Attorney Grievance v. Cassilly

Attorney Grievance Commission of Maryland v. Joseph Ignatius Cassilly, Misc. Docket

AG No. 31, September Term, 2020

ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT – Court of Appeals

disbarred lawyer who, in his capacity as prosecutor, knowingly and intentionally failed to

disclose for more than decade exculpatory evidence that came to light after defendant’s

conviction, discarded evidence, sought to have forensic evidence in case destroyed,

knowingly made false statements of fact to court and defense counsel concerning content

of evidence, and, during Bar Counsel’s investigation, failed to comply with subpoena to

provide statement under oath. Such conduct violated Maryland Lawyers’ Rules of

Professional Conduct/Maryland Attorneys’ Rules of Professional Conduct 3.3(a)(1)

(Candor Toward Tribunal), 3.4(a) (Fairness to Opposing Party and Counsel), 3.8(d)

(Special Responsibilities of Prosecutor), 8.1(b) (Failing to Respond to Lawful Demand for

Information), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct

that is Prejudicial to Administration of Justice), and 8.4(a) (Violating Rules of Professional

Conduct).

Circuit Court for Harford County

Case No. C-12-CV-20-000648

Argued: September 9, 2021

IN THE COURT OF APPEALS

OF MARYLAND

Misc. Docket AG No. 31

September Term, 2020

______________________________________

ATTORNEY GRIEVANCE COMMISSION

OF MARYLAND

v.

JOSEPH IGNATIUS CASSILLY

______________________________________

Getty, C.J.

McDonald

Watts

Hotten

Booth

Biran

Battaglia, Lynne A. (Senior

Judge, Specially Assigned)

JJ.

______________________________________

Opinion by Watts, J.

Concurring opinion by McDonald, J.

______________________________________

Filed: October 22, 2021

Pursuant to Maryland Uniform Electronic Legal

Materials Act

(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2022-06-15 15:03-04:00

Suzanne C. Johnson, Clerk

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 postconviction1 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.

On September 8, 2020, on behalf of the Attorney Grievance Commission, Petitioner,

Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against

1

For purposes of this opinion, when we use the word “postconviction,” we are not

referring exclusively to a petition filed under the Uniform Postconviction Procedure Act,

Md. Code Ann., Crim. Proc. (2001, 2018 Repl. Vol.) §§ 7-101 to 7-301. The term

encompasses a variety of petitions for relief that a defendant may file after conviction.

Cassilly, charging him with violating Maryland Lawyers’ Rules of Professional Conduct

(“MLRPC”) and Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)

3.3(a)(1) (Candor Toward the Tribunal), 3.4(a) (Fairness to Opposing Party and Counsel),

3.8(d) (Special Responsibilities of a Prosecutor), 8.1(a) (False Statement of Material Fact),

8.1(b) (Failing to Respond to a Lawful Demand for Information), 8.4(c) (Dishonesty,

Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the

Administration of Justice), and 8.4(a) (Violating the Rules of Professional Conduct).2

On September 17, 2020, this Court designated the Honorable Barbara K. Howe (“the

hearing judge”) to hear the attorney discipline proceeding in the Circuit Court for Harford

County. On February 3, 4, and 5, 2021, the hearing judge conducted a remote hearing via

Zoom for Government.3 On March 10, 2021, the hearing judge filed in this Court an

opinion including findings of fact and conclusions of law, concluding that Cassilly had

violated Rules 3.3(a)(1), 3.4(a), 3.8(d), 8.4(c), 8.4(d), and 8.4(a), but had not violated Rule

2

Prior to July 1, 2016, the MLRPC were contained in an appendix to Maryland Rule

16-812. Effective July 1, 2016, the MLRPC were renamed the MARPC and relocated to

Title 19 of the Maryland Rules and renumbered, without substantive change. See Md. R.

19-300.1 to 19-308.5. The misconduct at issue in this case occurred both before and after

the change. Because both versions of the Rules are applicable and there is no substantive

difference between the two, in this opinion, we refer to the charged violations, including

those that are alleged to have occurred after July 1, 2016, by the form used in the MLRPC

(e.g., MLRPC/MARPC 3.3(a)(1) will be referred to as Rule 3.3(a)(1)).

3

Pursuant to an Administrative Order of March 13, 2020, due to the COVID-19

emergency, Maryland courts were closed; and certain mandatory/emergency matters were

designated to continue to be scheduled and heard either in person or remotely. Pursuant to

an Administrative Order of June 3, 2020, the Judiciary began a progressive resumption of

operations including the scheduling and hearing of Attorney Grievance Commission cases,

with the continued authorization to conduct remote proceedings.

-2-

8.1.4

On September 9, 2021, we heard oral argument. For the below reasons, we disbar

Cassilly.

BACKGROUND

The hearing judge found the following facts, which we summarize.

On June 28, 1977, this Court admitted Cassilly to the Bar of Maryland. Cassilly

served as an Assistant State’s Attorney in Harford County, Maryland from 1977 until

January 3, 1983, when he was sworn in as the elected State’s Attorney for Harford County.

Cassilly served as the State’s Attorney for Harford County from that date until his

retirement in January 2019. After retiring, Cassilly voluntarily assumed “inactive/retired”

status pursuant to Maryland Rule 19-605(b).5

State v. John Norman Huffington

First Trial

On May 25, 1981, Diane Becker was found murdered in her trailer in Harford

County. The body of Joseph Hudson, Jr., Becker’s boyfriend, was found on a dirt road

nearby. Hudson had been shot several times.

4

Although the hearing judge did not specify which section of Rule 8.1 Cassilly had

not violated, it is evident from the circumstances involved that the hearing judge concluded

Cassilly had not violated Rule 8.1(b), which proscribes a knowing failure to respond to a

lawful demand for information from Bar Counsel. At oral argument in this Court, Deputy

Bar Counsel advised that Petitioner is not pursuing the charged violation of Rule 8.1(a).

As such, we do not address the matter.

5

Maryland Rule 19-605(b)(1) provides: “The trustees of the [Client Protection]

Fund may approve attorneys, other than attorneys on permanent retired status pursuant

to Rule 19-717.1, for inactive/retired status, and, by regulation, may provide a uniform

deadline date for seeking approval of inactive/retired status.”

-3-

On June 16, 1981, a grand jury in Harford County indicted Huffington on two counts

of first-degree murder and related offenses in connection with the deaths of Becker and

Hudson. On July 28, 1981, the grand jury also indicted a person named Deno C. Kanaras

on two counts of first-degree murder and related offenses in connection with the deaths.

Kanaras admitted that he was present at the time of the murders but alleged that it was

Huffington who murdered Becker and Hudson.

Huffington and Kanaras were tried separately. At Huffington’s request, venue was

transferred to the Circuit Court for Caroline County. Huffington’s trial occurred from

November 3 to 13, 1981. Assistant State’s Attorney Gerard S. Comen served as lead

counsel with Cassilly serving as second chair. Huffington was represented by the Office

of the Public Defender. At trial, Kanaras testified as a witness on the State’s behalf.

Huffington was convicted of two counts of felony murder and was sentenced to death.

Huffington appealed and, on December 6, 1982, this Court reversed the judgments of

conviction.6

Second Trial

On remand, venue was changed to the Circuit Court for Frederick County. From

November 8 through 19, 1983, Huffington’s second trial occurred. Cassilly and Comen

represented the State again. Kanaras was the only eyewitness to the murders and again

testified on the State’s behalf. By the time of Huffington’s second trial, Kanaras had been

convicted of Becker’s murder. At the second trial, the State called Federal Bureau of

6

In Huffington v. State, 295 Md. 1, 16, 452 A.2d 1211, 1218 (1982), this Court

reversed the judgments of conviction and remanded the case for a new trial.

-4-

Investigation (“FBI”) Agent Michael P. Malone as an expert in forensic testing to

corroborate Kanaras’s testimony that Huffington was at the scene of Becker’s murder.

Agent Malone testified that hair samples recovered from Becker’s trailer “microscopically

matched the head hairs of Mr. Huffington – that is, they were indistinguishable from Mr.

