The Maryland Supreme Court will consider when the prosecution’s willful failure to disclose potentially exculpatory evidence to the defense requires dismissal of the criminal charges.
The justices last week agreed to review an Appellate Court decision that dismissal is required only when a new and fair trial is impossible, such as when the withheld evidence has been destroyed or cannot be introduced due to procedural rules, such as lack of corroborating testimony.
The high court will hear Jonathan D. Smith’s appeal of his no contest plea in 2021 to first-degree felony murder and daytime housebreaking in the 1987 stabbing death of 68-year-old Adeline Curry Wilford in the kitchen of her home near Easton.
Smith’s plea followed a 2020 Maryland Supreme Court decision ordering a new trial for him 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 his 2001 Talbot County Circuit Court trial. Smith was convicted of felony murder and housebreaking, and was sentenced to life in prison.
Under his plea, Smith was sentenced to time served. He also preserved his 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.
The Appellate Court ruled that dismissal was unwarranted because sufficient evidence remained available for trial and Smith could still muster a strong defense.
The Maryland Supreme Court granted review and has scheduled oral arguments despite the state attorney general’s concession in papers filed with the justices that the prosecution’s “conduct in this case does not comport with principles of due process, and the only appropriate remedy is dismissal of the charges.”
The high court could but has yet to appoint counsel to defend the Appellate Court’s decision when the justices hear Smith’s appeal in May.
Appellate attorney Steven M. Klepper, who is not involved in the case, said he is “glad to see” the high court’s restraint in naming an attorney.
“The Maryland Constitution gives the attorney general, not the judiciary, responsibility to ‘defend on the part of the State all cases pending in the appellate courts of the State,’ ” Klepper said, quoting from Article V § 3(a)(1).
Smith, in his successful petition for Supreme Court review, stated through counsel that dismissal is warranted because the prosecution’s “intentional, egregious misconduct” was so severe that it “shocks the conscience.”
The prosecutorial misconduct came to light about 10 years ago when 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 – a fact that Smith’s counsel said should have been disclosed.
Haddaway, who has since died, testified that she saw Smith and two men walking less than three miles from Wilford’s home on the fateful day and that Smith’s shirt was bloody.
“This (Supreme) Court should grant Mr. Smith’s petition to declare that promoting faith in the criminal justice system and deterring police and prosecutors from engaging in egregious misconduct are necessary considerations for courts in fashioning remedies for egregious due process violations like those that occurred here,” wrote Smith’s appellate attorney, Donald P. Salzman.
Salzman objected to the Appellate Court’s decision that dismissal of the charges was not warranted because a fair trial could still be had by excluding Haddaway’s prior, more than 20-year-old testimony from being introduced.
“No prosecutor should be incentivized to disregard their ethical responsibilities and gain the type of advantage the state achieved here by depriving a defendant of his confrontation rights through suppression, the passage of time, and the fading memories, or deaths, of key witnesses,” wrote Salzman, of Skadden, Arps, Slate, Meagher & Flom LLP in Washington. “Here, two decades worth of intentional Brady violations and false statements appear to have paid off, because all the state’s remaining key witnesses would be able to effectively escape cross-examination on the full extent of Haddaway and the state’s collusion.”
Assistant Maryland Attorney General Daniel J. Jawor responded in court papers that dismissal is in order.
“In this extraordinary case, the record establishes the necessary elements for a due process violation: flagrant misconduct, substantial prejudice, and a showing that no lesser remedy than dismissal is available,” Jawor wrote to the high court. “For these reasons, the state agrees with Smith that dismissal on due process grounds is the appropriate remedy.”
The Supreme Court is expected to render its decision by Aug. 31 in the case, Jonathan D. Smith v. State of Maryland, No. 31, September Term 2022.