The prosecution’s willful failure to disclose potentially exculpatory evidence to the defense requires dismissal of the criminal charges only when a new and fair trial is impossible, Maryland’s second-highest court ruled Wednesday.
The Court of Special Appeals held in its reported opinion that a fair trial is not possible when the withheld evidence has either been destroyed or cannot be introduced due to procedural rules, such as a lack of corroborating testimony.
In such cases, the evidence’s absence causes “irreparable prejudice” to the defendant, necessitating the dismissal of charges because “no less drastic alternative is available” to the state, the appellate court said in its 3-0 ruling.
The court rendered its decision in upholding Jonathan D. Smith Sr.’s no contest plea last year to first-degree felony murder and daytime housebreaking in the 1987 stabbing of 68-year-old Adeline Curry Wilford in the kitchen of her home near Easton.
Smith’s plea followed a 2020 Maryland high court decision ordering a new trial for Smith after it was discovered that prosecutors failed to tell defense counsel they had cut a deal with their star witness to get her testimony at the 2001 Talbot County Circuit Court trial at which Smith was convicted of felony murder and housebreaking and sentenced to life in prison.
About 10 years ago, Smith’s counsel filed Public Information Act requests for the recordings of pretrial conversations between Maryland State Police officers and Beverly Haddaway, Smith’s aunt and a prosecution witness. The recordings revealed Haddaway demanding and receiving the dismissal of her grandson’s drug charges in return for her testimony, according to court papers.
Haddaway testified that she saw Smith and two other men walking less than three miles from Wilford’s home on the fateful day and that Smith’s shirt was bloody.
After his plea in Talbot County Circuit Court, Smith was sentenced to life in prison, suspending all but time served, and five years’ supervised probation.
He also retained the right to argue on appeal that the charges against him should have been dismissed due to the prosecution’s failure to comply with the U.S. Supreme Court’s 1963 holding in Brady v. Maryland that constitutional due process requires that the state disclose to the defense potentially exculpatory evidence.
In upholding the plea, the Court of Special Appeals said dismissal was not required because Smith “has not shown that he has suffered irreparable prejudice that could not be corrected by a new trial.”
“The evidence that was suppressed has not been destroyed,” Judge Kathryn Grill Graeff wrote for the court.
“To be sure, as appellant (Smith) points out, the death of Ms. Haddaway, a key state’s witness against him, prevents him from using the previously suppressed … tapes to cross-examine here about the tapes, including impeaching matters revealed in her statements, such as statements that her testimony hinged on the state dismissing unrelated drug charges against her grandson,” Graeff added. “There are, however, less drastic remedies than dismissal that would provide appellant with a fair trial. Ms. Haddaway’s prior testimony against appellant could be excluded in the state’s case in chief, which the state has previously recognized is an appropriate remedy.”
The issue of when a Brady violation requires charges to be dismissed may arise if the state proceeds with a retrial of Adnan Syed, whose conviction for the 1999 strangling death of his ex-girlfriend Hae Min Lee was vacated Sept. 19 at the urging of Baltimore City State’s Attorney Marilyn J. Mosby.
Mosby said her request followed the discovery that the names of two other individuals who may have been involved in Lee’s slaying were not disclosed to the defense at the 2000 trial of Syed, whose claim of innocence was chronicled in the widely viewed 2014 podcast “Serial.”
Syed’s attorney, Assistant Maryland Public Defender Erica J. Suter, did not immediately respond Friday to a request for comment on the relevance of the Court of Special Appeals’ decision to Syed’s case.
The Court of Special Appeals addressed the Brady issue even though the state agreed that the charges against Smith should have been dismissed on due process grounds.
The court said it is “not bound by the concessions made by the parties on issues of law, which we may independently review.”
The appellate court also rejected Smith’s argument that a new trial would violate the prohibition on double jeopardy, saying that constitutional protection is available only when a conviction is reversed due to insufficient evidence.
Smith’s appellate counsel, Donald P. Salzman, did not immediately respond to messages Friday seeking comment on the court’s decision and any plans to seek review by the Court of Appeals.
Salzman is with Skadden, Arps, Slate, Meagher & Flom LLP in Washington.
The Maryland Attorney General’s office declined to comment on the decision.
Graeff was joined in the opinion by Chief Judge E. Gregory Wells and retired Judge Deborah S. Eyler, who was sitting by special assignment.
The Court of Special Appeals rendered its decision in Jonathan D. Smith Sr. v. State of Maryland, No. 283 September Term 2021.