Prosecutors must disclose exculpatory evidence or risk discipline: Materiality is not a relevant consideration under DC ethics rule

In re Andrew Kline, No. 13-BG-851 (decided April 9, 2015).

Players:  Chief Judge Washington, Associate Judges Glickman and Thompson.  Opinion by Chief Judge Washington.  Seth A. Rosenthal for Mr. Kline.  PDS as amicus curiae. 

  

Facts:  The Board on Professional Responsibility recommended that former Assistant United States Attorney Andrew Kline be suspended for 30 days from the practice of law after finding that he had violated Rule 3.8(e) of the District of Columbia Rules of Professional Conduct.  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.  Mr. Kline had been the prosecutor in a felony assault case where Arnell Shelton was charged with the drive-by shooting of Christopher Boyd.   In the course of preparing the case, Mr. Kline spoke with MPD Officer Edward Woodward, who informed him that when he first interviewed Mr. Boyd at the hospital shortly after the shooting, Mr. Boyd told him that he did not know who shot him.  Mr. Boyd subsequently identified Mr. Shelton as his shooter.

Mr. Kline took notes to memorialize the conversation at the hospital but never disclosed the information to the defense – despite specific requests for prior inconsistent or non-corroborative statements by witnesses as well as for any other information that impeaches a witness’s testimony, and despite the fact that the defense gave a pre-trial alibi notice so that the reliability of the government’s eyewitnesses was obviously going to be a contested issue at trial.  The trial prosecuted by Mr. Kline ended with a hung jury and a mistrial.  Soon thereafter, Mr. Kline left the office.  The case was reassigned twice and both subsequent prosecutors flagged the information as necessary to disclose to the defense.  (The second prosecutor left the office due to a family emergency and the letter with the information was never mailed out; the third prosecutor disclosed it.)  Mr. Shelton was convicted at the second trial.  

Mr. Kline defended against the ethics violation by stating that he believed his disclosure obligation was only to turn over evidence that would prove to be material to the outcome of the trial – that is, evidence that would ultimately give rise to a reversal of a conviction under Brady and its progeny.  In his eyes, the Boyd hospital statement did not merit disclosure under that standard.  

Issue:  Whether the ethical disclosure obligation imposed on prosecutors by Rule 3.8(e) is co-extensive with a defendant’s right to a fair trial as contemplated by the Supreme Court in Brady and its progeny, or whether the ethical obligation requires a prosecutor to disclose evidence that tends to negate the guilt of the accused or mitigate the offense whether or not the information may later be deemed material to the outcome of the trial.

   

Held:  “Rule 3.8(e) requires a prosecutor to disclose all potentially exculpatory information in his or her possession regardless of whether that information would meet the materiality requirements of Bagley, Kyles, and their progeny.”  

As to sanctions:  While the Court concluded that Kline violated Rule 3.8(e) by intentionally witholding the Boyd hospital statement, it concluded that a 30-day suspension was inappropriate in Kline’s case because of the confusion generated by the comment to Rule 3.8(e) which some – including the ABA –  had read to suggest that a finding that the information withheld was “material to the outcome” of the trial was necessary to a determination that Rule 3.8(e) had been violated.  Because Kline’s understanding of the rule’s requirements was “wrong but it was not unreasonable,” the Court concluded that no sanction was warranted. 

Of Note:

• While much of the Court’s opinion addresses a prosecutor’s ethical obligation and therefore does not create rights enforceable by a criminal defendant, in one paragraph of the opinion the Court emphasizes that a prosecutor’s constitutional pretrial disclosure obligations are also not dependent on a post-trial materiality analysis.  The Court cites two of its previous cases – Zanders and Miller – in support.  Boyd and Vaughn support this important proposition as well. 

• The Court notes that there are a number of respects in which a prosecutor’s ethical obligation differs from his or her constitutional obligations, including: (1) a Rule 3.8(e) violation involves an intentional failure to disclose exculpatory evidence, while a Brady violation can be inadvertent; (2) Rule 3.8(e) only requires disclosure of evidence about which the prosecutor has actual knowledge, whereas under Brady potentially exculpatory evidence known by other government actors is imputed to the prosecution; and (3) a violation of Rule 3.8(e) requires a finding that the prosecutor knew or should have known that the evidence tended to negate the guilt of the accused or mitigate the offense, whereas a Brady violation is not focused on the conduct of the prosecutor, only whether the evidence was potentially exculpatory and whether it had an effect on the verdict. 

• Although the Court did not sanction Kline, it issued a warning to prosecutors that – now that the scope of a prosecutor’s disclosure obligation under Rule 3.8 is clear – henceforth similar conduct will incur sanctions comparable to the sanction recommended by the Board of Professional Responsibility in Kline’s case.  Thus this case will surely catch the eye not only of prosecutors (whose bar cards are now on the line when they “tack too close to the wind”) but also of trial judges (who need to decide whether bar referrals are appropriate when faced with the intentional suppression of exculpatory evidence).  JF

Read full opinion here.