A former federal prosecutor here committed an “egregious” ethics violation when he withheld evidence in a shooting case more than a decade ago, a professional responsibility board concluded Wednesday.
The D.C. Board on Professional Responsibility said Andrew Kline, who served as an assistant U.S. attorney in the District of Columbia, "intentionally failed to disclose information on request of the defense that as a prosecutor he knew or should have known tended to negate the guilt of the accused." The board's 31-page report is here.
A hearing committee recommended a public censure against Kline, who has since left government service. The professional responsibility board, however, citing the "gravity of the misconduct," said he should be suspended from practice for 30 days. The D.C. Court of Appeals, where the dispute is likely headed, will have the final say.
"Prosecutors should be held accountable in light of their pivotal role in the justice system," board member Robert Watkins wrote. "They are given great discretion, and there are few tools available to oversee their compliance with the legal standards that govern their conduct."
Kline, admitted to the D.C. bar in 1994, has long disputed that he intentionally withheld evidence in the case, which was filed in D.C. Superior Court. He has no other disciplinary history. Kline's lawyer, Venable partner Seth Rosenthal, declined to comment. Kline, who recently served as deputy general counsel for global policy at GoDaddy.com, is also a member of the California bar.
At issue in the ethics case against Kline were his handwritten notes that potentially cast doubt on the identity of the assailant in a drive-by shooting in 2001. The victim initially told an investigator that he did not know who shot him. Kline made note of that after he spoke with the detective who interviewed the victim.
The professional responsibility board said Kline failed to disclose this information to the alleged shooter's defense lawyer either directly or indirectly. The circumstances of the shooting, the panel said, "supported the defense of misidentification." A mistrial was declared in the first prosecution. Kline later left the U.S. Attorney's Office.
At the retrial, when a newly assigned prosecutor disclosed the victim's statement to the defense, the alleged shooter, Arnell Shelton, was convicted. An appellate court upheld the conviction. (Had Kline never left the U.S. Attorney's Office, the board said, "it is unlikely [his] misconduct would ever have been discovered.")
Kline's lawyers argued he never intentionally hid evidence he believed he should have revealed. The professional responsibility board, which heard the case after a committee first reviewed it, said Kline's argument "does not address the relevant question."
That question, the board said, is "whether Kline intentionally failed to disclose something that he reasonably should have known he was required to disclose to the defense."
"[T]he exculpatory potential of the [victim statement] was self-evident," Watkins wrote in the board report. "The disclosure of other police reports did not absolve respondent of his obligation to share this information with the defense."
Kline told the board, but not the hearing committee, that his failure to disclose the statement was inadvertent. The board rejected the argument. Kline's "own testimony supports the hearing committee's conclusion that he consciously decided not to produce information that he reasonably should have known tended to negate Shelton's guilt."
The board concluded that the fact a second jury convicted the shooter is "irrelevant" to whether the victim statement was material information that should have been disclosed to the defense.
The Justice Department, backing Kline in the dispute, argued that the professional conduct rule only requires the disclosure of "material" information. The government's position put it at odds with the D.C. bar counsel's office, which brought the case against Kline. DOJ said the professional conduct rule expanded the obligation imposed on prosecutors to disclose certain evidence.
The board also rejected Kline's argument that no sanction is necessary, even if he violated an ethics rule, given his lack of disciplinary history and his reputation as a fair prosecutor. The board said discipline was appropriate to serve as a deterrence and to "maintain the integrity" of the legal profession.
A disciplinary sanction, the board concluded, is an "effective, if not key means of both protecting the public and deterring future prosecutors from engaging in similarly egregious conduct."