Administering Justice: Maryland Interprets Rule 3.8(d)

In 1983, the American Bar Association (ABA) adopted Model Rule of Professional Conduct 3.8(d), addressing the special responsibilities of a prosecutor to disclose certain evidence and information favorable to the defense. The interpretation and application of Rule 3.8(d) have been the subject of debate and dissonance. In a case of first impression, the Court of Appeals of Maryland recently considered the scope of its version of ABA Model Rule 3.8(d): Rule 19-303.8(d) of the Maryland Attorneys’ Rules of Professional Conduct (hereinafter Rule 3.8(d)) and held that a prosecutor’s duty to disclose exculpatory evidence continues post-conviction. In Attorney Grievance Commission of Maryland v. Cassilly, the court disbarred a former elected state’s attorney for failing to disclose exculpatory evidence that came to light more than 15 years after the defendant’s conviction, for destroying the evidence, and for making misrepresentations about the evidence to the trial court. Prior to the Court of Appeals’ opinion in Cassilly, no state supreme court or federal court had addressed whether a prosecutor’s ethical duty to disclose information favorable to the defense applies to information that the prosecutor only learns of after the defendant’s last direct appeal has been exhausted.

The Pertinent Facts

Beginning in 1981, Joseph I. Cassilly, first as an assistant state’s attorney and later as the elected state’s attorney for Harford County, Maryland, prosecuted John N. Huffington for the murders of Diane Becker and her boyfriend, Joseph Hudson Jr. Following a jury trial, Huffington was convicted and sentenced to death. The appellate court reversed the judgments of conviction and remanded the case for a new trial. At the second trial, the state called Federal Bureau of Investigation (FBI) Agent Michael P. Malone to testify as an expert in microscopic hair analysis. Malone testified that hair samples recovered from the crime scene “were indistinguishable from Mr. Huffington’s head hairs; you could not tell them apart.” Huffington was again convicted and sentenced to death.

Between the second conviction in 1983 and 1998, Huffington sought a variety of post-conviction relief. In 1991 Huffington was granted a new sentencing hearing and sentenced to life imprisonment. In 1998 the U.S. Court of Appeals for the Fourth Circuit affirmed the federal district court’s denial of Huffington’s application for a writ of habeas corpus. At that point, Huffington had exhausted his standard post-conviction remedies.

In 1997, the Department of Justice (DOJ) Office of the Inspector General issued a report entitled “The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases” (hereinafter 1997 Report), which criticized the work of 13 FBI Laboratory examiners, including Malone. The 1997 Report included allegations by William Tobin, another FBI examiner, that Malone had testified falsely in an unrelated case and presented potentially exculpatory evidence as incriminating. The 1997 Report stated:

Based on our investigation, we conclude that Malone, in his 1985 testimony before the Investigating Committee, falsely testified that he had himself performed the tensile test and that he testified outside his expertise and inaccurately concerning the test results. The OIG questioned Malone about Tobin’s allegations and, to his credit, Malone agreed with many points that Tobin had raised. Malone maintained, however, that he was justified in giving certain testimony because he was offering his own personal opinions rather than expert opinions. This is not a persuasive rationale for the presentation of inaccurate testimony by a Laboratory examiner.

In 1997, DOJ established a task force to analyze disclosure issues arising from the 1997 Report. DOJ sent Cassilly a copy of the 1997 Report and requested that he contact the task force. Huffington’s counsel also received a copy of the report. Cassilly contacted the task force and advised that he had originally requested that the FBI laboratory retest the evidence in Huffington’s case but he “reconsidered and decided to wait to see what the defense [would] do since it has received a copy of the report.”

As a result of the 1997 Report, the FBI hired forensic scientists to conduct independent reviews of cases in which the work of the criticized examiners was material to a conviction. Steve Robertson, a hair and fiber analyst, was assigned to review Malone’s work in Huffington’s case. On September 16, 1999, Robertson issued his “Independent Case Review Report” criticizing Malone’s work in Huffington’s case. Among other things, Robertson stated that he was unable to determine whether Malone performed the appropriate tests in a scientifically acceptable manner and that Malone’s examination results as set forth in the laboratory report were not supported or adequately documented in the bench notes. Robertson found that Malone’s testimony at Huffington’s trial was consistent with the laboratory report but inconsistent with his bench notes and that Malone testified that he personally performed certain tests that were most likely performed by laboratory technicians.

In October 1999, DOJ sent the Robertson Report to Cassilly and requested that he review the report to determine whether it should be disclosed to Huffington or his counsel. Cassilly did not provide the Robertson Report to Huffington. At the disciplinary hearing, Cassilly testified that he kept the 1997 Report and the Robertson Report for five years and then discarded them.

