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Prosecutors must disclose exculpatory evidence post-conviction under new rule

Maryland prosecutors must notify a judge or local state’s attorney if they discover evidence that a convict likely did not commit the crime, under a rule the state’s top court has unanimously adopted following the disbarment of a longtime Harford County state’s attorney.

The Court of Appeals’ rule, adopted last month, was spurred by its October 2021 disbarment of retired chief prosecutor Joseph I. Cassilly for failing to disclose potentially exculpatory evidence that first came to light nearly 20 years after a man’s murder conviction.

In disbarring Cassilly, the high court stated that a prosecutor’s duty to disclose potentially exculpatory evidence to the defense does not necessarily end with the trial, as the U.S. Supreme Court held in its 1963 decision Brady v. Maryland. Rather, the obligation could extend beyond conviction, the court said.

The Court of Appeals, however, did not set forth the standards and procedures for when and how prosecutors must disclose potentially exculpatory evidence post conviction, leaving that to the Judiciary’s Standing Committee on Rules of Practice and Procedure.

The high court adopted the committee’s recommended rule, which calls on prosecutors to “seek to remedy the conviction” if they know of “clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit.”

The rule, which goes into effect Jan. 1, also applies when a prosecutor “knows of new, credible and material evidence creating a reasonable likelihood” that the convict did not commit the crime.

RELATED: Maryland high court disbars former Harford state’s attorney

In such a case, the prosecutor must tell the circuit court and local state’s attorney.

If the conviction occurred in their county, the prosecutor must disclose the evidence to the defense unless a court authorizes a delay. The prosecutor must also “undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit,” states the rule, which is modeled on an American Bar Association standard.

A comment affixed to the rule excuses prosecutors who conclude “in good faith” that the evidence was not sufficiently exculpatory to require disclosure, even if it is later discovered that the prosecutor’s conclusion was wrong.

The chief prosecutors for Montgomery and Baltimore counties on Thursday welcomed but questioned the need for a specific rule on post-conviction disclosure of potentially exculpatory evidence.

“The duty of a prosecutor to disclose Brady material is an ongoing obligation,” Montgomery County State’s Attorney John McCarthy said.  “I always thought it was our duty, anyway.”

Baltimore County State’s Attorney Scott D. Shellenberger said that he, too, “always considered it to be a continuing obligation that goes on forever.”

The new rule simply makes the obligation “crystal clear,” he added.

Cassilly, according to the high court’s opinion on his disbarment, failed to disclose to the defense a 1999 U.S. Justice Department report that raised serious questions about the accuracy of the forensic test FBI agent Michael Malone conducted on hair taken from the Harford County scene where John Huffington allegedly killed Diane Baker and Joseph Hudson in 1981 – a crime for which Huffington was convicted later that year.

Cassilly, who served as state’s attorney from 1983 to 2019, also failed to disclose a July 2014 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,” the opinion stated.

The high court rejected Cassilly’s argument that the Justice Department report was not exculpatory in light of the clear evidence that Huffington brutally murdered Baker and Hudson.

The then-existing rule regarding prosecutors’ conduct “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,” Judge Shirley M. Watts wrote for the court. “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.”

Thus, “a prudent prosecutor will err on the side of transparency, resolving doubtful questions in favor of disclosure,” Watts added in Attorney Grievance Commission v. Joseph I. Cassilly, Misc. Docket AG 31, September Term 2020.

Watts complimented the standing committee on its rule, saying it “gave effect to the court’s ruling, or holding, in the Cassilly case.”

Huffington, though granted a new trial, ultimately pleaded no contest on Nov. 9, 2017, 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 more than 30 years he had served in prison.

A year later, Huffington filed a complaint against Cassilly with Maryland bar counsel, which investigated and brought ethics charges against the former prosecutor.