Huffington’s head hairs; you could not tell them apart.” (Brackets omitted). When asked

on cross-examination, Agent Malone acknowledged, though, that microscopic hair

comparison cannot be utilized as a means of positive personal identification.

At the conclusion of the trial, Huffington was again convicted of two counts of

felony murder for the deaths of Becker and Hudson and sentenced to death. On November

13, 1985, this Court affirmed the judgments of conviction.7 Thereafter, Huffington filed a

series of postconviction motions. On January 13, 1988, David O. Stewart, Esq., entered

his appearance on Huffington’s behalf. From 1988 until the conclusion of the case in 2017,

Huffington was represented by Stewart’s law firm, Ropes & Gray, LLC.

On January 8, 1991, the circuit court granted, in part, a petition for postconviction

relief and ordered a new sentencing hearing. On April 28, 1992, the circuit court sentenced

Huffington to life imprisonment. Huffington filed a second petition for postconviction

relief, which was denied, and an application for leave to appeal the denial of the second

petition for postconviction relief, which was also denied. In addition, Huffington

unsuccessfully petitioned in federal court for a writ of habeas corpus.8

7

See Huffington v. State, 304 Md. 559, 596, 500 A.2d 272, 290 (1985).

8

See Huffington v. Nuth, 140 F.3d 572, 585 (4th Cir. 1998).

-5-

The 1989 Tobin Memorandum

In 1981, Alcee Hastings, a judge on the United States District Court for the Southern

District of Florida, was indicted on federal charges of conspiracy and obstruction of justice

related to an alleged bribery scheme. Hastings was alleged to have accepted $150,000 in

exchange for releasing $1.2 million dollars in funds seized from two criminal defendants

and reducing the defendants’ sentences. Hastings was acquitted. A federal judiciary

committee was appointed to investigate an ethics complaint filed against Hastings in

connection with the bribery scheme.

In 1985, as part of its investigation, the committee submitted to the FBI Laboratory

a broken purse strap that Hastings had offered as evidence during his criminal trial. The

FBI assigned Agent Malone to conduct an analysis of the purse strap. Agent Malone

believed that the purse strap had been intentionally cut. Agent Malone took the purse strap

to William Tobin, a metallurgist working in the FBI Laboratory. While Agent Malone

observed, Tobin performed tests on the purse strap using a tensile tester, a device that

measures the force necessary to break an object. On October 2, 1985, Agent Malone falsely

testified before the committee that he had conducted the tensile test.

The committee determined that Hastings had engaged in misconduct and

impeachment proceedings were begun in the United States Congress. Tobin was asked to

testify before Congress. In preparing to testify, Tobin reviewed a transcript of Agent

Malone’s testimony before the committee. As a result, in August 1989, Tobin wrote a

memorandum to his section chief raising concerns about Agent Malone’s testimony. In

the memorandum, Tobin stated that Agent Malone falsely testified that he (Agent Malone)

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had performed the tensile test on the purse strap. In addition, Tobin identified other false

statements in Agent Malone’s testimony that contradicted laboratory findings and instances

in which Agent Malone “presented apparently and potentially exculpatory information as

incriminating.” (Brackets omitted).

The 1997 Department of Justice Report

In April 1997, the Department of Justice (“the DOJ”) Office of the Inspector General

(“OIG”) issued a report entitled “The FBI Laboratory: An Investigation into Laboratory

Practices and Alleged Misconduct in Explosives-Related and Other Cases” (“the 1997

Report”). The 1997 Report criticized thirteen FBI Laboratory examiners for a number of

issues, including the quality of their work, inaccurate testimony, testimony given beyond

their level of expertise, and scientifically flawed and improperly prepared reports. The

1997 Report included a section entitled “Tobin Allegations[,]” which pertained to the

investigation of Tobin’s allegations against Agent Malone. 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.

Before the Investigating Committee, Malone testified falsely when he

responded yes to the question, did you actually, yourself, conduct this test?

In his OIG interview, Malone admitted that he was technically wrong in his

response but noted that he had been right there when the test was conducted.

Malone’s presence when the test performed does not justify his inaccurate

response to the question whether he actually conducted the test.

-7-

Malone’s testimony that he conducted the test is particularly egregious,

because he proceeded to inaccurately describe how the test was performed

and the significance of its results.

***

In the Alcee Hastings case, we find that Michael Malone testified falsely and

outside his expertise in discussing tensile tests performed by the Laboratory.

Moreover, after Tobin raised concerns about Malone’s testimony in 1989,

then [Scientific Analysis Section]-Chief Kenneth Nimmich failed to assure

that the serious allegations of examiner misconduct were appropriately

investigated and addressed.

Huffington’s counsel received a copy of the 1997 Report.

FBI Laboratory Task Force

In 1997, the DOJ established a task force to analyze disclosure issues related to the

OIG’s investigation of the FBI Laboratory. On June 18, 1997, Lucy Thompson, a senior

attorney assigned to the task force, wrote to Cassilly, enclosing a copy of the 1997 Report,

the Tobin memorandum, an article from The Wall Street Journal dated April 16, 1997, a

letter from Huffington’s attorney, Stewart, to the DOJ dated April 24, 1997, and

Thompson’s June 18, 1997 reply to Stewart. Thompson requested that, after Cassilly

reviewed the disclosures, he contact Amy B. Jabloner, who was working with the Criminal

Division of the DOJ and was assigned to the task force.9

On July 18, 1997, Cassilly spoke with Jabloner concerning Huffington’s case. After

their discussion, Jabloner drafted a memorandum to her file, stating:

Joseph Cassilly, the State’s Attorney who prosecuted the Huffington case has

decided to wait a while to see if the defense files any post-conviction motions

in this case. He had originally requested that an FBI laboratory examiner

The hearing judge noted that Jabloner’s surname after marriage is Oliver and that

9

she was called as a fact witness by Bar Counsel during the disciplinary hearing.

-8-

retest the evidence, but reconsidered and decided to wait to see what the

defense will do since it has received a copy of the [1997 R]eport. I informed

him that he can still request the scientific review and asked that he write a

memo to Sue Hayn if he decides to do so. Cassilly will request copies of the

trial transcripts from the [Attorney General]’s office.

The Robertson Report

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.” With respect to Agent Malone’s bench notes, Robertson

stated:

The notes are not dated, are in pencil and have some erasures. Some hair

were [sic] deemed unsuitable with no documented reason or explanation.

The examiner uses abbreviations that are difficult to interpret. Some

questioned hair were [sic] matched or eliminated as coming from the known

samples without characterization of the microscopic characteristics observed

in these questioned or known hair. The technicians do not document the

recovery of any hair from the questioned items.

-9-

Robertson found that Agent Malone’s testimony was consistent with the laboratory report

but inconsistent with his bench notes. In addition, Robertson stated that, based on the 1982

transcript of Kanaras’s trial, Agent Malone testified that he personally performed certain

tests that he (Robertson) had determined were most likely performed by laboratory

technicians.

On October 21, 1999, Thompson wrote to Cassilly concerning the independent

scientific review in Huffington’s case and enclosed the Robertson Report. At the time,

Huffington had exhausted all postconviction remedies. In the letter to Cassilly, Thompson

noted that Cassilly had previously been provided with the 1997 Report concerning Agent

Malone and summarized the OIG’s findings concerning his testimony in the Hastings case,

including the OIG’s conclusions that Agent Malone’s testimony had been incorrect and

misleading, that he had testified falsely regarding the tensile test, and that he had been

criticized for testifying outside of his expertise and inaccurately as to the results. In the

letter, Thompson requested that Cassilly “review the enclosed documents, the OIG report,

and any other pertinent information you may have to determine whether the report of the

independent scientist should be disclosed to the defendant or to the defendant’s counsel.”

