Maryland Court of Appeals
Professional Responsibility; Disbarment: Laches was not a valid defense, and disbarment was the appropriate sanction, for a Maryland attorney who, in his capacity as prosecutor, knowingly and intentionally failed to disclose for more than decade exculpatory evidence that came to light after a defendant’s conviction, discarded evidence, sought to have forensic evidence in case destroyed, knowingly made false statements of fact to court and defense counsel concerning content of evidence, and, during Bar Counsel’s investigation, failed to comply with subpoena to provide statement under oath. Attorney Grievance Commission of Maryland v. Cassilly, Misc. Docket AG No. 31, Sept. Term, 2020.
BOTTOM LINE: Laches was not a valid defense, and disbarment was the appropriate sanction, for a Maryland attorney who, in his capacity as prosecutor, knowingly and intentionally failed to disclose for more than decade exculpatory evidence that came to light after a defendant’s conviction, discarded evidence, sought to have forensic evidence in case destroyed, knowingly made false statements of fact to court and defense counsel concerning content of evidence, and, during Bar Counsel’s investigation, failed to comply with subpoena to provide statement under oath.
CASE: Attorney Grievance Commission of Maryland v. Cassilly, Misc. Docket AG No. 31, Sept. Term, 2020 (filed Oct. 22, 2021) (Judges Getty, McDonald, WATTS, Hotten, Booth, Biran & Battaglia (Senior Judge, Specially Assigned)
FACTS: Joseph Cassilly, a member of the Bar of Maryland, served as an Assistant State’s Attorney in Harford County from 1977 until 1983, at which time he became the elected State’s Attorney for Harford County, a position he served in until his retirement in January 2019. Beginning in 1981, in his capacity as an Assistant State’s Attorney and later as the State’s Attorney, Cassilly represented the State in prosecuting John Huffington for the murder of Diane Becker and her boyfriend, Joseph Hudson. As State’s Attorney, Cassilly represented the State in various postconviction proceedings in Huffington’s case.
After many years of such proceedings, in 2018, Huffington filed a complaint against Cassilly with Bar Counsel. On September 8, 2020, on behalf of the Attorney Grievance Commission, Bar Counsel filed a “Petition for Disciplinary or Remedial Action” against Cassilly in the Court of Appeals, charging him with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) and Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 3.3(a)(1) (Candor Toward the Tribunal), 3.4(a) (Fairness to Opposing Party and Counsel), 3.8(d) (Special Responsibilities of a Prosecutor), 8.1(a) (False Statement of Material Fact), 8.1(b) (Failing to Respond to a Lawful Demand for Information), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the Rules of Professional Conduct). The matter was referred to a circuit court judge to conduct a hearing and issue findings of fact and conclusion of law.
The hearing judge found that Cassilly, in his capacity as a prosecutor, knowingly and intentionally failed to disclose for more than a decade exculpatory evidence that came to light after Huffington’s discarded the evidence, knowingly made false statements of fact to a court and defense counsel concerning the content of the evidence, opposed Huffington’s postconviction petitions and sought to have forensic evidence that was the subject of Huffington’s post-trial request for review destroyed, and, during Bar Counsel’s investigation, failed to comply with a subpoena to provide a statement under oath. The hearing judge concluded that Cassilly had violated Rules 3.3(a)(1), 3.4(a), 3.8(d), 8.4(c), 8.4(d), and 8.4(a), but had not violated Rule 8.1 The Court of Appeals found that in addition to violating Rules 3.3(a)(1), 3.4(a), 3.8(d), 8.4(c), 8.4(d), and 8.4(a), Cassilly had violated Rule 8.1(b).
Bar Counsel recommended disbarment as the appropriate sanction. The Court of Appeals agreed and entered an order disbarring Cassilly.
LAW: Cassilly contended that there was an “inordinate delay” in Huffington’s filing of the complaint and in Bar Counsel’s filing of the Petition for Disciplinary or Remedial Action that “engendered a due process violation.” Cassilly essentially argued that the doctrine of laches should bar the attorney discipline proceeding. Specifically, he asserted that Huffington waited over seven years after learning of the “Robertson Report” submitted by Federal Bureau of Investigation analyst Steve Robertson, who was assigned to review the conduct of FBI Agent Michael Malone’s conduct in Huffington’s case, before filing his complaint against Cassilly. In the Robertson Report, Robertson stated that “he was unable to determine whether Agent Malone performed the appropriate tests in a scientifically acceptable manner and that Agent Malone’s examination results as set forth in the laboratory report were not supported or adequately documented in the bench notes.” Cassilly further noted that Huffington waited another year and a half before filing the Petition for Disciplinary or Remedial Action, which in his view constituted an inordinate delay and placed him at a disadvantage in responding.
