Brady v. Maryland requires a prosecutor to disclose evidence that is favorable to the defense. Yet many critics have correctly pointed out that unless there exists a way to discipline prosecutors who willfully violate this obligation, it is an abstract right without a concrete remedy.
The D.C. Court of Appeals, however, recently offered one method to enforce these obligations—the ethics rules.
In In re: Andrew J. Kline, the court resolved an uncertainty in the required disclosures under Brady and Rule 3.8 of the District of Columbia Rules of Professional Conduct.
Mr. Kline, a federal prosecutor, failed to disclose a piece of evidence to the defense. He argued that the two standards were coextensive. Although Brady may not have mandated disclosure, the court held that Rule 3.8 did.
Ultimately, the court decided not to impose sanctions on Mr. Kline. The court’s ruling, however, is a step towards rational enforcement of a prosecutor’s Brady obligations.
Seek Justice, Not a Winning Record
As the Supreme Court said in Berger v. United States:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor – indeed, he should do so.
But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
The Supreme Court’s language in Berger is captivating, but it ignores the bitter reality that prosecutors are too often out to win.
It’s a natural tendency to prefer to win rather than lose. For prosecutors, though, it sometimes seems that there is a propensity to get entrenched in a world view that bears little resemblance to what actually happened, and a complete inability to give the target of the investigation even the slightest benefit of the doubt.
I’ve seen it myself. A veteran Midwestern prosecutor targeted my client for years, claiming that he paid doctors illegal kickbacks to secure Medicare business. We found out through back channels that Main Justice had refused to prosecute the case. But she persevered. After several weeks of trial, it took the jury just a few hours to acquit him of all charges. There’s no doubt in my mind that this prosecutor wanted only to win and had lost sight of seeking justice.
What Mr. Kline Failed to Disclose
The context for the Kline decision was a drive-by shooting case from 2001. When Mr. Kline took control of the case, he received an alibi notice from the defendant, indicating that the main issue at trial would be the reliability of the victim’s eyewitness testimony.
During an interview with the police (which was then reported to Mr. Kline), the victim stated that he did not know who the shooter was. The interview took place right after the shooting.
When the defense asked Mr. Kline for any “prior inconsistent [or] non-corroborative” statements from his witnesses, Mr. Kline stated that the government had no “truly exculpatory information” and did not disclose the victim’s statement to the defense.
What Happened at Trial
The victim, along with two other eyewitnesses, testified at trial. In response, the defendant called his wife to the stand. She testified that he had been at home during the shooting. The jury, unable to agree, returned no verdict and the court declared a mistrial.
Mr. Kline then left the U.S. Attorney’s office and the case was handled by a series of different attorneys over the next few months. The last AUSA on the case realized Mr. Kline’s misstep and disclosed the victim’s statement to the defense. The case went to trial a second time and the defendant was convicted in spite the defense’s new evidence. The conviction was later upheld on appeal.
Brady versus Rule 3.8
Brady held that
suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.
The “materiality” requirement was considerably strengthened in United States v. Bagley (1985). It now requires that the evidence would have changed the outcome of the case. Showing that one piece of evidence is a game-changer is a tough standard for any defendant.
Rule 3.8 is titled “Special Responsibilities of a Prosecutor.” It states that
The prosecutor in a criminal case shall not . . .
(e) Intentionally fail to disclose to the defense, upon request and at a time when use by the defense is reasonably feasible, any evidence or information that the prosecutor knows or reasonably should know tends to negate the guilt of the accused or to mitigate the offense, or in connection with sentencing, intentionally fail to disclose to the defense upon request any unprivileged mitigating information known to the prosecutor and not reasonably available to the defense, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;
The comment to Rule 3.8 states:
This rule is intended to be a distillation of some, but not all, of the professional obligations imposed on prosecutors by applicable law. The rule, however, is not intended either to restrict or to expand the obligations of prosecutors derived from the United States Constitution, federal or District of Columbia statutes, and court rules of procedure.
Mr. Kline’s Actions
Mr. Kline argued that Rule 3.8 incorporates the Brady “material-to-outcome” test. Because the withheld evidence was not outcome determinative, he contended, neither Brady nor Rule 3.8 required disclosure. Given that the defendant was convicted in a second trial after the evidence had been disclosed, Mr. Kline had a strong case that the evidence would not have changed the outcome of the first trial had it been disclosed.
The D.C. Board on Professional Responsibility recommended that a 30-day suspension be imposed on Mr. Kline, and Mr. Kline appealed.
Rule 3.8 Is Not the Same as Brady
The court disagreed with Mr. Kline’s interpretation of Rule 3.8(e).
According to the court, the drafters of Rule 3.8 drew heavily on a similar rule in the ABA’s Model Code of Professional Responsibility. At the time, the Model Rule demanded disclosure for evidence that “tends to negate guilt or mitigate the offense.” This standard first arose in 1969, well before the Supreme Court’s 1985 Bagley decision.
The court concluded that Rule 3.8 follows the earlier formulation of materiality and is not coextensive with the Brady test in its current form. The withheld evidence did tend to negate the defendant’s guilt, and it should have been disclosed. In withholding it, Mr. Kline violated Rule 3.8, even if he may not have violated Brady.
The court reasoned that importing the Brady test into Rule 3.8
is counterintuitive when it comes to the development and implementation of rules designed to guide ethical behavior. “In Brady cases  an appellate court sits not as a disciplinary committee of the state bar—but rather as a court of review, ensuring only that the criminal conviction satisfies the threshold requirements of due process.” (citation omitted)
By contrast, ethical rules are designed to guide behavior, whereas appellate review of criminal cases is to ensure, after the fact, that a criminal defendant has received a fair trial. Thus, to the extent the Rule 3.8 commentary suggests a materiality test, we reject it. We see no logical reason to base our interpretation about the scope of a prosecutor’s ethical duties on an ad hoc, after the fact, case by case review of particular criminal convictions
Is This Standard Better for Prosecutors?
The court also recognized a second distinction between Rule 3.8 violations and Brady violations: intent.
While prosecutors can inadvertently violate Brady, they only run afoul of Rule 3.8 by intentionally failing to disclose.
If the Brady standard were imported into Rule 3.8, then inadvertent failures to disclose could turn into ethical violations by prosecutors, exposing them to further risk.
Ultimately, the court recognized that before its current ruling, Rule 3.8 disclosures had been extremely confusing for prosecutors. As a result, the court refused to sanction Mr. Kline.
Though the Court found that the victim’s statement was material for the purposes of disclosure and also that Mr. Kline purposely failed to produce it, he would suffer not professional repercussions. The Court stated that his understanding of Rule 3.8 was wrong but not unreasonable.
This strikes me as a fair outcome for this individual case. However, it is reassuring to see at least one court willing to use the ethics rules as a way to encourage (read: force) prosecutors to think more broadly about their obligation to seek justice.
Like I tell my kids, winning isn’t everything.
[…] (Image from grandjurytarget.com) […]
[…] (Image from grandjurytarget.com) […]
[…] third sanction is referral to the prosecutor’s state disciplinary authorities. In the District of Columbia, violating Brady is a violation of the rules of professional conduct. While very VERY few prosecutors have been disbarred for Brady violations, DOJ loves to talk about […]