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

- 10 -

1997 Report or the Robertson Report in the State’s file.10

The hearing judge credited the testimony of Bar Counsel’s expert witness, Andrew

V. Jezic, Esquire, who was accepted as an expert in criminal law, that the Robertson Report

was exculpatory and constituted impeachment material, and that Cassilly was obligated to

disclose the Robertson Report. The hearing judge found:

The definition of exculpatory evidence as provided in Rule 3.8(d) is all

evidence or information known to the prosecutor that tends to negate the guilt

of the accused. [] Robertson’s conclusions that he could not determine

whether Agent Malone conducted his testing in a scientifically acceptable

manner and that Agent Malone’s bench notes were inconsistent with his

testimony were relevant to the reliability and credibility of Agent Malone’s

testimony. As [] Jezic testified, the conclusion that the Robertson Report

was exculpatory is bolstered by the information the DOJ provided to

[Cassilly] regarding Agent Malone’s false testimony in the Hastings case.

[Cassilly] maintains that the disclosure of the Robertson Report was

unnecessary because the report was not exculpatory. This Court disagrees.

This Court finds that the Robertson Report tended to negate [] Huffington’s

guilt and was exculpatory. This Court further finds that [Cassilly] had a duty

to disclose the Robertson Report to defense counsel and failed to do so.

(Record citations omitted).

Petition to Preserve Forensic Evidence and Conduct DNA Analysis

On August 14, 2003, Huffington filed a “Petition to Preserve Forensic Evidence and

Conduct DNA Analysis” seeking, among things, to test “the hairs that were found at trial

to be microscopically similar to [] Huffington’s hair[.]” At the time of the filing of the

petition, Huffington’s counsel was unaware of the Robertson Report. On August 28, 2003,

10

The hearing judge rejected Cassilly’s testimony that he provided a copy of the

Robertson Report to the Innocence Project, finding that “[n]o documentation was presented

to affirm this contention.”

- 11 -

Cassilly filed an opposition to the petition and requested permission from the circuit court

to destroy the forensic evidence in Huffington’s case. At the disciplinary hearing, Cassilly

testified that he did not remember that there had been a report reviewing Agent Malone’s

testimony. The hearing judge rejected Cassilly’s testimony on this point.

The circuit court denied Cassilly’s request to destroy the evidence and granted

Huffington’s request to conduct DNA testing of the hairs found at the scene that had been

matched to Huffington. Cassilly sent the hair samples to Huffington’s expert, but the

expert was not able to identify which hairs Agent Malone had matched to Huffington. On

November 1, 2006, Huffington filed a motion to dismiss the petition to conduct the DNA

analysis. The court dismissed the petition and granted Huffington’s request that the

forensic evidence be preserved.

Petition for a Writ of Actual Innocence

On November 3, 2010, Huffington filed a “Petition for Writ of Actual Innocence.”

Huffington contended that newly discovered evidence created a significant possibility that

the result at trial would have been different. Among other things, Huffington specifically

asserted that Agent Malone’s hair and fiber analysis and the comparative bullet lead

analysis were unreliable. Huffington relied on reports issued by the National Academy of

Sciences between 2006 and 2010, which concluded that there is no scientific support for

the use of hair comparison for individual identifications in the absence of DNA testing. In

addition, Huffington maintained that new evidence had been discovered discrediting Agent

Malone as a witness based on the conclusion in the 1997 Report that Agent Malone gave

false and misleading testimony in the Hastings case. According to the hearing judge,

- 12 -

Huffington also identified other cases in which he alleged courts had determined that Agent

Malone’s testimony had been false or misleading and resulted in wrongful convictions.11

The hearing judge found that Cassilly “had a heightened duty to disclose the

Robertson Report” after Huffington filed the petition because of the information that was

available to Cassilly, but not Huffington, that “called into question the credibility of Agent

Malone’s testimony.” Instead, on January 14, 2011, Cassilly had 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.”

At the disciplinary hearing, Cassilly testified that at the time the petition for a writ

of actual innocence was filed, he no longer had a copy of the Robertson Report, did not

recall the details of the report, did not remember that the FBI performed an independent

analysis of Agent Malone’s work in Huffington’s case, and that there was nothing in the

report that challenged Agent Malone’s findings. The hearing judge rejected this testimony.

On January 20, 2011, Huffington’s counsel wrote to Cassilly, requesting that the

State produce “any and all results of investigations or examinations conducted on []

11

Huffington cited Bradgon v. Malone, 425 F. Supp. 2d 1, 4, 7 (D.D.C. 2006), as a

case in which the United States District Court for the District of Columbia rejected Agent

Malone’s claim of absolute immunity when he “withheld exculpatory evidence and

fabricated evidence during his investigation,” which, according to Huffington, resulted in

the defendant’s wrongful conviction. Huffington also cited an article from The Washington

Post dated March 14, 2010, which, he asserted, stated that Agent Malone’s inaccurate hair

analysis resulted in a wrongful conviction in another case.

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Huffington’s body or any of his clothing and/or belongings.” In a letter dated January 31,

2011, in response to the request, Cassilly denied having any discoverable materials and

advised that he was aware that “the State was always required to furnish the defense with

the results of all tests that were performed by the State[.]”

On January 28, 2011, D. Christian Hassell, Ph.D., the Director of the FBI

Laboratory, wrote to Cassilly concerning the comparative bullet lead analysis in

Huffington’s case. In the letter, Dr. Hassell stated that the laboratory reviewed the

examiner’s testimony regarding the comparative bullet lead analysis in Huffington’s case

and that the testimony was proper. On February 23, 2011, Cassilly supplemented the

State’s answer to the petition with Dr. Hassell’s letter, asserting that the letter was “relevant

to the issues raised[.]” The hearing judge found “that the Robertson Report was similarly

relevant to the issues raised.”

On March 30, 2011, the circuit court held a hearing on the petition for a writ of

actual innocence. At the hearing, Cassilly stated:

Now let me just talk a little bit about some of the scientific evidence here, all

right? Because, again, they’re completely mischaracterizing what was said.

Michael Malone, there was an FBI investigation about Mr. Malone’s

credibility and that did come out and we did receive a letter from the FBI

indicating that they had reviewed Malone’s testimony in this case and that

they concluded that his testimony was appropriate, that he did not overstate

the case. Sim, similar letter to the one that you got with respect to the bullet,

to the bullet and lead analysis. Unfortunately I, given the length of time was

not able to locate that letter. But that’s the same kind of letter that we got

with respect to Mr. Malone.[12]

12

The transcript of the March 30, 2011 hearing demonstrates that, when addressing

the circuit court, after making the statement above, Cassilly stated: “With respect to, and,

and although Malone subsequently was found to have perjured himself, there’s no, there’s

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The hearing judge found that Cassilly’s statements to the circuit court at the hearing “were

knowingly and intentionally false” as

[t]he Robertson Report concluded that: (1) [] Robertson was unable to

determine whether Agent Malone performed the appropriate tests in a

scientifically acceptable manner; (2) the results of Agent Malone’s

examination were not supported by or adequately documented in his bench

notes; (3) Agent Malone’s testimony was consistent with his report but

inconsistent with his bench notes; (4) Agent Malone matched or eliminated

some hair without describing the microscopic characteristics observed in the

evidence samples and control samples; and (5) Agent Malone deemed some

samples unsuitable for comparison without providing a reason.

The hearing judge specifically found that Cassilly’s “representation that [] Thompson’s

letter was similar to Dr. Hassell’s letter [was] false and misleading.”

At the conclusion of the hearing on the petition for a writ of actual innocence, the

circuit court directed Cassilly to determine whether the FBI or State law enforcement

laboratories could conduct DNA analysis of the hairs that Agent Malone had identified as

a match to Huffington. Approximately one month later, on May 2, 2011, the circuit court

wrote to Cassilly and Huffington’s counsel and instructed Cassilly to advise by June 3,

2011 of the possibility of obtaining DNA testing.

In the meantime, on April 5, 2011, Huffington’s counsel wrote to Cassilly

requesting a copy of the letter from the FBI that Cassilly had referenced at the hearing on

the petition for a writ of actual innocence. Cassilly responded by e-mail the same day,

no evidence today that anything that he said in this trial or that subsequent comparison of

the hairs that he made in this trial have been shown to be incorrect.” The hearing judge

found that this was a knowingly false statement of fact and concluded that Cassilly violated

Rule 3.3(a)(1) in making the statement to the circuit court.

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stating that if he “could have found it [he] would have had it in Frederick County.” Cassilly

did not provide any additional information about the letter.