The doctrine of laches, which is both an affirmative defense and an equitable defense, applies where there is an unreasonable delay in the assertion of one party’s rights and that delay results in prejudice to the opposing party. Jones v. State, 445 Md. 324, 329 (2015). In applying the doctrine of laches, it is generally necessary to analyze whether, in the context of an equitable claim, there was an unreasonable delay in the filing and, if so, whether any prejudice resulted. State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451, 585 (2014). Importantly, the passage of time, alone, does not constitute laches but is simply one of the many circumstances from which a determination of what constitutes an unreasonable and unjustifiable delay may be made. Id. at 590.
Given the underlying purpose of the Attorney Grievance process, there is much doubt regarding the applicability of the laches defense in attorney grievance proceedings. Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 356-58, 348 (1993). While members of the public are encouraged and expected to promptly pursue attorney grievance actions when they are warranted, the mere failure of a complainant to promptly file a complaint should not necessarily foreclose disciplinary action against the attorney. A mere delay in disciplinary proceedings is not a basis for dismissal, absent a showing of prejudice. Id. That being said, delay is not irrelevant, because if an attorney’s ability to present a defense is substantially impaired, and an attorney can show actual prejudice to the defense, there might be a due process violation. Attorney Grievance Comm’n v. Braskey, 378 Md. 425, 441-43 (2003).
In the present case, on November 13, 2018, Huffington filed a complaint against Cassilly with Bar Counsel. Less than two years later, on September 8, 2020, Bar Counsel filed the petition against Cassilly in the Court of Appeals. During the intervening time, Bar Counsel conducted an investigation of the complaint. Bar Counsel’s investigation included requesting responses from Cassilly to the complaint, interviewing witnesses, obtaining and reviewing documents, seeking to take Cassilly’s statement under oath, presenting the case to the Attorney Grievance Commission, and preparing the Petition for Disciplinary and Remedial Action. At the disciplinary hearing, Bar Counsel called six witnesses, including an expert witness, and introduced over 50 exhibits into evidence. Under the circumstances, the approximately 22-month period between the filing of the complaint by Huffington and the filing of the petition with the Court of Appeals did not constitute an unreasonable delay.
It was true that Huffington learned of the Robertson Report when his counsel received a copy of the report from a reporter in November 2011, and did not file a complaint with Bar Counsel until seven years later, in November 2018. However, any delay on Huffington’s part in filing a complaint could not be attributed to Bar Counsel for the purpose of laches. Huffington filed the complaint only one year after entering Alford pleas, being sentenced to time served, and concluding his criminal case. In other words, Huffington acted promptly in filing the complaint once he was no longer in jeopardy of a criminal conviction.
In any event, in this case, just as in Goldsborough, although Huffington, the complainant, filed a complaint years after the basis for the complaint became known to him, it was appropriate for Bar Counsel to pursue both an investigation and the filing of disciplinary charges. In addition, even if there had been unreasonable or extraordinary delay in Bar Counsel’s bringing the petition, Cassilly would not prevail based on the defense of laches because he did not demonstrate that he was prejudiced by the delay. See Braskey, 378 Md. at 444. The only form of prejudice alleged by Cassilly was faulty memory concerning “the particulars of having received the Robertson Report.” Without more, this bare allegation did not come close to demonstrating actual prejudice caused by any delay in the filing of the complaint or the petition.
The hearing judge correctly determined that information in the Robertson Report concerning Agent Malone’s testimony was exculpatory. In the report, Robertson stated that there was “insufficient documentation to determine if the hair comparison was performed in a scientifically acceptable manner” and that the results were “not adequately documented in the notes.” These determinations were highly relevant to the reliability and accuracy of Agent Malone’s trial testimony and constituted evidence that tended to negate Huffington’s guilt. These conclusions constituted exculpatory evidence, i.e., evidence favorable to Huffington that tended to negate his guilt.
The undisclosed evidence, the Robertson Report, was material because there was a reasonable probability that, had the evidence been disclosed, the result of the proceeding may have been different. As the circuit court discussed in its opinion and order granting Huffington’s petition for a writ of actual innocence and ordering a new trial, Agent Malone’s testimony constituted key forensic evidence linking Huffington to the crime, and Agent Malone’s testimony was emphasized to the jury by the State. Quite clearly, the Robertson Report was material because there was a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.
