Prosecutor Walks Despite Ethics Violation

The District of Columbia Court of Appeals has held that a criminal prosecutor violated ethical obligations of disclosure under Rule 3.8 but nonetheless concluded that no discipline should be imposed.

The non-disclosure involved notes taken at the hospital in a drive-by shooting case. The report noted that the victim stated that he could not identify the shooter.

The prosecutor was aware of the document but did not disclose it.

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 (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 report was not turned over by the prosecutor at the first trial, which resulted in a mistrial. He left the office and the case was reassigned.

The new prosecutor turned the statement over to the defense. The defendant was convicted at the second trial.

 The conclusion

while clear and convincing evidence has been presented that Kline violated Rule 3.8 when he failed to turn over the Boyd Hospital Statement to the defense prior to trial, we are mindful of the fact that our comment to Rule 3.8 (e) has created a great deal of confusion when it comes to a prosecutor’s disclosure obligations under Rule 3.8. Indeed, the ABA issued a formal opinion on this topic and interpreted our comment to mean that Brady materiality, in the "material-to-outcome" sense, was required to find an ethical violation of Rule 3.8 (e)...

When we add in the testimony of an AUSA responsible for training that the U.S. Attorney’s Office did not provide any separate training on a prosecutor’s Rule 3.8 (e) disclosure obligations, and the argument by Kline that he understood a prosecutor’s ethical obligations to be coextensive with his obligations under Brady and that no violation of Rule 3.8 (e) can be found independent of a Brady violation, we must conclude that his understanding was wrong but it was not unreasonable, and that no sanction is warranted.

In so concluding, we are also taking into consideration no companion violations were charged, no allegations of dishonesty were made, the respondent has a clean disciplinary record, and similar conduct will incur sanctions comparable to that recommended by the BPR in this case now that this court has provided clear guidance on the scope of a prosecutor’s disclosure obligations under Rule 3.8.

The Board on Professional Responsibility had proposed a 30-day suspension.

Update: interesting commentary here from White Collar Crime Professors blog. (Mike Frisch)