On November 1, 2011, Spencer S. Hsu, a reporter for The Washington Post,

contacted Huffington’s counsel and provided documents that he had received from the FBI

and the DOJ in response to a Freedom of Information Act request. The documents that

Hsu provided included the July 18, 1997 memorandum of Jabloner, Thompson’s October

21, 1999 letter, and the Robertson Report. On November 14, 2011, Huffington filed a

“Supplemental Memorandum Presenting Additional Newly Discovered Evidence[,]”

advising that, “[u]ntil only a few days ago, Huffington and his counsel were completely

unaware that the FBI had assessed Agent Malone’s testimony and analysis in his case” and

asserting that the State had withheld the evidence for over a decade.

In response to the circuit court’s May 2, 2011 directive, Cassilly advised that 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 hair at issue.

On May 1, 2013, the circuit court issued a memorandum opinion and order granting

the petition for a writ of actual innocence and ordering a new trial. In the opinion, the

circuit court stated that the State had “used Agent Malone’s testimony as the key piece of

evidence to connect [Huffington] to the murder of Diane Becker.” The circuit court

determined that the Robertson Report was “pertinent and highly relevant,” but that the

DNA test results rendered moot the need for the court to discuss Agent Malone’s testimony.

The State appealed, and the case was stayed pending the outcome of the appeal.

- 16 -

The 2014 DOJ Letters

On July 28, 2014, Norman Wong, Special Counsel to the DOJ, wrote to Richard D.

Fritz, the State’s Attorney for St. Mary’s County, concerning Huffington’s case.13 In the

letter, in a section titled “Error Identified in this Matter[,]” Wong detailed errors found in

Agent Malone’s testimony in Huffington’s case, stating:

We have determined that microscopic hair comparison analysis testimony or

laboratory report presented in this case included statements that exceeded the

limits of science and were, therefore, invalid: (1) the examiner stated or

implied that the evidentiary hair could be associated with a specific

individual to the exclusion of all others - this type of testimony exceeds the

limits of the science; (2) the examiner assigned to the positive association a

statistical weight or probability or provided a likelihood or rareness of the

positive association that could lead the jury to believe that valid statistical

weight can be assigned to a microscopic hair association - this type of

testimony exceeded the limits of the science; or (3) the examiner cites the

number of cases or hair analyses worked in the laboratory and the number of

samples from different individuals that could not be distinguished from one

another as a predictive value to bolster the conclusion that a hair belongs to

a specific individual - this type of testimony exceeded the limits of the

science.

With the letter, Wong enclosed the following documents: (1) the FBI Microscopic Hair

Comparison Analysis Review Evaluation Form on which the FBI relied; (2) a

memorandum to the Innocence Project; (3) a response from the Innocence Project agreeing

with the FBI analysis; (4) Agent Malone’s original report; and (5) Agent Malone’s

testimony from the November 1983 trial. On the same date, Wong sent an identical letter

to Fritz regarding Kanaras’s case with similar documentation.

On July 30, 2014, Fritz forwarded the 2014 DOJ letters to Cassilly. The hearing

13

The hearing judge pointed out that it is unclear why the DOJ contacted Fritz as

neither Huffington’s nor Kanaras’s trial had occurred in St. Mary’s County.

- 17 -

judge found that Cassilly maintained the letters in the State’s file but that he had testified

at the disciplinary hearing that he did not read them. Cassilly did not provide a copy of the

2014 DOJ letters to Huffington or his counsel. The hearing judge found that Cassilly “had

a duty to disclose the letters, as they constituted both exculpatory and impeachment

evidence.”

Third Trial

In 2016, the State dismissed its appeal and Huffington’s new trial was scheduled for

April 3 through 14, 2017. On July 28, 2016, in preparation for trial, Huffington’s counsel

wrote to Cassilly and requested any communications between the State and any law

enforcement agency concerning Huffington, the case, or tests of Huffington’s person

and/or clothing that tended to exculpate Huffington. Cassilly did not produce the 2014

DOJ letters. The hearing judge found that the 2014 DOJ letters, “in addition to meeting

the disclosure requirements of [Maryland] Rule 4-263, were responsive to [] Huffington’s

discovery request.”

On August 18, 2016, the State filed supplemental discovery stating that it had no

exculpatory or mitigating evidence. The hearing judge found that Cassilly “knowingly and

intentionally failed to produce the 2014 [DOJ] letters.” The hearing judge explained:

Maryland Rule 4-263(d)(5) and (d)(6) required the State to produce

any evidence including exculpatory and impeachment evidence. Maryland

Rule 4-263(d)(8) required the State to produce the reports of each expert

consulted by the State’s Attorney in connection with the case. This Court

finds that the review of Agent Malone’s testimony contained in the 2014

[DOJ] letters was an expert report made in connection with the action.

At the disciplinary hearing, Cassilly provided several reasons as to why he did not

- 18 -

turn over the 2014 DOJ letters: (1) the letters were irrelevant; (2) the letters were not

impeachment evidence because he did not intend to call Agent Malone as a witness at the

new trial; (3) the DOJ had indicated that the letters would be sent to defense counsel; and

(4) the letters were not responsive to the discovery requests. The hearing judge rejected

each of these reasons and found that the 2014 DOJ letters “constituted both exculpatory

and impeachment evidence.”

On September 9, 2016, Huffington’s counsel wrote to Cassilly and requested any

communications between the State and the DOJ and/or the Innocence Project relating to

the case. On September 13, 2016, Cassilly responded: “You already have in your files the

reports of all expert examinations conducted in connection with this case. Again all of the

FBI reports are contained in the Sheriff’s files.” The 2014 DOJ letters were not included

in the Sheriff’s files.

On September 27, 2016, Huffington filed a motion to compel discovery. On

September 28, 2016, with the Honorable Theresa M. Adams presiding, the circuit court

conducted a pretrial conference. During the conference, Huffington’s counsel stated that,

on “October 21st, 1999, a senior attorney at the [DOJ] sent a letter to [] Cassilly informing

him that FBI agent Michael Malone had testified falsely in [] Huffington’s case.” In

response, Cassilly stated:

No. They never said that. That has been a patent lie stated by the Defense

every time this has come up. There is a written opinion from the [DOJ]

saying that they reviewed Malone’s testimony in this case and found nothing

wrong. Malone subsequently, ten years after this case, was found ti [sic] --

testified falsely in other cases. But there is a written letter which the Defense

has which stated that Malone’s testimony in this case was within professional

limit.

- 19 -

The hearing judge found that Cassilly’s “statements to Judge Adams were knowingly and

intentionally false” as “[t]he Robertson Report identified problems with Agent Malone’s

testimony, and the 2014 [DOJ] letters concluded that the testimony exceeded the limits of

science.”

On February 7, 2017, Huffington’s counsel wrote to Cassilly requesting that

Cassilly produce all Brady14 material and “[a]ny correspondence with law enforcement that

has not been disclosed regarding forensic testing.” On February 15, 2017, Cassilly

responded that he was not aware of any correspondence that had not already been furnished

to the defense and stated that he had produced all discoverable information. The hearing

judge found that, as of February 15, 2017, Cassilly had not produced the 2014 DOJ letters

“despite the fact that the letters were exculpatory and constituted impeachment evidence.”

On February 27, 2017, Huffington filed a “Motion to Compel Identification of All

Lost or Destroyed Evidence.” On March 7, 2017, the circuit court conducted a hearing on

the motion. At the hearing, the circuit court asked Cassilly if he had any exculpatory

evidence that had not been turned over. Cassilly responded that the FBI sent two letters

concerning Agent Malone that ultimately concluded that Agent Malone had testified

properly and did not do anything wrong in Huffington’s case. The hearing judge found

that Cassilly “knowingly and intentionally misrepresented to the [circuit c]ourt that the FBI

Brady v. Maryland, 373 U.S. 83 (1963) “and its progeny guarantee to a criminal

14

defendant who stands trial the right to receive material exculpatory and impeachment

evidence in the possession of the State.” Canales-Yanez v. State, 472 Md. 132, 158, 244

A.3d 1096, 1111 (2021) (cleaned up).

- 20 -

[had] concluded that they did not find Agent Malone did anything wrong in [] Huffington’s

case.”

