Retired prosecutor struck off bar for withholding evidence says practicing law is “bloody obscenity”



Retired prosecutor struck off bar for withholding evidence says practicing law is “bloody obscenity”

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A retired Maryland prosecutor told the Baltimore Sun he didn’t care when the newspaper informed him he was struck off for failing to disclose exculpatory evidence and making false statements about its contents.

Retired Harford County State Attorney Joseph Cassilly told the Baltimore Sun he had done nothing wrong by failing to disclose a 1999 report that questioned 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 care, ”Cassilly said. “I wouldn’t do anything to engage in the practice of law right now because it’s such fucked up obscenity.”

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

The Legal Profession Blog features highlights from the October 22 Maryland Court of Appeals opinion that struck Cassilly out. Bloomberg Law also has coverage.

Maryland’s highest court said that, for more than a decade, Cassilly had failed to disclose a 1999 exonerating examination of the FBI agent’s work. Cassilly also incorrectly said there was no evidence that the FBI agent gave incorrect testimony or overestimated the reliability of the hair evidence, the appeals court said.

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

The Maryland Court of Appeal said Cassilly had an obligation to disclose the evidence, even if it came to light after the Huffington trials. Cassilly had the duty of disclosure “before trial, during trial and after trial on appeal and in post-conviction proceedings in which a defendant challenges his guilt,” the court said.

The appeals court noted that it had not adopted a 2008 update to the ABA’s professional conduct rules that specifically included post-conviction obligations for prosecutors. But the duty to disclose may still apply to post-conviction hearings, the court said.

Cassilly served as deputy prosecutor in Harford County from 1977 until early 1983 when he was sworn in as elected state attorney for the county. He held this position 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-accused who said Huffington was at the scene. of murder.

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

Huffington was convicted a second time. He got a new sentencing hearing in 1991 and was sentenced to life imprisonment in 1992. His lawyers have continued to file post-conviction motions on his behalf.

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

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

The FBI then hired forensic pathologists to review cases in which the criticized examiners performed significant work for a conviction.

An examiner found that Malone’s testimony in the Huffington case was consistent with the lab report but inconsistent with his bench notes. The examiner also said that during the trial of the co-accused, Malone said that he personally performed some tests which were most likely performed by technicians.

In Huffington’s lawsuit, the examiner said he could not determine whether Malone performed the appropriate tests in a scientifically acceptable manner. Malone had matched or eliminated some hair without describing the microscopic characteristics seen in the evidence and control samples, the reviewer said.

Cassilly received a copy of the new exam, nicknamed the Robertson Report for the Examiner’s name, in October 1999. He did not provide a copy to Huffington’s attorney.

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

Cassilly sought permission to destroy forensic evidence in the Huffington case in 2003, but a court dismissed the request.

Huffington filed a motion for a summons of innocence in November 2010, citing a report from the National Academy of Sciences concluding that there is no scientific support for the use of hair comparison for individual identifications in l ‘lack of DNA testing. The petition also cited the 1997 report finding that Malone gave false or misleading testimony before the congressional committee.

Cassilly still did not disclose the 1999 review. Instead, he filed a response to the motion stating: “No evidence has been presented that the finding that Examiner Malone made in court no. is not correct. References that Malone was found to be deficient in another case may be offensive, but it does not prove that his submissions in that case are incorrect. “

Cassilly testified that when the motion for a writ of innocence was filed, he no longer had a copy of the subsequent report and could not remember the details. During a brief of innocence hearing, Cassilly said his office received a letter from the FBI stating that it had reviewed Malone’s testimony in the case.

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

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

A court ordered a new trial for Huffington in 2013. In 2014, a special attorney for the Department of Justice said that Malone’s testimony about hair comparisons in the Huffington case “goes beyond the bounds of science.”

Cassilly obtained copies of the special advocate’s findings in the Huffington and co-accused case. He did not pass the information on to Huffington’s attorneys.

In November 2017, Huffington pleaded for murder by Alford which limited his sentence to the length of his sentence. Huffington filed an ethics complaint a year later.

Cassilly agreed to make a statement to the bar lawyer investigating him for failure to disclose evidence, but refused to make the affidavit. Cassilly explained why during the disciplinary hearing.

“I said you don’t ask me about stuff from 20 years ago and then criticize me or try to get me out of the woods on some sort of perjury charge because I couldn’t remember precisely what we were talking about 20 years ago, ”he said. .

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

“This lawyer disciplinary proceeding involves a lawyer who, in his capacity as prosecutor, has knowingly and intentionally failed to disclose for more than a decade exculpatory evidence that has come to light after the conviction of an accused, the claims dismissed. evidence, knowingly made false statements of fact to a court and a defense attorney regarding the content of the evidence, opposed the defendant’s post-conviction motions, and sought to have the forensic evidence destroyed. ‘subject of the defendant’s request for post-trial review and, during the bar counsel’s investigation, failed to comply with a subpoena to make an affidavit.

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