Friday, October 22, 2021

Former Prosecutor Disbarred

The Maryland Court of Appeals has disbarred a former prosecutor for failing to disclose exculpatory evidence

This attorney discipline proceeding involves a lawyer who, in his capacity as a prosecutor, knowingly and intentionally failed to disclose for more than a decade exculpatory evidence that came to light after a defendant’s conviction, discarded the evidence, knowingly made false statements of fact to a court and defense counsel concerning the content of the evidence, opposed the defendant’s postconviction petitions and sought to have forensic evidence that was the subject of the defendant’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.

Joseph Ignatius Cassilly, Respondent, a member of the Bar of Maryland, served as an Assistant State’s Attorney in Harford County from 1977 until January 3, 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 Norman Huffington for the murder of two people. As State’s Attorney, Cassilly represented the State in various postconviction proceedings in Huffington’s case and after many years of such proceedings, in 2018, Huffington filed a complaint against Cassilly with Bar Counsel.

The oath issue

At the disciplinary hearing, Cassilly acknowledged that he refused to take the oath, stating: “I said you are not asking me about stuff from 20 years ago and then criticizing me or trying to pull me up on some sort of perjury charge because I couldn’t remember accurately what we were talking about from 20 years ago.”

The refusal violated Rule 8.1. 

The forensic analysis came into issue when the hair analysis expert opined in the Alcee Hastings investigation and his testimony was called into question. 

The Department of Justice initiated a review

In connection with the task force, the FBI hired forensic scientists to conduct independent reviews of cases in which the work of examiners criticized by the OIG was material to a conviction. This included Huffington’s case. Steve Robertson, a hair and fiber analyst hired by the FBI, was assigned to review Agent Malone’s conduct in Huffington’s case. Robertson reviewed Agent Malone’s July 15, 1981 report in Huffington’s case, Agent Malone’s bench notes, eighty evidence specimens, and Agent Malone’s testimony at Huffington’s and Kanaras’s trials. On September 16, 1999, Robertson issued a report with findings and conclusions entitled “Independent Case  Review Report” (“the Robertson Report”). According to the hearing judge, in the 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.”

As to that report

Cassilly did not provide a copy of the Robertson Report to Huffington’s counsel. According to the hearing judge, at the disciplinary hearing, Cassilly testified that he “kept the 1997 Report and the Robertson Report for five years and then discarded them and forgot about them.” The hearing judge found that Cassilly did not maintain a copy of either the 1997 Report or the Robertson Report in the State’s file.

The court held that the duties of Rule 3.8(d) apply in a post-conviction proceeding

There is no indication in the rulemaking history of our Rule 3.8 that language similar to the language added to ABA Model Rule 3.8 in sections (g) and (h) in 2008 has ever been considered by the Rules Committee or presented to this Court for consideration. In our view, ABA Model Rule 3.8(g) and (h) explicitly state what is inherent in Rule 3.8(d). That this Court has not adopted such language is no indication whatsoever that the Rules Committee and the Court did not intend Rule 3.8(d) to apply to postconviction proceedings, given that the rulemaking history for Rule 3.8(d) does not demonstrate that either the Court or the Rules Committee considered such an amendment and rejected it. In short, the rulemaking history does not reflect an intent that a prosecutor’s obligations under Rule 3.8(d) would not apply to disclosures required to be made postconviction.

Sanction

Foregoing the sanction of disbarment because of the circumstance that Cassilly has voluntarily assumed inactive/retired status with the Client Protection Fund would ignore the basic tenet that a sanction is imposed not to punish an attorney “but instead to protect the public and the public’s confidence in the legal profession.” Slate, 457 Md. at 646, 180 A.3d at 155 (citation omitted). We accomplish those goals by “deterring other lawyers from engaging in similar misconduct” and “suspending or disbarring a lawyer who is unfit to continue to practice law.” Id. at 646, 180 A.3d at 155 (citation omitted). In this case, disbarment recognizes the seriousness of Cassilly’s misconduct and serves the goal of protecting the public and ensuring the public’s confidence in the legal profession by deterring other attorneys from engaging in similar misconduct. Moreover, in imposing the sanction of disbarment, we protect the public by curtailing Cassilly’s ability to resume active attorney status (which would not require the permission of this Court) or to practice law in accord with Maryland Rule 19-605(b)(2) while in inactive/retired status.

For the reasons set forth herein, we disbar Cassilly. Although Cassilly is in inactive/retired status, his disbarment will be effective immediately.

The Washington Post reported on the bar charges

On Memorial Day 1981, police found Diane Becker, 21, stabbed and beaten to death with a bottle in her camper home in an Abingdon RV park. Police found her boyfriend, Joseph Hudson, a popular local disc jockey, shot to death a few miles away.

Cassilly twice prosecuted John Norman Huffington for the murders, but he was twice granted new trials. In 2017, the two men reached a plea deal and Huffington was released after serving 32 years in prison.

The Attorney Grievance Commission, which investigates complaints against attorneys, alleges Cassilly intentionally suppressed reports and letters that found fault with a portion of the forensic evidence.
 
Cassilly, who retired in 2019, downplayed the significance of these records.
 
“It was irrelevant and did not bear on the overwhelming evidence against this guy,” Cassilly told the Sun.
 
In November 2018, Huffington filed a complaint against Cassilly to launch the commission’s investigation.
 
“It’s about the truth, and it’s about maintaining the integrity of our system,” Huffington said.

 

Ropes & Gray represented  Mr. Huffington in the post-conviction proceedings. He eventually took an Alford plea in exchange for time served. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/10/former-prosecutor-disbarred.html

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