On November 9, 2017, Huffington entered Alford pleas15 to two counts of first-

degree murder, one count of armed robbery, and one count of burglary. The plea agreement

provided that Huffington would receive two concurrent life sentences with all but time

served (11,752 days) suspended. As part of the plea agreement, Huffington agreed to waive

his appeal and postconviction rights and consented to the destruction of evidence in his

case.

Bar Counsel’s Investigation

On November 13, 2018, Huffington filed with Bar Counsel a complaint against

Cassilly. On November 29, 2018, Bar Counsel wrote to Cassilly and enclosed a copy of

the complaint. On December 3, 2018, Cassilly responded that he did not withhold any

exculpatory evidence in Huffington’s case. On January 29, 2019, Bar Counsel requested

that Cassilly address his failure to provide Huffington’s counsel with materials received

from the DOJ. Cassilly responded that “[a] review of the agent’s testimony in this case

15

An Alford plea, derived from North Carolina v. Alford, 400 U.S. 25 (1970),

is a plea in which the individual retains the right to appellate review of

evidence subject to a suppression motion but avoids going through the time

and expense of a full trial. By pleading not guilty and agreeing to the proffer

of stipulated evidence or an agreed statement of facts, an individual, like with

a guilty plea, waives a jury trial and the right to confront witnesses but retains

appellate review of the suppression decision.

Rogers v. State, 468 Md. 1, 44 n.7, 226 A.3d 261, 287 n.7 (2020), cert. denied, ___ U.S.

___, 141 S. Ct. 1052 (2021) (cleaned up).

- 21 -

found that he had not overstated his findings.”

On September 11, 2019, Bar Counsel wrote to Cassilly to schedule a date to take a

statement under oath and, on September 17, 2019, Bar Counsel issued a subpoena pursuant

to Maryland Rule 19-712, ordering Cassilly to appear at the Office of Bar Counsel on

October 1, 2019 to respond under oath to questions. Cassilly appeared on that date but

refused to take the oath. 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.”

Aggravating and Mitigating Factors

The hearing judge did not find any aggravating factors. The hearing judge found as

mitigating factors that Cassilly has no prior attorney discipline and “that he generally

enjoys a positive reputation in the legal community.”

STANDARD OF REVIEW

In an attorney discipline proceeding, this Court reviews for clear error a hearing

judge’s findings of fact and reviews without deference a hearing judge’s conclusions of

law. See Md. R. 19-740(b)(1) and (b)(2)(B); Attorney Grievance Comm’n v. Slate, 457

Md. 610, 626, 180 A.3d 134, 144 (2018). This Court determines whether clear and

convincing evidence establishes that a lawyer violated a Rule of Professional Conduct. See

Md. R. 19-727(c).

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DISCUSSION

(A) Doctrine of Laches

Cassilly contends that there was an “inordinate delay” in Huffington’s filing of the

complaint and in Bar Counsel’s filing of the Petition for Disciplinary or Remedial Action

that “engendered a due process violation” and essentially argues that the doctrine of laches

should bar the attorney discipline proceeding. Specifically, Cassilly asserts that Huffington

waited seven-and-a-half years after learning of the Robertson Report before filing a

complaint against him and that Bar Counsel waited another year-and-a-half before filing

the Petition for Disciplinary or Remedial Action, which in his view constituted an

inordinate delay. Cassilly argues that due to the delay both he and the Honorable Joseph

F. Murphy, whom he called as an expert witness (Judge Murphy had also served as

Kanaras’s defense attorney at trial), had trouble recalling the circumstances surrounding

receipt of the Robertson Report and could only testify at the disciplinary hearing “as to

vague impressions[.]” According to Cassilly, this placed him at a “disadvantage in

providing a response utilizing Judge Murphy’s recollection of receiving the Robertson

report.” We are not persuaded by Cassilly’s contentions and conclude that the doctrine of

laches is inapplicable in this attorney discipline proceeding. We explain.

“The doctrine of laches, which is both an affirmative defense and an equitable

defense, applies where there is an unreasonable delay in the assertion of one party’s rights

and that delay results in prejudice to the opposing party.” Jones v. State, 445 Md. 324,

329, 126 A.3d 1162, 1165 (2015) (citation omitted). The purpose of laches is to protect

“against stale claims[.]” State Ctr., LLC v. Lexington Charles Ltd. P’ship, 438 Md. 451,

- 23 -

585, 92 A.3d 400, 480 (2014) (cleaned up). In applying the doctrine of laches, “generally,

we must analyze whether, (1) in the context of an equitable claim, (2) there was an

unreasonable delay in the filing and, if so, (3) whether there was any prejudice[,]” which

“is generally held to be anything that places the defendant in a less favorable position.” Id.

at 586, 92 A.3d at 481 (cleaned up). Whether laches applies depends on an evaluation of

the facts and circumstances of a particular case. See id. at 590, 92 A.3d at 483.

Importantly, “[t]he passage of time, alone, does not constitute laches but is simply one of

the many circumstances from which a determination of what constitutes an unreasonable

and unjustifiable delay may be made.” Id. at 590, 92 A.3d at 483 (cleaned up).

Our jurisprudence is replete with cases in which we have expressed doubt about the

applicability of the doctrine of laches to attorney discipline proceedings and found the

elements of the defense not to have been satisfied. In Anne Arundel Cty. Bar Ass’n, Inc.

v. Collins, 272 Md. 578, 581-82, 583, 585, 325 A.2d 724, 726, 727, 728-29 (1974), this

Court rejected an attorney’s contention that disciplinary proceedings against him were

barred by laches and the general three-year statute of limitations for most civil claims. The

attorney was alleged to have bribed, in his position as attorney for the Board of License

Commissioners, two members of the Board to influence their decisions concerning

applications for alcoholic beverage licenses. See id. at 579, 325 A.2d at 725. The attorney

contended that disciplinary proceedings against him were barred by the statute of

limitations and laches because of the lapse of almost four years between his indictment and

the filing of the grievance petition. See id. at 581-82, 325 A.2d at 726-27. We held that

the general three-year statute of limitations “does not apply to disciplinary proceedings

- 24 -

brought against members of the Bar.” Id. at 583, 325 A.2d at 727. We explained that

courts in other jurisdictions had uniformly concluded as much “primarily because a

disciplinary proceeding is neither an action at law, nor a criminal prosecution.” Id. at 582,

325 A.2d at 727 (citations omitted). In an attorney discipline case,

the inquiry is in the nature of an investigation by the court into the conduct

of one of its own officers, and is not the trial of an action at law, as the order

which is entered is only an exercise of the disciplinary jurisdiction which a

court has over [i]ts officers.

Id. at 582-83, 325 A.2d at 727 (citation omitted).

We rejected the attorney’s defense of laches—“assuming without deciding its

applicability to disciplinary proceedings”—because the attorney had not produced any

“evidence of disadvantage or prejudice which he claim[ed] to have suffered because of

th[e] delay.” Id. at 585, 325 A.2d at 728-29 (internal quotation marks omitted). In addition

to failing to demonstrate disadvantage or prejudice, we noted that the attorney had “cited

no cases in which disciplinary proceedings against an attorney ha[d] been dismissed upon

the ground of laches.” Id. at 583, 325 A.2d at 728. We quoted with approval the Supreme

Court of Oregon’s discussion concerning laches in In Re Weinstein, 459 P.2d 548, 549 (Or.

1969), cert. denied, 398 U.S. 903 (1970), a case in which that Court “held that a bar

association delay of twenty-seven months did not justify dismissal”:

It is unnecessary to define in this case the proper remedy for vexatious and

unreasonable delay on the part of the Bar. None has been shown in this case.

It ought to be made clear, however, that the primary purpose of professional

disciplinary proceedings is to protect the public. The punishment of an

offending member of the profession is indeed a serious matter, but it is

incidental to the protection of the public. If the conduct of a member of the

Bar disqualifies him from the practice of law, it would not be in the public

- 25 -

interest to dismiss the disciplinary proceedings for no reason other than the

Bar’s failure to prosecute them with the proper dispatch.

