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Ex-prosecutor Cassilly withheld evidence, misled court, says bar counsel

Harford County State's Attorney Joseph I. Cassilly in his Bel Air, Md. office (File)

Harford County State’s Attorney Joseph I. Cassilly in his Bel Air office, in a 2010 photo (File)

Then-Harford County State’s Attorney Joseph I. Cassilly withheld a potentially exculpatory report from defense counsel in a long-running first-degree murder case and then misled the post-conviction court about its existence, Maryland’s bar counsel has alleged in a disciplinary petition filed Tuesday in the state’s top court.

The U.S. Justice Department report, given to Cassilly in 1999 and supplemented with a letter in 2014, raised serious questions about the accuracy of the damning forensic test an FBI agent conducted on hair taken from the scene where John Huffington killed Diane Baker and Joseph Hudson – a crime for which Huffington was initially convicted and sentenced to death in 1981, according to Bar Counsel Lydia E. Lawless’ complaint.

In her petition for disciplinary action, Lawless urged the Court of Appeals to sanction Cassilly to the extent it deems appropriate for his alleged violations of Maryland Attorneys’ Rules of Professional Conduct governing candor to courts, fairness to opposing parties and counsel, disclosure by prosecutors and honesty with bar counsel.

Cassilly strongly denied the allegations Wednesday, saying the information in the report and letter was neither exculpatory nor nefariously kept from defense counsel or the court.

Cassilly added that Huffington ultimately pleaded no contest to two counts of first-degree murder and related offenses — despite having been granted a new trial and being in possession of allegedly exculpatory information.

“I’m frankly surprised that bar counsel is proceeding with this,” said Cassilly, who served as state’s attorney from 1983 to 2019. “I never did anything unethical.”

According to Lawless, Cassilly failed to disclose either the 1999 report or 2014 letter to Huffington’s post-conviction counsel and then “knowingly and intentionally sought to mislead” the circuit court by failing to tell the judge of the letter.

Lawless stated  that the Justice Department in 1997 publicly disclosed potential flaws in forensic agent Michael Malone’s analysis of hair found at scenes in in its study titled “The FBI Laboratory: An Investigation Into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases.” The study drew the attention of Huffington’s defense attorney but did not specifically mention inaccuracies in his client’s case.

The department’s 1999 report, performed by hair and fiber expert Steve Robertson and given to Cassilly, specifically examined Malone’s work on the Huffington case, among others, Lawless wrote. That report, which Cassilly did not disclose to defense counsel, stated that Robertson was unable to conclude that Malone had performed his testing in a scientifically acceptable manner and found Malone’s examination was inadequately documented in his notes, according to Lawless’ petition.

In 2009, the National Academy of Sciences issued a public report – “Strengthening Forensic Science in the United States: A Path Forward” – that questioned the validity and reliability of hair examination evidence due to significant error rates and advances in DNA testing.

Armed with the public 1997 and 2009 studies – but unaware of the undisclosed 1999 report to Cassilly – Huffington’s attorney filed a petition for a writ of actual innocence in 2010, saying Malone’s conclusions were unreliable, Lawless stated.

Cassilly, though having received the 1999 report, filed an opposition to the innocence petition in January 2011 in which he erroneously stated that “no evidence has been presented that the conclusion that examiner Malone rendered in court is inaccurate,” Lawless wrote. At a circuit court hearing in March 2011, Cassilly told the judge that “there’s no evidence today that anything he (Malone) said in this trial or that subsequent comparison of the hairs that he made in this trial have been shown to be incorrect,” bar counsel added.

Lawless called this statement “knowingly and intentionally false” in that Robertson’s report had found that Malone’s conclusions were inconsistent with his bench notes.

Huffington’s counsel was made aware of the Robertson report in November 2011 when a Washington Post reporter provided him a copy. The attorney amended the petition for writ of actual innocence to include the Robertson report as newly discovered evidence.

On March 27, 2013, the FBI concluded that the hair samples did not belong to Huffington. In May 2013, the court ordered a new trial.

In July 2014, Cassilly received a letter from Justice Department special counsel Norman Wong that identified errors in Malone’s conduct in Huffington’s case, finding that Malone’s conclusions based on the hair sampling “included statements that exceeded the limits of science and were, therefore, invalid.”

Cassilly did not disclose the letter to Huffington’s counsel, even after the attorney “submitted a formal discovery request to respondent seeking production of all communications between the state’s attorney’s office and the Justice Department related to Mr. Huffington’s case,” Lawless wrote.

Instead, Cassilly wrote back, “You already have in your files the reports of all expert examinations conducted in connection with this case. Again all FBI reports are contained in the sheriff’s files,” Lawless stated.

“The respondent’s statements were knowingly and intentionally false,” Lawless wrote. “The July 28, 2014 letter and the Robertson report had not been disclosed to defense counsel and copies were not contained in the sheriff’s files.”

In February 2017, defense counsel reiterated his request for “any correspondence with law enforcement that has not been disclosed regarding forensic testing,” according to Lawless’ petition.

Cassilly responded, “I am not aware of any exculpatory or mitigating evidence in this case that has not already been furnished to counsel years ago.” Cassilly’s office subsequently sent a letter to defense counsel stating that “all correspondence between the state and any law enforcement agency that is responsive to a discovery request and discoverable … has been provided to the defense,” Lawless added.

At a court hearing in March 2017, Cassilly told the judge that the FBI concluded that Malone had “testified properly” and “didn’t find that he did anything wrong in this case,” Lawless stated.

“The respondent knowingly and intentionally sought to mislead the court by omission when he failed to advise the court of the existence of the July 28, 2014 letter and its contents,” Lawless wrote. “The respondent’s statements about the FBI’s conclusions were knowingly and intentionally false and misleading.”

On Nov. 9, 2017, Huffington ultimately pleaded no contest to two counts of first degree murder, one count of armed robbery and one count of burglary. Under the plea, Huffington was sentenced to two concurrent life sentences, all suspended except for the 32 years he had served in prison.

A year later, Huffington filed a complaint against Cassilly with bar counsel.

During bar counsel’s investigation, Cassilly “falsely claimed that there was no exculpatory evidence in the case,” Lawless wrote.

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