Bill would refer wrongful convictions to Attorney Grievance Commission

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The names of the prosecutors and defense lawyers involved in convictions later deemed to have been wrongful would be forwarded automatically to the Maryland Attorney Grievance Commission for potential ethics investigations under legislation the House Judiciary Committee heard last week.

Del. David Moon, the measure’s chief sponsor, called the automatic referral necessary because clearly something was amiss in the prosecution or defense of these overturned convictions that deserves an examination to determine if any ethical rules were violated and a sanction against an attorney warranted.

“I’m not suggesting it’s against the prosecutors or it’s against the defense attorneys” in these cases, Moon said at the hearing.

“There could be nothing wrong at all and, in fact, in some of the cases I think it really could just be a series of unfortunate missteps, but it’s not going to be 100 percent” of the time, he added. “If this were a doctor, I think at a minimum you would want the hospital to think something is worth looking at, at a minimum to review what happened. At a maximum, some people might be in the wrong line of work.”

The legislation, House Bill 249, drew fire from the Maryland State’s Attorneys’ Association, which voiced concern that the measure was primarily targeted at prosecutors.

Moon, in explaining the need for his bill, cited what he called the Maryland Court of Appeals’ disbarment last fall of 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.

“I was astonished that this case had popped through” and resulted in a sanctioned prosecutor, said Moon, D-Montgomery and the House committee’s vice chair.

“My God,” he added. “The system is alive somewhere for someone. Somehow, something happened, so it is possible in Maryland. It’s not going to happen in every case.”

Cassilly’s misconduct did not involve an exoneration, as Moon’s bill contemplates.

The defendant, John Huffington, was granted a new trial due to the misconduct, but he ultimately pleaded no contest in 2017 to two first-degree murder counts on which he had been convicted. He was sentenced to two concurrent life sentences, which were suspended except for the 32 years he had already served in prison.

Huffington subsequently filed the attorney grievance complaint against Cassilly, which ultimately led to his disbarment.

Moon, in pressing for his automatic referral bill, said the wrongly convicted should not have the burden of lodging ethics complaints against their prosecutors or attorneys.

Moon, himself a lawyer, added with regret that his legislation is also necessary because too often attorneys fail to meet their ethical obligation to report their prosecuting or defense-attorney colleagues when they act unethically.

“In law and in criminal justice, imprisoning innocent people is a catastrophe,” Moon said.

“We’re all members of the bar; we took an oath to report this sort of behavior and do something about it,” he added. “I don’t think it’s happening. We are all failing at our stated jobs.”

But Caroline County State’s Attorney Joseph Riley characterized the legislation  as anti-prosecutors and said Cassilly’s disbarment shows that the system of attorney discipline works without the need for an automatic referral to the grievance commission.

“Quite frankly, I can’t think of a bill that has been more of an attack on prosecutors and totally has no regard for the harms that defense attorneys sometimes cause in these actual innocence cases,” Riley said on behalf of the Maryland State’s Attorneys’ Association.

“This bill is not needed,” he added. “It is an affront to say the harmed parties can’t take care of this action themselves.”

Howard County State’s Attorney Rich Gibson said the proposed automatic referral in cases of wrongful convictions would have “a chilling effect” on prosecutors, adding that exonerees are free and willing to bring their complaints to the Attorney Grievance Commission.

“Prosecutors should have no hindrance in pursuing factually challenging cases provided there is sufficient evidence supporting probable cause and sufficient evidence to prove the case beyond a reasonable doubt,” Gibson told the House committee.

“If you believe that … a state’s attorney did something improper in the way of hiding evidence or something else horrific that undermined the pursuit of justice and wrongfully impacted the person, (you) have the ability to file a claim,” he added. “There is no shortage of defendants filing claims. That happens all the time.”