Collins, 272 Md. at 584, 325 A.2d at 728 (emphasis omitted).

Less than a year after Collins, in Bar Ass’n of Baltimore City v. Posner, 275 Md.

250, 255, 339 A.2d 657, 660 (1975), we concluded that an attorney’s “attempt to raise

limitations or laches as a defense overlook[ed] the proceeding’s purpose, that of protecting

the public.” (Citations omitted). We stated that the purpose of a disciplinary proceeding

is “to protect the public by determining a lawyer’s fitness to practice law” and that the

attorney “was entitled to [] a full and fair hearing, which he had.” Id. at 255, 339 A.2d at

660 (citations omitted).

In Attorney Grievance Comm’n v. Engerman, 289 Md. 330, 346, 424 A.2d 362, 370

(1981) (per curiam), although an attorney correctly asserted “that former Bar Counsel had

knowledge of all the essential facts alleged in” two parts of the petition for disciplinary

action but failed to advise the attorney of the allegations contained in one part of the petition

until approximately two-and-a-half years later, we concluded that the doctrine of laches

was not a defense that the attorney could successfully invoke and did not apply in the

attorney discipline proceeding. We explained that we had “clearly stated” our view on the

matter in Collins and we again favorably quoted the Supreme Court of Oregon’s opinion

in Weinstein, 459 P.2d at 549. Engerman, 289 Md. at 346, 424 A.2d at 370. Citing Posner,

275 Md. at 255, 339 A.2d at 660, we concluded: “Since the purpose of this proceeding[] is

solely to protect the public by determining a lawyer’s fitness to practice law, the [attorney]

is entitled only to a full and fair hearing, not anything more.” Engerman, 289 Md. at 346,

- 26 -

424 A.2d at 370. We determined that, in any event, the attorney had failed to demonstrate

any prejudice from any delay in the commencement of disciplinary proceedings. See id.

at 346, 424 A.2d at 370. Accordingly, we upheld the hearing judge’s determination that

the doctrine of laches did not apply. See id. at 347-48, 424 A.2d at 371.

In Attorney Grievance Comm’n v. Kahn, 290 Md. 654, 684, 431 A.2d 1336, 1352

(1981), we similarly rejected an attorney’s defense of laches due to the lack of prejudice to

the attorney caused by the delay in the filing of a petition for disciplinary action. The

attorney moved to dismiss the attorney grievance proceeding on the ground that Bar

Counsel was barred by laches from proceeding because Bar Counsel was notified that the

Review Board of the Attorney Grievance Commission had directed that charges be filed

against the attorney nearly two years before Bar Counsel actually filed the petition. See

id. at 677, 431 A.2d at 1348. According to the attorney, the nearly two-year delay was

unreasonable and unjustifiable and resulted in prejudice to him. See id. at 677, 431 A.2d

at 1348. The hearing judge denied the motion to dismiss, assuming without deciding that

laches applied to attorney discipline proceedings and determining that there was “no

substantial evidence” that the attorney had “been prejudiced by the delay in prosecuting

the [] charges.” Id. at 677-78, 431 A.2d at 1349. Before us, the attorney contended that

the hearing judge erred in determining that the defense of laches was inapplicable. See id.

at 678, 431 A.2d at 1349. We rejected the attorney’s contention, explaining:

While the delay in [the attorney]’s case was gross and inexcusable—a fact

readily acknowledged by newly appointed Bar Counsel during oral argument

on the exceptions—we agree with [the hearing judge] that the evidence does

not show that [the attorney] was prejudiced by the delay. Because the

purpose of disciplinary action against an attorney is to protect the public,

- 27 -

dismissal of the disciplinary petition for the sole reason that the Attorney

Grievance Commission failed to proceed with the proper dispatch is

manifestly unwarranted.

Id. at 684, 431 A.2d at 1352 (citations omitted).

In Attorney Grievance Comm’n v. Owrutsky, 322 Md. 334, 339-40, 587 A.2d 511,

513-14 (1991), we rejected an attorney’s contention that the disciplinary proceeding be

dismissed on the ground of laches. The attorney represented a husband and wife in various

business and personal matters, including preparing a will for the husband in August 1975,

which identified the husband’s daughter and the attorney as co-personal representatives,

and supervising the execution by the wife of a codicil to her will. See id. at 336-37, 587

A.2d at 512. In April 1984, approximately eight years after the husband died and

approximately seven years after the wife died, the daughter filed a complaint against the

attorney with the Attorney Grievance Commission. See id. at 337-38, 587 A.2d at 512-13.

The Office of Bar Counsel conducted an investigation and proceedings occurred before the

Inquiry Panel and the Review Board of the Attorney Grievance Commission. See id. at

338, 587 A.2d at 513. In December 1988, Bar Counsel filed the petition in this Court and

we referred the matter to a hearing judge. See id. at 338, 587 A.2d at 513. Before the

hearing judge, the attorney moved to dismiss the petition, contending that he had been

prejudiced by an inordinate delay in the filing of charges against him. See id. at 338-39,

587 A.2d at 513.

In considering the attorney’s motion to dismiss on the ground of laches, we noted

that we had rejected a similar contention in Collins and quoted approvingly from the

Supreme Court of Oregon’s statement in Weinstein in that case. See Owrutsky, 322 Md.

- 28 -

at 339, 587 A.2d at 513. We reiterated that, “because the purpose of disciplinary action

against an attorney is to protect the public, dismissal of the disciplinary petition for the sole

reason that the Attorney Grievance Commission failed to proceed with the proper dispatch

is manifestly unwarranted.” Id. at 340, 587 A.2d at 513 (quoting Kahn, 290 Md. at 684,

431 A.2d at 1352) (cleaned up). We observed that the attorney contended that he was

prejudiced because his bookkeeper, who handled many of the transactions in connection

with the husband’s and wife’s estates, had died. See Owrutsky, 322 Md. at 340, 587 A.2d

at 514. We rejected the attorney’s contention and instead agreed with the hearing judge

that the attorney had not been prejudiced by the delay in filing charges. See id. at 340, 587

A.2d at 514. We explained that Bar Counsel had pointed out that the bookkeeper had

previously given recorded testimony before the Inquiry Panel, while under oath and subject

to cross-examination, and that the bookkeeper’s testimony would be admissible under the

“prior testimony” exception to the rule against hearsay. See id. at 340, 587 A.2d at 514.

As such, we denied the attorney’s motion to dismiss. See id. at 340, 587 A.2d at 514.

In Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 356-58, 348, 624

A.2d 503, 509-10, 505 (1993), we rejected an attorney’s attempt to raise the defense of

laches in an attorney discipline proceeding involving incidents of sexual assault and

harassment. In 1989, a woman, who had been a client, alleged incidents in the late 1970s

and filed a complaint against the attorney with the Attorney Grievance Commission. See

id. at 357 n.5, 347-48, 624 A.2d at 510 n.5, 505. During the investigation of the complaint,

the Commission’s investigators learned of allegations that the attorney had sexually

assaulted and harassed two other women, one who had been his client in 1984 and one who

- 29 -

had been his administrative assistant from 1986 to 1987. See id. at 348-49, 624 A.2d at

505-06.

In considering the attorney’s laches argument, we stated that we had “previously

expressed doubt about the applicability of the laches defense in attorney grievance

proceedings” and that “[t]his doubt springs from our concern for the underlying purpose of

the Attorney Grievance process.” Id. at 356, 624 A.2d at 510 (citing Engerman, 289 Md.

at 346, 424 A.2d at 370; Collins, 272 Md. at 583, 325 A.2d at 728). We noted that the

issue in Engerman and Collins “was the disciplinary authorities’ delay in pursuing action

against an attorney once a complaint was brought, rather than a complainant’s delay in

bringing the complaint[,]” but explained:

Nonetheless, the Court’s prior comments are especially applicable to this

case. While we encourage and expect members of the public to promptly

pursue attorney grievance actions when they are warranted, the mere failure

of a complainant to promptly file a complaint should not necessarily

foreclose disciplinary action against the attorney. In this case, to the extent

that the investigation sparked by the complaint revealed a pattern of conduct

stretching from [one client]’s experience in the late 1970s to [the attorney’s

administrative assistant]’s as late as 1987, we believe it was appropriate to

pursue both an investigation and the filing of disciplinary charges.

