A legal ethics committee in Washington is recommending the public reprimand of a former federal prosecutor here who is accused of concealing favorable information from a man charged in an aggravated assault case.
The D.C. Office of Bar Counsel alleged that former assistant U.S. attorney Andrew Kline violated a local rule of professional conduct that says prosecutors cannot intentionally fail to disclose evidence that would benefit a person’s defense.
A committee of the D.C. Board on Professional Responsibility on Wednesday issued a report (PDF) that said Kline kept secret information that would have aided a man’s defense on charges tied to a drive-by shooting in Washington.
The committee said Kline knew that the shooting victim initially told a police officer that he did not know the identity of the man who fired at him. The committee’s recommendation of censure marks a rare case of disciplinary proceedings in Washington against a prosecutor.
“A prosecutor’s violation of his duties to the criminal justice system is a profoundly serious matter,” the committee said. “The prosecutorial obligation to disclose exculpatory information is inexorably intertwined with defendant’s right to due process, and hence determines the integrity of the trial process.”
Kline, the committee’s report said, held onto that information “unilaterally,” notwithstanding the encouragement for prosecutors in the U.S. Attorney’s Office for the District of Columbia to confer with supervisors or appellate attorneys on such matters.
“Had he undertaken even the most cursory consultation, (Kline) undoubtedly would have been advised to disclose the information,” considering that supervisors all later concluded that defense counsel was entitled to it, the hearing committee said.
Kline said in an interview this afternoon that the Office of Bar Counsel is “over-reaching” with the misconduct allegation. He said the victim statement at issue was not “material” to the shooter’s defense given the accounts of two other witnesses.
“I didn’t intentionally withhold evidence that I thought tended to negate the defendant’s guilt,” said Kline, a member of the D.C. Bar since 1994 who has spent most of his career as a public servant. “I don’t want to call it a mistake. I didn’t violate a rule.”
Kline, who received the attorney general’s award for distinguished service in 2009 when he was a Civil Rights Division attorney at Main Justice, said he will challenge the committee report. “I’ll take it to the court of appeals if I have to,” he said.
He argued at a Board on Professional Responsibility committee hearing that even if the information had been disclosed, it would not have made a difference on the outcome of the trial.
The first trial in March 2002 stemming from the shooting ended up in a hung jury. By the time of the second trial, the shooter’s attorney had the victim information but still wasn’t able to convince jurors that the authorities had accused the wrong person.
The ethics investigation flows from a D.C. Court of Appeals opinion in the shooting case. The appeals court last summer upheld the conviction of the shooter, Arnell Shelton, on charges that included aggravated assault.
Shelton’s lawyer at the D.C. Public Defender Service said that he had an alibi, making the central issue in the trial in D.C. Superior Court the credibility of government witnesses who identified Shelton as the shooter.
Shortly after the shooting, the victim told police he could not identify the person who fired at him. But, at trial, the man blamed Shelton. Kline did not tell Shelton’s defense attorney about the victim’s earlier inability to recall the gunman.
There was no forensic evidence linking Shelton to the shooting, and Shelton, court records show, did not make any incriminating statements. The shooting, the committee reported, happened quickly and at night.
The victim “at most had precious little chance to view his assailant, but even that limited opportunity was further constrained by the fact that he had been drinking, had been shot from behind and had to look through tinted windows to see the assailant,” the committee report said.
Wanda Dixon, an assistant U.S. attorney in 2002, disclosed the victim information on the eve of the second trial. (Dixon has since left the U.S. Attorney’s Office.)
At a disciplinary hearing, Kline tried to distance himself from notes he took in which a police officer told him that the victim could not identify the shooter.
Kline told the hearing committee members—Robert Bernius, Anthony Gracey and Karen Branson—that his notes were not a verbatim account of the conversation and that he was a “terrible note taker.” Citing the passage of time, Kline said he did not have a clear recollection of his conversation with the police officer.
The committee said the notes “are a reliable recorded recollection” and are the “best evidence” of the conversation between Kline and the police officer about the victim’s inability to name the shooter.
The committee said enforcement of Rule 3.8(e) of the D.C. Rules of Professional Conduct, which says a prosecutor cannot intentionally fail to disclose certain information, will not “work mischief among federal prosecutors.”
Restricting enforcement of the rule to only the disclosure of “material” information, the committee said, “would be inconsistent with relevant decisions of the Court of Appeals.”
Kline has no prior legal disciplinary actions against him. He now has the opportunity to file an objection to the findings and the recommendation of the committee, setting up a hearing before the Board on Professional Responsibility.