Drawing The Line

Mike Scarcella

Corporate Counsel

09-01-2012

A version of this story appeared in The National Law Journal, a sibling of Corporate Counsel.

The U.S. Department of Justice has stepped into a rare fight over the authority to regulate government lawyers, backing a former federal prosecutor in Washington, D.C., who is accused of intentionally keeping evidence secret in a shooting case a decade ago.

Lawyers at Main Justice and the U.S. Attorney's Office for the District of Columbia teamed up to urge the District of Columbia Board on Professional Responsibility to throw out an ethics committee's conclusion that a former assistant U.S. attorney, Andrew Kline, violated a D.C. criminal discovery rule.

Kline, whose career included a stint at the White House, is now deputy general counsel for global policy at The Go Daddy Group Inc., the Web hosting and domain name registration company.

Justice Department officials have long been concerned about tension between state and local attorney conduct rules. The case pending before the D.C. professional conduct board pits the ability of the department to govern the conduct of its lawyers against the effort of local bar counsel to hold prosecutors accountable for alleged rule violations.

"It's an understandable power struggle on both sides," says Stephanos Bibas, a University of Pennsylvania Law School ­professor, who testified in the Senate Judiciary Commit­tee on prosecutorial ethics in June. "The Justice Department wants to apply its rules uniformly, regardless of which bar a lawyer is a member of," he says. "But the District of Columbia says you are practicing here, and we are entitled to set higher ethical requirements in D.C. courts."

The director of the Justice Department's Professional Responsibility Advisory Office, Jerri Dunston, who is participating in the Kline case, declined to comment. Kline and his lawyer, Venable white-collar defense partner Seth Rosenthal, also declined to discuss the dispute.

"Mr. Kline readily accepts that, as a prosecutor, he had a special duty to act fairly and to serve as a minister of justice," Kline's lawyers said in a brief filed on May 31. "Correspondingly, he acknowledges how important it is for prosecutors—and how important it was for him—to timely furnish exculpatory and impeachment evidence to those accused of crimes."

At issue in the case is the ethics committee's interpretation of a rule that governs disclosure requirements in criminal cases. The rule says prosecutors cannot intentionally fail to disclose any information that "the prosecutor knows or reasonably should know tends to negate the guilt of the accused." That phrase, however, is not defined.

The department contends that the interpretation of the rule is a broad expansion of prosecutors' constitutional disclosure obligations. The thrust of its argument is that ethical and disciplinary rules should not constrain federal prosecutors beyond requirements in the Constitution, federal statutes, or procedural rules. The government's brief also said that Justice, "as a matter of internal policy," generally requires prosecutors to disclose more evidence than what's required under the seminal U.S. Supreme Court case Brady v. Maryland .

Kline, who was an assistant U.S. attorney in 2002, failed to turn over notes that cast doubt on the identity of a shooter in an aggravated assault prosecution. The notes were based on his interview of a police officer who spoke with the victim, Christopher Boyd, at a hospital shortly after he was shot.

The first trial in March 2002 ended in a hung jury. By the time of the second trial, a new prosecutor was assigned to the case. The shooter's attorney, Anna Rodriques of the D.C. Public Defender Office, received the victim information that Kline withheld. Still, the jury convicted the defendant, a man named Arnell Shelton.

Kline's lawyers argue that the victim information was not "material" to the defense of the shooter. "If there was any doubt about the immateriality of the Boyd hospital statement, it was put to rest by the fact that the jury in the second trial actually heard the evidence and convicted Shelton after only a few hours of deliberation," Kline's attorneys said in their brief before the professional conduct board.

The three-person ethics committee in Kline's case, which included Nixon Peabody litigation partner Robert Bernius and Karen Branson, general counsel of the District's Office of the Inspector General, held a two-day hearing last summer before recommending a public censure—a formal, public condemnation that does not come with a suspension. Kline earlier rejected an informal admonition from the D.C. Office of Bar Counsel, a decision that would have voided a hearing and put an end to the dispute.

"This case is about a devoted career public servant who strives to always do the right thing, and 10-year-old allegations that can't be proven because there was no violation of the law," an assistant U.S. attorney, W. Mark Nebeker, said at the hearing. Bar counsel, Nebeker said, had no proof that Kline intended to withhold evidence.

Elizabeth Herman, deputy bar counsel, told the committee members that Kline "made a wrong decision. He was aware of information that he had an obligation and a responsibility to turn over, but he decided not to do so."

Kline "knew that the identity of the shooter would be the issue at trial," Herman said. "The defense was not self-defense. It was not innocent presence. It was not accident. It was identity—who was the shooter."

The hearing committee said in its report on March 28 that Kline, a member of the D.C. bar since 1994, "unilaterally" held on to the favorable witness evidence. Bernius, who prepared the report, declined to comment.

"A prosecutor's violation of his duties to the criminal justice system is a profoundly serious matter," the hearing 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."

The full D.C. professional responsibility board will hear the Kline case later this year.