The Maryland Attorney Grievance Commission will continue to press for retired Harford County State’s Attorney Joseph I. Cassilly’s disbarment after a judge recommended he be merely reprimanded for having withheld a potentially exculpatory report from the defense in a decades-old murder case and for misleading a court about the study’s existence.
In papers filed with Maryland’s top court Tuesday, the commission’s bar counsel said Cassilly’s “intentional dishonest conduct” warrants the stripping of his law license.
Cassilly, who was state’s attorney for 36 years, countered through counsel that he acted ethically and thus no sanction is warranted.
In Cassilly’s high court filing, attorney Michael P. May said the U.S. Justice Department report contained no exculpatory information in light of the overwhelming evidence that John Huffington killed Diane Baker and Joseph Hudson 40 years ago.
Bar Counsel Lydia E. Lawless and May submitted their dueling papers as the Court of Appeals prepares to hear arguments in September over whether Cassilly, who served from 1983 to 2019, violated Maryland Attorneys’ Rules of Professional Conduct and, if so, what the sanction should be.
Retired Baltimore County Circuit Judge Barbara Kerr Howe, whom the high court appointed to make findings in Cassilly’s disciplinary case, recommended last month that the former prosecutor receive a reprimand for what she characterized as his intentional misdeeds.
Howe said her recommendation would have been for a harsher — but unspecified — sanction if Cassilly were still a practicing attorney or expressed a desire to return to practice.
Lawless, in her written response to Howe’s findings, told the Court of Appeals that disbarment is warranted for Cassilly’s intentional wrongdoing despite his retirement.
“The respondent (Cassilly) has not presented evidence of, nor did the hearing judge find, any compelling extenuating circumstances which would mitigate the respondent’s intentional dishonesty,” Lawless wrote. “While the respondent’s multiple knowing and intentional misrepresentations to the court alone warrant disbarment, the respondent’s intentional failure to disclose exculpatory evidence for more than a decade undermines the integrity of the legal profession and further supports this sanction.”
The controversial Justice Department report was given to Cassilly in 1999.
The study raised serious questions about the accuracy of the damning forensic test an FBI agent conducted on hair taken from the Harford County scene where Huffington killed Baker and Hudson – a crime for which Huffington was initially convicted and sentenced to death in 1981, Howe stated in her disciplinary findings.
Cassilly failed to disclose the 1999 report or a supplementary letter the Justice Department sent him in 2014, Howe added.
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.
Howe also found 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 crime 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 it 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 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 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 discovery request to him seeking production of all communications between Cassilly’s office and the Justice Department related to Huffington’s case, Howe wrote.
At a post-conviction hearing in March 2017, Cassilly told the judge the FBI concluded that Malone had “testified properly” and “didn’t find that he did anything wrong in this case,” Howe stated.
In Cassilly’s Court of Appeals’ filing, May challenged Howe’s findings and conclusion that Cassilly had violated ethical rules requiring disclosure of exculpatory evidence and candor with courts.
May wrote that the report and subsequent letter questioning Malone’s testimony was in no way exculpatory because other forensic evidence and witness testimony at trial conclusively linked Huffington to the slayings. The evidence, having been sound at trial, indicated there was nothing wrong in the case, added May, a Towson solo practitioner.
“Under the circumstances, the proposition that the respondent was attempting to mislead the (post-conviction) court, when he had no motivation to do so and would have gained absolutely nothing, defies, most respectfully, both credulity and common sense,” May wrote. “Respondent’s comments about the reports were always based on his recollection and good faith interpretation of the 1999 report.”
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.
The case is docketed at the Court of Appeals as Attorney Grievance Commission v. Joseph I. Cassilly, Misc. Docket AG 31, September Term 2020.