Goldsborough, 330 Md. at 357, 624 A.2d at 510 (footnote omitted). In addition, we were

unpersuaded by the attorney’s reliance on a case in which this Court had “adopted the

Attorney Grievance Commission’s recommendation of a reprimand over suspension or

disbarment because ‘much water had gone over the dam’ since the violations complained

of had occurred.” Id. at 357-58, 624 A.2d at 510 (cleaned up). We explained that reliance

on the case was misplaced, as it “addressed the passage of time only as a mitigating

circumstance affecting the Court’s sanction” and “did not suggest that the passage of time

- 30 -

should in any way affect whether the violation itself should be found[.]” Id. at 358, 624

A.2d at 510.

In Attorney Grievance Comm’n v. Braskey, 378 Md. 425, 441-43, 836 A.2d 605,

615-16 (2003), we denied an attorney’s motion to dismiss a disciplinary proceeding,

explaining:

There is no statute of limitations in an attorney disciplinary

proceeding and mere delay does not warrant dismissal. We have often noted

that the purpose of attorney discipline proceedings is to protect the public by

determining a lawyer’s fitness to practice law, and that an attorney is entitled

only to notice of the charges, and a full and fair hearing, not anything more.

A mere delay in disciplinary proceedings is not a basis for dismissal,

absent a showing of prejudice. . . . Even in a case where we found the delay

gross and inexcusable, we noted that the attorney was not prejudiced by the

delay and that dismissal for the sole reason that the Attorney Grievance

Commission failed to proceed with the proper dispatch is manifestly

unwarranted.

The Court of Appeals for the District of Columbia stated that “an

undue delay in prosecution is not in itself a proper ground for dismissal of

charges of attorney misconduct.” [Matter of] Williams, 513 A.2d 793, 796

(D.C.[ ]1986). . . . This is a view shared by other courts in addressing delay

in attorney disciplinary proceedings.

(Cleaned up). We stated, though, that delay is not irrelevant, because “[i]f an attorney’s

ability to present a defense is substantially impaired, and an attorney can show actual

prejudice to the defense, there might be a due process violation.” Braskey, 378 Md. at 444,

836 A.2d at 617 (citations omitted). We concluded, however, that the attorney had not

demonstrated such prejudice. Id. at 444, 836 A.2d at 617.

More recently, in Attorney Grievance Comm’n v. Penn, 431 Md. 320, 334, 336,

323, 65 A.3d 125, 134-35, 127 (2013), we overruled an attorney’s exception that his

defense was adversely impacted by a delay in the disciplinary proceedings, during which

- 31 -

time the attorney’s former employer destroyed various files, and that as a result the case

should be dismissed. We explained that “prejudice is the gravamen for any dismissal

motion to be favorably entertained by this Court in any attorney grievance action; a claim

of delay must be accompanied by a showing of prejudice.” Id. at 335, 65 A.3d at 134. We

ultimately agreed with the hearing judge that the files at issue would not have negated the

attorney’s misconduct, explaining that the attorney “testified at the hearing in accordance

with his proffer before us about what the documents would have proven. [The hearing

judge] heard [the attorney]’s testimony and did not find it to be compelling to negate his

misconduct, so that the absence of the documents could not be prejudicial.” Id. at 336, 65

A.3d at 135.

As is readily apparent, we have on numerous occasions over almost the past five

decades “expressed doubt about the applicability of the laches defense in attorney

grievance proceedings” given the underlying purpose of attorney discipline proceedings,

Goldsborough, 330 Md. at 356, 624 A.2d at 510 (citations omitted), which “is to protect

the public[,]” Engerman, 289 Md. at 346, 424 A.2d at 370 (citation omitted). We continue

to express strong reservation as to the applicability of the doctrine of laches in attorney

discipline proceedings and now conclude that, with the possible exception of cases

involving both extraordinary circumstances of delay and actual prejudice resulting in a

clear due process violation, applying the doctrine of laches to attorney discipline

proceedings would not be consistent with the goal of such proceedings, which is to protect

the public. In this case, we determine that the record fails to demonstrate the existence of

the type of unreasonable delay and prejudice generally prohibited by the doctrine of laches,

- 32 -

let alone the type of extraordinary delay and prejudice that would be necessary to affect the

ability of an attorney disciplinary case to proceed.

Here, there was no unreasonable delay on Bar Counsel’s part in filing the Petition

for Disciplinary or Remedial Action against Cassilly. On November 13, 2018, Huffington

filed a complaint against Cassilly with Bar Counsel, and less than two years later, on

September 8, 2020, Bar Counsel filed the petition in this Court. During the intervening

time, as the hearing judge found, Bar Counsel conducted an investigation of the complaint.

Bar Counsel’s investigation included requesting responses from Cassilly to the complaint,

interviewing witnesses, obtaining and reviewing documents, seeking to take Cassilly’s

statement under oath, presenting the case to the Attorney Grievance Commission, and

preparing the Petition for Disciplinary and Remedial Action. At the disciplinary hearing,

Bar Counsel called six witnesses, including an expert witness, and introduced over fifty

exhibits into evidence. In our view, under the circumstances of the case, the approximately

twenty-two-month period between the filing of the complaint by Huffington and the filing

of the petition with this Court by Bar Counsel did not constitute an unreasonable delay.

To be sure, as Cassilly points out, Huffington learned of the Robertson Report, when

his counsel received a copy of the report from a reporter in November 2011, and did not

file a complaint with Bar Counsel until seven years later in November 2018. Certainly,

any delay on Huffington’s part in filing a complaint cannot be attributed to Bar Counsel

for the purpose of laches and Huffington’s delay in filing the complaint would not serve to

preclude Bar Counsel from pursuing the matter. Huffington filed the complaint only one

year after entering Alford pleas, being sentenced to time served, and concluding his

- 33 -

criminal case. In other words, Huffington acted promptly in filing the complaint once he

was no longer in jeopardy of a criminal conviction. In any event, what we stated in

Goldsborough, 330 Md. at 357, 624 A.2d at 510, would apply with equal force here: “While

we encourage and expect members of the public to promptly pursue attorney grievance

actions when they are warranted, the mere failure of a complainant to promptly file a

complaint should not necessarily foreclose disciplinary action against the attorney.” In this

case, just as in Goldsborough, id. at 357, 624 A.2d at 510, although Huffington, the

complainant, filed a complaint years after the basis for the complaint became known to

him, it was appropriate for Bar Counsel to pursue both an investigation and the filing of

disciplinary charges.

In addition, even if there had been unreasonable or extraordinary delay in Bar

Counsel’s bringing the petition, Cassilly would not prevail based on the defense of laches

because he has not demonstrated that he was prejudiced by the delay. See Braskey, 378

Md. at 444, 836 A.2d at 617. In his exceptions, the only form of prejudice alleged by

Cassilly is faulty memory on his and Judge Murphy’s part concerning “the particulars of

having received the Robertson [R]eport.” Without more, this bare allegation does not come

close to demonstrating actual prejudice caused by any delay in the filing of the complaint

or the petition.16 In addition, the faulty memory that Cassilly alleges could just as easily

16

The allegation that Cassilly was somehow prejudiced by Judge Murphy being

unable to fully recollect his receipt of the Robertson Report is unpersuasive. Judge Murphy

was called by Cassilly at the disciplinary hearing and was accepted as an expert witness in

the areas of “criminal law and duty to disclose.” As an expert witness, Judge Murphy

would have reviewed documents or information related to the case and been permitted to

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be attributed to the existence of the twelve-year delay between the time that Cassilly

received the Robertson Report from Thompson in October 1999 and the point at which

Huffington’s counsel finally received a copy of the report in November 2011 from a

reporter, i.e., the period of time during which Cassilly himself failed to disclose the report.

In short, we conclude that Cassilly has not demonstrated prejudice and the defense of

laches—even if the doctrine were generally applicable to Attorney Grievance Commission

cases—is not satisfied here.