As to the hearing judge’s conclusions of law, clear and convincing evidence demonstrated that Cassilly violated Rules 3.3(a)(1), 3.4(a), 3.8(d), 8.1(b), 8.4(c), 8.4(d), and 8.4(a). Cassilly violated Rule 3.3(a)(1) (Candor Toward the Tribunal) by knowingly making false statements of fact to the court regarding the information contained in a 1999 letter from Lucy Thompson, a senior attorney assigned to the DOJ task force, concerning the independent scientific review in Huffington’s case and enclosing the Robertson Report, and the Robertson Report. The hearing judge found that Cassilly made knowing and intentional false statements regarding the letter and the Robertson Report on four separate occasions. The hearing judge’s findings with respect to the falsity of the statements at issue were amply supported by the record.
Rule 3.4(a) (Fairness to Opposing Party and Counsel) provides that an attorney shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. In addition, an attorney shall not counsel or assist another person to do any such act. Here, clear and convincing evidence supported the hearing judge’s finding that Cassilly disposed of the Robertson Report without maintaining a copy in the State’s file and then sought to destroy the evidence that was the subject of the report. As such, the hearing judge correctly concluded that Cassilly violated Rule 3.4(a).
The hearing judge correctly concluded that Cassilly violated Rule 3.8(d) (Special Responsibilities of a Prosecutor). The plain language of Rule 3.8(d) and accompanying comment indicate that a prosecutor’s disclosure obligations under Rule 3.8(d) apply pretrial, during trial, and after trial on appeal and in postconviction proceedings in which a defendant challenges guilt. Clear and convincing evidence supported the hearing judge’s conclusion that Cassilly violated Rule 3.8(d) by failing to disclose the Robertson Report.
Contrary to the conclusion of the hearing judge, Cassilly also violated Rule 8.1 (b) (Failing to Respond to a Lawful Demand for Information). On September 17, 2019, Bar Counsel issued a subpoena pursuant to Maryland Rule 19-712, ordering Cassilly to appear at the Office of Bar Counsel on October 1, 2019 to respond under oath to questions. Cassilly appeared on that date but refused to take the oath. As such, Cassilly willfully failed to comply with the subpoena, which constituted a knowing failure to respond to a lawful demand for information.
As the hearing judge correctly concluded, just as Cassilly violated Rule 3.3(a)(1), he violated Rule 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation). In making four statements of fact that he knew to be false to the circuit court concerning the Robertson Report, Cassilly engaged in conduct involving intentional dishonesty, in violation of Rule 8.4(c). The hearing judge was also correct in concluding that Cassilly’s conduct which gave rise to violations of Rules 3.3, 3.4, 3.8(d), and 8.4(c) also constituted a violation of Rule 8.4(d) (Conduct that is Prejudicial to Administration of Justice).
COMMENTARY: Bar Counsel recommended that Cassilly be disbarred. In cases of intentional misconduct, only compelling extenuating circumstances would justify a sanction less than disbarment in cases of intentional dishonest conduct. Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 413-14 (2001). An examination of Cassilly’s misconduct, including his various instances of intentionally dishonest misconduct which consisted of knowingly making false statements to the circuit court and Huffington’s counsel, demonstrated that, under Vanderlinde and its progeny, disbarment was warranted. The very basic premise undergirding the holding in Vanderlinde and other cases involving intentional dishonesty is that the Court of Appeals must protect the public and deter lawyers from engaging in intentional dishonesty of the type that Cassilly engaged in. The two mitigating factors in this case, good reputation and lack of prior attorney discipline, did not constitute compelling extenuating circumstances, or mitigation for that matter, which would result in a sanction less than disbarment. For these reasons, Cassilly was disbarred. Although Cassilly was in inactive/retired status, his disbarment would be effective immediately.
PRACTICE TIPS: It is well established that, “when an attorney’s misconduct is characterized by repeated material misrepresentations that constitute a pattern of deceitful conduct, as opposed to an isolated instance, disbarment follows as a matter of course.” Notably, “[t]his rule is not limited to cases involving misappropriation or criminal conduct.” Rather, “[w]hen a pattern of intentional misrepresentations is involved, particularly those misrepresentations that attempt to conceal other misconduct by the attorney, disbarment will ordinarily be the appropriate sanction.” Attorney Grievance Comm’n v. Framm, 449 Md. 620, 667 (2016).
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