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Judge finds ex-prosecutor Cassilly withheld evidence, misled court

02.27.09 BEL AIR, MD. Harford County State's Attorney Joseph I. Cassilly in his Bel Air, Md. office. Photo by Rich Dennison/The Daily Record

Then-Harford County State’s Attorney Joseph I. Cassilly in his Bel Air office in 2009. (The Daily Record/File Photo)

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, a hearing judge reviewing allegations of ethical wrongdoing by Cassilly found this month.

Cassilly’s withholding and misleading violated Maryland Attorneys’ Rules of Professional Conduct pertaining to the special disclosure responsibilities of prosecutors, truthfulness to courts and fairness to opposing counsel and party, retired Baltimore County Circuit Judge Barbara Kerr Howe wrote in written findings of fact and conclusions of law in an ethics case Maryland bar counsel has brought against Cassilly.

Howe recommended Maryland’s top court reprimand Cassilly for his wayward actions. The judge said her recommendation would have been for a harsher sanction if Cassilly were still a practicing attorney or expressed a desire to return to practice.

“While the respondent (Cassilly) has had no other disciplinary matters, this court still finds that he displayed a disregard of his professional responsibility as an attorney,” Howe wrote. “However, the purpose of the court deciding the appropriate sanction for attorney misconduct is not to punish the lawyer, but to protect the public. Because the respondent is inactive, retired and has no desire to practice law in the future, the public is not at risk of respondent committing another violation.”

Cassilly – who served 36 years as Harford County’s chief prosecutor — will have an opportunity to present exceptions to Howe’s report in papers and in oral arguments to the Court of Appeals, the state’s ultimate arbiter of whether an attorney misbehaved and what the sanction should be.

Cassilly’s attorney, Michael P. May, noted his client’s otherwise unblemished ethical record Tuesday in saying the exceptions to Howe’s report will be comprehensive.

“Joe is as honest as the day is long,” said May, a Towson solo practitioner. “He is the last person who would want to pin a murder on somebody who didn’t do it.”

Cassilly strongly denied the allegations of unethical behavior when bar counsel lodged them in September.

He said then that the information in the report and letter was neither exculpatory nor nefariously kept from defense counsel or the court.

Cassilly said 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.”

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 Howe.

Cassilly failed to disclose either the 1999 report or 2014 letter to Huffington’s post-conviction counsel, Howe wrote.

That failure violated a prosecutor’s continuing ethical obligation to inform convicts or their counsel “of after-acquired or other information that casts doubt upon the correctness of the conviction,” Howe wrote.

The ethical rules expressly require prosecutors to disclose not only exculpatory evidence but “’evidence or information’ that ‘tends to negate the guilt of the accused or mitigates the offense, and in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigation information known to the prosecutor,’” Howe wrote.

Howe also found that Cassilly failed to tell the post-conviction judge of the letter, a misrepresentation that was “knowingly and intentionally false.”

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. 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, Howe wrote.

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, Howe found.

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,” Howe 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,” Howe  added.

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, Howe 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,” Howe stated.

In February 2017, defense counsel reiterated his request for “any correspondence with law enforcement that has not been disclosed regarding forensic testing,” Howe stated.  Cassilly responded that he was not aware of any exculpatory or mitigating evidence that had not already been given to counsel, Howe.

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,” Howe stated.

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.

Bar counsel’s investigation led to the ethics charges against Cassilly and the Court of Appeals’ appointment of Howe to hold a hearing and make findings of fact and conclusions of law.

May, Cassilly’s attorney, said he is nearing the final draft of the exceptions to Howe’s report but wonders the extent to which they can restore his client’s reputation to its former glory.

“This stain is indelible even if we set it aside with exceptions,” May said. “It’s like the Simon and Garfunkel song The Boxer: ‘A man hears what he wants to hear and disregards the rest.’”

Bar Counsel Lydia E. Lawless declined to comment Tuesday on Howe’s findings and conclusions.

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