Please ensure Javascript is enabled for purposes of website accessibility

Ex-prosecutor Cassilly defends himself against ethics charges

Former Harford County State’s Attorney Joseph I. Cassilly told the high court that the obligation to disclose impeachment evidence does not apply post-conviction because disclosure “would not undermine confidence in the outcome” of the trial in light of all other evidence. (The Daily Record/File Photo)

Facing potential disbarment, retired Harford County State’s Attorney Joseph I. Cassilly defended himself Thursday before Maryland’s top court against Attorney Grievance Commission allegations that he withheld a potentially exculpatory report from the defense in a decades-old murder case and for misleading a judge about the study’s existence.

Cassilly, who was state’s attorney for 36 years, told the Court of Appeals that the U.S. Justice Department report that criticized a key forensic witness’s findings was not exculpatory in light of the clear evidence that John Huffington brutally murdered Diane Baker and Joseph Hudson 40 years ago.

Cassilly said that disbarring or otherwise sanctioning him based on Huffington’s meritless ethics complaint – based largely on the report issued years after his conviction —  would encourage convicts to “take revenge on the prosecutor” by turning to the Attorney Grievance Commission and casting themselves as victims.

“The guy was guilty,” Cassilly told the high court. “The evidence was overwhelming.”

But Assistant Bar Counsel Erin A. Risch, pressing the AGC’s case, said Cassilly was ethically bound to disclose the report to Huffington’s post-conviction defense counsel because its findings undermined the reliability of evidence used to convict him.

Risch said the Maryland Attorneys’ Rules of Professional Conduct bind a prosecutor to disclose potentially exculpatory evidence post-conviction, a standard broader than that the U.S. Supreme Court enunciated in its 1963 decision Brady v. Maryland.

Brady held that the constitutional right to due process requires prosecutors to disclose all potentially exculpatory evidence to the defense that is discovered pretrial.

“The (Maryland) rule is not limited by Brady,” Risch said. “The prosecutors’ obligations continue.”

In that vein, Judge Jonathan Biran asked Cassilly whether he would have been obligated to disclose the report had it been released to him before Huffington’s trial.

Cassilly, who served as state’s attorney from 1983 to 2019, responded that he would have been ethically bound to disclose the report pretrial because its findings would have been relevant to the defense’s ability to impeach the state’s forensic expert, even though the report does not negate Huffington’s guilt.

The obligation to disclose impeachment evidence does not apply post-conviction because disclosure “would not undermine confidence in the outcome” of the trial in light of all other evidence, Cassilly said.

Risch told the high court that Cassilly’s failure to disclose was part of “a sustained course of conduct” in Huffington’s case that warrants disbarment.

The Court of Appeals heard the competing arguments during the first public session of its 2021-2022 term, which began Sept. 1. Judge Joseph M. Getty, whom Gov. Larry Hogan has elevated to chief judge effective this Saturday, presided over the court proceeding.

Chief Judge Mary Ellen Barbera, who reaches the state’s mandatory retirement age of 70 on Friday, did not participate in the court proceeding. Retired Judge Lynne A. Battaglia sat in for Barbera.

The Court of Appeals’ consideration of Cassilly’s professional fate followed retired Baltimore County Circuit Judge Barbara Kerr Howe’s issuance of findings, at the high court’s request, in the disciplinary proceedings against the former prosecutor.

Howe found that the controversial Justice Department report was given to Cassilly in 1999.

The study raised serious questions about the accuracy of the 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.

Cassilly failed to disclose the 1999 report or a supplementary letter the Justice Department sent him in 2014, Howe added.

Those failures 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.

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, which investigated and brought ethics charges against the former prosecutor.

Cassilly was also represented before the high court by Michael P. May, a Towson solo practitioner. May reiterated Cassilly’s argument that the evidence against Huffington was overwhelming and that his ethics complaint was an effort “to extract vengeance.”

The Court of Appeals is expected to render its decision by Aug. 31 in the case, Attorney Grievance Commission v. Joseph I. Cassilly, Misc. Docket AG 31, September Term 2020.