In 2003, Huffington filed a “Petition to Preserve Forensic Evidence and Conduct DNA Analysis,” seeking to test the hairs that Malone found to be microscopically similar to Huffington’s. At the time, Huffington and his counsel were unaware of the Robertson Report. Cassilly filed an opposition to the petition and requested permission from the court to destroy the forensic evidence in Huffington’s case. The court denied Cassilly’s request to destroy the evidence and granted Huffington’s request to preserve the evidence and conduct DNA testing on the hairs. Huffington subsequently dismissed his petition because his expert could not determine which hairs Malone matched to Huffington’s.

In 2010, Huffington filed a “Petition for Writ of Actual Innocence,” asserting that the evidence used to convict him, namely Malone’s hair and fiber analysis and the comparative bullet lead analysis, was unreliable. Huffington relied on scientific reports and the 1997 Report’s findings regarding Malone’s false testimony in an unrelated matter. In 2010, Huffington and his counsel were still unaware of the Robertson Report. In his response to the petition, Cassilly stated:

No evidence has been presented that the conclusion that examiner Malone rendered in court is not correct. References that Malone was found deficient in another case may be impeaching but it does not prove that his observations in this case are incorrect.

At a hearing on Huffington’s petition, Cassilly falsely told the trial court that he had received a letter from the FBI indicating that Malone’s testimony in Huffington’s case was appropriate. At the disciplinary hearing, Cassilly argued that he was recalling “the gist” of a report that he had not seen for 11 years and that his characterization of the report was a fair interpretation of a “confusing, check-the-box unexplained document.”

In November 2011, a reporter from the Washington Post received a copy of the Robertson Report in response to a Freedom of Information Act request and provided it to Huffington’s counsel. Huffington supplemented his “Petition for Writ of Actual Innocence” with the Robertson Report. In the meantime, the trial court directed Cassilly to determine if the FBI could perform DNA testing on the hair samples. On March 27, 2013, the FBI issued a DNA report concluding that Huffington was excluded as the source of the hairs at issue. The court granted Huffington’s petition and ordered a new trial for both murder charges. Although the DNA test results rendered the arguments regarding Malone’s testimony moot, in its written opinion granting the petition, the court noted that Malone’s testimony was a key piece of evidence used to connect Huffington to Becker’s murder.

In 2014, Cassilly received a letter from DOJ stating that Malone’s testimony in Huffington’s case exceeded the limits of science and was invalid. Cassilly did not provide a copy of the letter to Huffington or his counsel.

Huffington’s third trial was scheduled for April 2017. Even though the 2014 DOJ letter was responsive to Huffington’s discovery requests and material required to be disclosed pursuant to the Maryland Rules of Criminal Procedure, Cassilly did not produce the 2014 letter. Cassilly also continued to misrepresent the contents of the Robertson Report and the 2014 DOJ letter to the trial court. In the disciplinary case, Cassilly argued that his failure to produce the 2014 DOJ letter was not a discovery violation because he did not intend to call Malone as a witness at the 2017 trial.

In November 2017, Huffington entered Alford pleas to two counts of first-degree murder and other related counts. The plea agreement provided that Huffington would receive two concurrent life sentences suspended with all but time served (11,752 days).

Battle of the Experts

In 2018 Huffington filed a complaint with the Attorney Grievance Commission of Maryland asserting that Cassilly had repeatedly and intentionally withheld exculpatory evidence in his case. In 2020 the Attorney Grievance Commission, acting through Bar Counsel, filed a “Petition for Disciplinary or Remedial Action” against Cassilly, charging him with violating various rules of professional conduct, including Rule 3.8(d), in connection with his prosecution of Huffington.

In support of the Rule 3.8(d) charge, Bar Counsel argued that (1) the Robertson Report was exculpatory or “tended to negate the guilt of the accused”; (2) Rule 3.8(d) applies post-conviction; and (3) Rule 3.8(d) does not have a “materiality” requirement as defined in Brady v. Maryland and its progeny. Bar Counsel and Cassilly designated experts who testified at the evidentiary hearing. The experts offered competing opinions as to whether the Robertson Report was exculpatory and whether Rule 3.8(d) required Cassilly to disclose the report.

Bar Counsel’s expert testified that the Robertson Report constituted exculpatory and impeachment evidence that Cassilly was required to disclose under Rule 3.8(d). He testified that the requirement of a prosecutor to disclose information that tends to negate the guilt of the accused is a “very low standard” and is far lower than the Brady materiality requirement. He asserted that the Robertson Report tended to negate Huffington’s guilt by detracting from a key piece of forensic evidence used by the state to place Huffington at the scene of the crime.

Cassilly’s expert testified that the Robertson Report did not constitute exculpatory evidence that needed to be disclosed under Rule 3.8(d) and that the analysis of what is exculpatory is different depending on whether the obligation to disclose arises pretrial or posttrial. He asserted that the Robertson Report simply criticized Malone’s documentation and did not say that Malone’s conclusions were wrong. Therefore, Cassilly was not obligated to disclose the information that came out about Malone after Huffington was convicted.

