Retired prosecutor, disbarred for withholding evidence, says law practice is 'a screwed-up obscenity'

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A retired prosecutor in Maryland told the Baltimore Sun that he didn’t “give a damn” when the newspaper informed him that he had been disbarred for failing to disclose exculpatory evidence and making false statements about its content.

Retired Harford County State’s Attorney Joseph Cassilly told the Baltimore Sun that he did nothing wrong when he failed to disclose a 1999 report that called into question the forensic work of an FBI agent who testified in one of Cassilly’s murder cases.

“I’m disappointed, but the real answer is: Do I care? I don’t give a damn,” Cassilly said. “I wouldn’t do anything to engage in the practice of law right now because it’s such a screwed-up obscenity.”

Cassilly said he had fallen into “the whole anti-criminal justice movement, where the cops are the bad guys and the prosecutors are the bad guys.”

The Legal Profession Blog has highlights from the Oct. 22 Maryland Court of Appeals opinion that disbarred Cassilly. Bloomberg Law also has coverage.

The top Maryland court said that, for more than a decade, Cassilly failed to disclose an exculpatory 1999 review of the FBI agent’s work. Cassilly also wrongly said there was no evidence that the FBI agent gave incorrect testimony or overstated the reliability of hair evidence, the appeals court said.

The 1999 review was conducted after the first and second convictions of John Norman Huffington in the 1981 double murder of Diane Becker and her boyfriend, a popular disc jockey. Cassilly was one of two prosecutors on the case.

The Maryland Court of Appeals said Cassilly had an obligation to disclose the evidence, even though it came to light after Huffington’s trials. Cassilly had the disclosure obligation “pretrial, during trial and after trial on appeal and in postconviction proceedings in which a defendant challenges guilt,” the court said.

The appeals court noted that it has not adopted a 2008 update to the ABA Model Rules of Professional Conduct that specifically included postconviction obligations for prosecutors. But the duty of disclosure can still apply to postconviction hearings, the court said.

Cassilly was an assistant state’s attorney in Harford County from 1977 until early 1983, at which time he was sworn in as the elected state’s attorney for the county. He served in that role until his retirement in January 2019.

Huffington’s first conviction was overturned in 1982. At the second trial in 1983, FBI agent Michael P. Malone was called as a witness to corroborate the testimony of a convicted co-defendant who said Huffington was at the scene of the murder.

Malone testified that hair samples recovered from the murder scene matched the hairs of Huffington, and “you could not tell them apart.” He acknowledged, however, that hair comparison could not be used for positive personal identification.

Huffington was convicted a second time. He was granted a new sentencing hearing in 1991 and received a life sentence in 1992. His lawyers continued to file postconviction petitions on his behalf.

In 1997, the FBI released a report on alleged misconduct by the FBI laboratory that criticized 13 laboratory examiners. The report included a section on allegations against Malone regarding false testimony to a congressional committee investigating a federal judge, Alcee Hastings. The report concluded that Malone testified falsely to Congress.

Huffington’s counsel received a copy of the report, as did Cassilly.

The FBI then hired forensic scientists to review cases in which the criticized examiners did work that was material to a conviction.

A reviewer found that Malone’s testimony in the Huffington case was consistent with the laboratory report but inconsistent with his bench notes. The reviewer also said that in the co-defendant’s trial, Malone testified that he personally performed some tests that were most likely conducted by technicians.

In Huffington’s trial, the reviewer said, he couldn’t determine whether Malone performed the appropriate tests in a scientifically acceptable manner. Malone had matched or eliminated some hair without describing the microscopic characteristics observed in the evidence samples and control samples, the reviewer said.

Cassilly received a copy of the new review, dubbed the Robertson Report for the reviewer’s name, in October 1999. He did not provide a copy to Huffington’s lawyer.

At his disciplinary hearing, Cassilly testified that he discarded the 1997 and 1999 reports “five years later or whatever it was,” and then he forgot about them.

Cassilly asked for permission to destroy the forensic evidence in Huffington’s case in 2003, but a court denied the request.

Huffington filed a petition for a writ of actual innocence in November 2010, citing a report by the National Academy of Sciences concluding that there is no scientific support for the use of hair comparison for individual identifications in the absence of DNA testing. The petition also cited the 1997 report concluding that Malone had given false or misleading testimony before the congressional committee.

Cassilly still did not disclose the 1999 review. Instead, he filed a response to the petition stating: “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.”

Cassilly testified that, when the petition for a writ of actual innocence was filed, he no longer had a copy of the later report and didn’t recall the details. At a hearing on the writ of actual innocence, Cassilly said his office did receive a letter from the FBI indicating that it had reviewed Malone’s testimony in the case.

The FBI indicated that Malone’s “testimony was appropriate, that he did not overstate the case,” Cassilly said.

A Washington Post reporter obtained the 1999 review through a Freedom of Information Act request. Huffington’s lawyer cited the newly discovered evidence. The FBI then performed DNA evidence on the hair samples that excluded Huffington as the source of the hairs.

A court ordered a new trial for Huffington in 2013. In 2014, a special counsel to the Department of Justice said Malone’s testimony about hair comparisons in Huffington’s case “exceeds the limits of the science.”

Cassilly got copies of the special counsel’s conclusions in the case of Huffington and his co-defendant. He did not forward the information to Huffington’s lawyers.

In November 2017, Huffington entered Alford pleas to murder that limited his sentence to time served. Huffington filed an ethics complaint a year later.

Cassilly agreed to make a statement to the bar counsel investigating him for failure to disclose the evidence but refused to give the statement under oath. Cassilly explained why at the disciplinary hearing.

“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,” he said.

The Maryland Court of Appeals summed up the case at the beginning of its opinion.

“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.”

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