DC U.S. Attorney's Office amicus brief, that DC Rule 3.8(e) is no broader than Brady. This is not a surprising or frivolous argument. What is surprising is DOJ's position that Boyd's withheld hospital statement was not material under Brady. DOJ is taking this position at the same time it is trying to convince Congress and the Courts that it can be trusted to discipline and police prosecutors for discovery violations. Is anybody watching?
A further subject for investigation is the decision of DC-OUSA supervisors to withhold the Boyd hospital statement until the evening before the retrial. Let's see if DOJ takes the lead on that.
DC Bar Counsel and Hearing Committee Nine should be commended for addressing this issue. Oral Argument is scheduled to take place before the District of Columbia Court of Appeals Board on Professional Responsibility on October 11, 2012, at 2:00 PM in Courtroom II of the Historic Courthouse of the District of Columbia Court of Appeals, located at 430 E Street NW.
October 7, 2012
Defense Witness Immunity & Global Tech - Important Issues on Cert
An interesting issue is presented to the Supreme Court on cert - defense witness immunity. The case of Walton v. the United States presents an issue that has plagued many a defense counsel - what do you do when you have a critical defense witness who will not testify without immunity. The government has the ability to give a witness immunity and often they do so in criminal cases to secure cooperation for the prosecution. But shouldn't the defense also be allowed this immunity when the evidence that would be offered is exculpatory to the defendant? This cert petition presents strong arguments showing the differing views among the circuits on defense witness immunity.
The Walton Petition also has a post-Global Tech issue. (for background on Global Tech, see here and here). The obvious is argued - Global Tech applies to criminal cases. The Court used criminal law doctrine in deciding the case, so of course it should apply to criminal law decisions. I am covering Global Tech in both criminal law and white collar crime classes because it summarizes the law on willful blindness. If the Court was using this criminal standard for a civil case and remarking that this is how it gets handled criminally, therefore, of course, it must be the appropriate standard for a criminal case. Even in his dissent, Justice Kennedy notes that "[t]he Court appears to endorse the willful blindness doctrine here for all federal criminal cases involving knowledge." He didn't like that they were doing this, but it was pretty clear that this is what they did. This cert petition, if granted, will send this message loudly and clearly to the Fifth Circuit.
Filing a separate cert petition is James Brooks. Argued here by attorneys Gerald H. Goldstein and Cynthia Eve Hujar Orr are that "[t]he jury instructions here not only failed to require that Brooks take deliberate steps to blind himself to the illegal purpose of his conduct, but additionally instructed the jury that he did not need to 'know' or even suspect that his conduct was unlawful."Global Tech clearly requires both.
Petition for Cert for Brookes - Download Brooks Petition for Writ of Certiorari