The Court’s Holding

In October 2021, the Court of Appeals of Maryland issued its opinion disbarring Cassilly for violating Rule 3.3(a)(1) (Candor Towards the Tribunal), Rule 3.4(a) (Fairness to Opposing Party and Attorney), Rule 3.8(d) (Special Responsibilities of a Prosecutor), Rule 8.1(b) (Bar Admission and Disciplinary Matters), and Rule 8.4(a), (c), and (d) (Misconduct). The court found that Cassilly made repeated misrepresentations to the trial court regarding the Robertson Report and the 2014 DOJ letter. The court also found that Cassilly improperly disposed of the Robertson Report and then sought to destroy the evidence that was the subject of the report.

With respect to Cassilly’s disclosure obligations, the Court of Appeals of Maryland considered, for the first time, the application and scope of Rule 3.8(d). In finding that Cassilly violated the rule when he failed to provide the Robertson Report to Huffington and his counsel, the court determined that the Robertson Report was exculpatory and tended to negate Huffington’s guilt because it detracted from a key piece of forensic evidence used by the state to place Huffington at the scene of the crime. Cassilly asserted that the Robertson Report was not exculpatory because it was an ambiguous and confusing “check-the-box unexplained document.” The court rejected Cassilly’s argument holding that the Robertson Report contained information that “in no uncertain terms undermined the validity of Malone’s testimony and the accuracy of his conclusions in Huffington’s case.”

Based on the plain language of Rule 3.8(d), the court also concluded that the duty to disclose applies pretrial, during trial, and post-conviction. The court expressly found that even though there were no pending proceedings at the time he received the Robertson Report, Cassilly was required to disclose the report to the defense. The court further held that Cassilly had a heightened duty to disclose the exculpatory report in 2003 when Huffington filed his petition to conduct DNA testing and preserve the forensic evidence in the case, and in 2010 when he filed his “Petition for Writ of Actual Innocence.”

In reaching its conclusion, the court reviewed the history of ABA Model Rule 3.8 and Maryland’s equivalent and stated:

What can be gleaned from our rulemaking history is that the plain language of Rule 3.8(d) containing the requirement that a prosecutor “make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense” applies to a prosecutor’s obligation to make disclosures postconviction. From our perspective, it would not be consistent with the plain language of Rule 3.8(d), Comment [1] to the Rule, the Supreme Court’s holding in [Imbler v. Pachtman, 424 U.S. 409 (1976)], or our case law concerning Brady to construe Rule 3.8(d) to apply only to pretrial or trial disclosures.

In the court’s view, the amendments to the ABA Model Rule in 2008 setting forth post-conviction obligations for prosecutors in subsections (g) and (h) expressly stated what was already inherent in subsection (d). The court also referred the matter to the Maryland Standing Committee on Rules of Practice and Procedure to consider similar amendments.

Unresolved Issues

Although the Court’s holding in Cassilly confirms that Rule 3.8(d) is broader than Brady because it applies post-conviction, the court did not reach the issue of whether Rule 3.8(d) requires materiality—a determination that the result would have been different if the suppressed evidence had been disclosed.

Bar Counsel argued that the Brady materiality standard should not apply when determining whether a prosecutor withheld evidence in violation of Rule 3.8(d). While the Brady materiality analysis is necessary to determine whether a defendant’s constitutional rights were violated such that the defendant is entitled to a new trial, no such “after-the-fact, look-back analysis” is required when considering whether a prosecutor failed to disclose exculpatory evidence in violation of Rule 3.8(d).

The court, without extensive discussion, determined that the Robertson Report was material because Malone’s testimony constituted key forensic evidence linking Huffington to the crime and was emphasized to the jury by the state. Therefore, the court concluded that it did not need to determine whether Rule 3.8(d) requires a prosecutor to disclose evidence that tends to negate guilt when the evidence is not necessarily “material” under Brady. In his concurring opinion, Judge Robert N. McDonald, now retired, reiterated that the court did not reach the conclusion that the scope of Rule 3.8(d) exceeds the prosecutor’s discovery obligations under Brady and its progeny.

States remain split over whether Rule 3.8 requires a prosecutor to disclose evidence that is not necessarily “material” under Brady. Jurisdictions opposing a more expansive reading of Rule 3.8, such as Colorado, Louisiana, North Carolina, Ohio, Oklahoma, Tennessee, and Wisconsin, raise concerns that such an interpretation “would impose inconsistent obligations upon prosecutors” and lead to a situation in which a prosecutor meets his or her obligations under the constitution but is still found in violation of an ethical rule. States such as Arizona, New York, North Dakota, Texas, Utah, Virginia, and Washington, D.C., along with cities such as New York, that have adopted a more expansive reading of the rule have found that the plain language definition of Rule 3.8(d) indicates a very low bar, if any, regarding materiality. Specifically, that “information” (not necessarily “evidence”) that “tends to” negate guilt cannot be read any other way than to indicate a standard far less exacting than materiality under Brady and its progeny.

Given the state of the law, prosecutors are advised to think broadly about their obligation to seek justice and err on the side of disclosure.