Steve Lash//October 22, 2021
//October 22, 2021
A unanimous Maryland high court Friday disbarred retired Harford County State’s Attorney Joseph I. Cassilly for having withheld a potentially exculpatory report from the defense in a decades-old murder case and for misleading a judge about the study’s existence.
The Court of Appeals said Cassilly – who was state’s attorney for 36 years — also failed to comply with a subpoena to provide bar counsel with a statement under oath.
Cassilly’s “intentional dishonesty” warrants the stripping of his license to practice despite his otherwise “good reputation” and lack of prior attorney discipline over his long career, the high court said. Disbarment is also called for despite Cassilly’s retirement and statements he does not intend to return to the practice of law.
“Foregoing the sanction of disbarment because of the circumstance that Cassilly has voluntarily assumed inactive/retired status…would ignore the basic tenet that a sanction is imposed not to punish an attorney but instead to protect the public and the public’s confidence in the legal profession,” Judge Shirley M. Watts wrote for the court.
“In this case, disbarment recognizes the seriousness of Cassilly’s misconduct and serves the goal of protecting the public and ensuring the public’s confidence in the legal profession by deterring other attorneys from engaging in similar misconduct,” Watts added. “Moreover, in imposing the sanction of disbarment, we protect the public by curtailing Cassilly’s ability to resume active attorney status (which would not require permission of this court) or to practice law in accord with Maryland (rules) while in inactive/retired status.”
Cassilly’s attorney, Towson solo practitioner Michael P. May, did not immediately return messages Friday seeking comment on the court’s decision.
Bar Counsel Lydia E. Lawless declined to comment on the ruling.
The high court rejected Cassilly’s argument that the U.S. Justice Department report that criticized a key 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.
The court 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. The court added that the Maryland Attorneys’ Rules of Professional Conduct could bind a prosecutor to disclose potentially exculpatory evidence post-conviction, a standard that would go broader than that the U.S. Supreme Court enunciated in its 1963 decision Brady v. Maryland. The Brady rule requires prosecutors to disclose potentially exculpatory evidence discovered before trial.
“The plain language of Rule 3.8(d) neither excludes nor includes post-conviction proceedings and instead simply imposes an obligation on a prosecutor to disclose all evidence or information that tends to negate the guilt of the accused or mitigates the offense,” Watts wrote. “The guilt of the accused may be challenged at various phases of a criminal proceeding – pretrial, during trial, and after trial on appeal and in post-conviction proceedings.”
The high court declined to hold that the Maryland rule goes beyond Brady’s pretrial disclosure requirement in all cases but said “a prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure.”
The Court of Appeals’ sealing 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.
The Court of Appeals, in its decision, adopted Howe’s findings that included the following:
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, who served as state’s attorney from 1983 to 2019, 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.
The high court found that Cassilly’s actions violated Maryland Attorneys’ Rules of Professional Conduct pertaining to candor to the court, fairness to the opposing party, special responsibilities of the prosecutor, failing to respond to a lawful demand for information, dishonesty and conduct prejudicial to the administration of justice.
“Here, in his role of state’s attorney for Harford County, Cassilly, among other misconduct, knowingly made false statements of fact to the circuit court on multiple occasions, engaged in intentional dishonesty, concealed from Huffington and his counsel the Robertson report, and sought to destroy the evidence that was the subject of the report,” Watts wrote. “With this misconduct, Cassilly engaged in misconduct that the public would not expect from a member of the legal profession, especially the state’s attorney of a jurisdiction, and that would negatively impact the perception of the legal profession of a reasonable member of the public.”
Judge Robert N. McDonald wrote a concurring opinion to reiterate that the court has declined to hold that Maryland ethical rules go beyond Brady’s pretrial disclosure requirement in all post-conviction cases, saying the issue’s finality “remains for another day.”
The Court of Appeals rendered its decision in Attorney Grievance Commission v. Joseph I. Cassilly, Misc. Docket AG 31, September Term 2020.S