Thursday, August 1, 2013

DC gets tough on prosecutors for misconduct

I have complained repeatedly on this blog about how regulatory agencies and courts do not take prosecutorial misconduct seriously enough; about how prosecutors are rarely disciplined, etc.

Finally, I have a chance to report a case where the exact opposite is true.  The Legal Profession blog is reporting that the District of Columbia Board on Professional Responsibility has recommended a suspension of 30 days of an Assistant United States Attorney who had failed to provide a witness statement to the defense.

The reason the case is noteworthy is that Bar Counsel had recommended a public censure.  The board noted that cases where the board imposes a sanction that exceeds that sought by Bar Counsel "should be the exception, not the norm" but it found this to be such a case because, according to the board, the prosecutor's violation of Rule 3.8(e) was blatant. He failed to disclose exculpatory information that was obviously material. The board also stated that a suspension will serve as a more effective deterrent than the public censure recommended by Bar Counsel and the Hearing Committee and is an appropriate measure of the seriousness of Respondent's misconduct. I think 30 days is still too light, but I am certainly happy to see that the Board rejected the ridiculous recommendation of the hearing committee and bar counsel. The case is in In re Andrew J. Kline, No. 11-BD- 007, and is available at this link.

Is this the beginning of a trend?  It is hard to say, but last year, the Court of Appeals disbarred a former prosecutor for Brady violations. Prior to that, public discipline had never been imposed in the District of Columbia for Brady-type misconduct.

Whatever it is, it is a good example for other jurisdictions to follow.  The Legal Ethics Forum has more on the story (and more links) here.  The Blog of the Legal Times has more (and links) here.