Moreover, the mitigating factor of a delay in the attorney discipline proceeding

exists to address the circumstances for which Cassilly attempts to invoke laches. See Slate,

457 Md. at 647, 180 A.3d at 156. In Goldsborough, 330 Md. at 358, 624 A.2d at 510, we

render an opinion within the scope of his expertise. For example, on direct examination,

Cassilly’s counsel asked Judge Murphy: “As a result of the work that you did in this case

and your understanding, do you have an opinion to a reasonable degree of professional

certainty whether [] Cassilly had a duty to disclose the information that came out

subsequent to conviction about . . . Agent Malone?” The circumstance that Judge Murphy

represented Kanaras and may have at some point independently received the Robertson

Report and may or may not have recalled the circumstances of his receiving the report had

no bearing on Judge Murphy’s testimony as an expert witness nor any relevance as to the

issue of whether Cassilly was under a duty to disclose the report. Indeed, in response to

Cassilly’s counsel’s question about the basis of Judge Murphy’s opinion that Cassilly had

no such duty, Judge Murphy testified in part:

The letter caught up with me somehow and at that time obviously I wasn’t

representing [] Kanaras anymore and I can’t remember whether [] Kanaras

had actually been released from Division of Corrections, but if he was still

in the Division of Corrections he was represented by Bill Gately or Larry

Nathans. I guess my practice would have been to turn the letter over to them.

But the information in the letter was really of no consequence to []

Kanaras’[s] case because it was [Agent] Malone’s testimony when he

testified at Kanaras’[s] trial as well as at [] Huffington’s trial, [Agent]

Malone’s testimony was consistent with [] Kanaras’[s] testimony.

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stated that the passage of time between the misconduct at issue and institution of charges

against an attorney may serve “as a mitigating circumstance affecting the Court’s

sanction[,]” but does not “in any way affect whether the violation itself should be found[.]”

In this case, the hearing judge did not find the mitigating factor of a delay in the attorney

discipline proceeding and, tellingly, Cassilly has not raised an exception to the lack of such

a finding.

(B) Findings of Fact

Bar Counsel does not except to any of the hearing judge’s findings of fact.

Cassilly raises numerous exceptions but does not categorize any of the exceptions

as being either to the hearing judge’s findings of fact or conclusions of law. The exceptions

that Cassilly raises appear to concern, in part, both the hearing judge’s findings of fact and

conclusions of law. For example, Cassilly excepts to the hearing judge’s determinations:

(1) that the Robertson Report and 2014 DOJ letters were exculpatory; (2) that the 2014

DOJ letters were required to be disclosed (Cassilly contends that the letters were in fact

disclosed); (3) that the Robertson Report tended to negate Huffington’s guilt (Cassilly

contends that the hearing judge “exaggerated the importance of [Agent] Malone to the

State’s case” and that the criticisms of Malone’s testimony were not material); and (4) that

“he deliberately misstated and attempted to mislead” the circuit court when he made

statements to the court about the Robertson Report. Cassilly’s exceptions will be addressed

below in our discussion of the conclusions of law, given that his exceptions to findings of

fact and conclusions of law are intertwined.

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(C) Conclusions of Law

The hearing judge concluded that Cassilly violated Rules 3.3(a)(1), 3.4(a), 3.8(d),

8.4(c), 8.4(d), and 8.4(a), but did not violate Rule 8.1(b). Cassilly generically contends

that his actions did not violate any of the Rules and “were not unethical.” Bar Counsel

excepts to the hearing judge’s conclusion that Cassilly did not violate Rule 8.1(b). We

overrule Cassilly’s exceptions, sustain Bar Counsel’s exception, and conclude that clear

and convincing evidence demonstrates that Cassilly violated Rules 3.3(a)(1), 3.4(a), 3.8(d),

8.1(b), 8.4(c), 8.4(d), and 8.4(a).

Rule 3.3(a)(1) (Candor Toward the Tribunal)

The hearing judge concluded that Cassilly “violated Rule 3.3(a)(1) by knowingly

making false statements of fact to the court regarding the information contained in []

Thompson’s 1999 letter and the Robertson Report.” The hearing judge found that Cassilly

made false statements on four separate occasions. First, the hearing judge found that

Cassilly made a false statement on January 14, 2011, in the State’s response to the petition

for a writ of actual innocence by stating (in writing) that “no evidence has been presented

that the conclusion that examiner Malone rendered in court is not correct.” Second, the

hearing judge found that Cassilly made a false statement on March 30, 2011 when, at a

hearing in connection with the petition for a writ of actual innocence, Cassilly stated that

“there’s no evidence today that anything that [Agent Malone] said in this trial or that

subsequent comparison of the hairs that he made in this trial have been shown to be

incorrect.” Next, the hearing judge found that Cassilly made a false statement on

September 28, 2016, during the pretrial conference before Judge Adams, when he stated

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that “[t]here is a written opinion from the DOJ saying that they reviewed Malone’s

testimony in this case and found nothing wrong.” Finally, the hearing judge found that

Cassilly made a false statement on March 7, 2017, when he advised Judge Adams that the

FBI had concluded that Agent Malone “testified properly[.]” The hearing judge concluded

that all four of the representations by Cassilly were knowingly and intentionally false.

Although he does not specifically mention Rule 3.3(a)(1), Cassilly “takes exception

to the finding that he deliberately misstated and attempted to mislead the [circuit c]ourt[]

with respect to the contents of the [] Robertson [R]eport.” Cassilly contends that, when

speaking at the first hearing, he was “recalling the gist of [a] report he had not seen for 11

years and of which he did not have a copy.” Cassilly argues that “his characterization of

the report is a fair interpretation of a confusing, check-the-box unexplained document.”

Cassilly asserts that Judge Murphy’s testimony about the Robertson Report was consistent

with how he characterized the report in statements to the circuit court, which demonstrates

that his statements about the Robertson Report were “fair[.]” Cassilly points out that Judge

Adams testified that he is a person of integrity, and he contends that he had no motive to

mislead the circuit court about the Robertson Report. We overrule the exception.

Rule 3.3(a)(1) provides that “[a]n attorney shall not knowingly[] make a false

statement of fact or law to a tribunal or fail to correct a false statement of material fact or

law previously made to the tribunal by the attorney[.]” (Paragraph break omitted). The

duty of candor “stems from the proposition that every court has the right to rely upon an

attorney to assist it in ascertaining the truth of the case before it.” Attorney Grievance

Comm’n v. Hoerauf, 469 Md. 179, 211, 229 A.3d 802, 821 (2020) (cleaned up). As such,

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Rule 3.3(a)(1) “requires that an attorney be candid at all times with a tribunal” and an

attorney violates Rule 3.3(a)(1) “when he or she knowingly provides a court with false

information.” Id. at 211, 229 A.3d at 821 (cleaned up). Moreover, “[a]n attorney does not

need a selfish motive to violate [] Rule []3.3(a)(1).” Attorney Grievance Comm’n v.

Keating, 471 Md. 614, 649, 243 A.3d 520, 541 (2020). Similarly, in Attorney Grievance

Comm’n v. Steinhorn, 462 Md. 184, 197, 198 A.3d 821, 828 (2018), we stated that a

hearing judge’s findings of fact that an attorney did not intend to deceive the court and did

not harm anyone in submitting false information to the court—“findings that Bar Counsel

[did] not except[] to and [that] we thus adopt[ed]”—were “immaterial” to the analysis of

whether the attorney had violated Rule 3.3(a)(1). Rather, “[w]hat matters for purposes of

finding a[ Rule] 3.3(a)(1) violation is whether an attorney knows that the information he

or she presents to the tribunal is incorrect.” Id. at 197, 198 A.3d at 828 (citation omitted).

In Attorney Grievance Comm’n v. Litman, 440 Md. 205, 217, 101 A.3d 1050, 1057

(2014), we concluded that, among other misconduct, an attorney violated Rule 3.3(a) when

the attorney “misrepresented intentionally facts and the law to both judicial and

administrative tribunals[.]” We explained that, even if the attorney’s misconduct during

his representation of his client “was an aberration in an otherwise competent and ethical

legal career to that point,” as the attorney had claimed, the attorney nonetheless “engaged

in the same course of conduct twice in his representation of [the client]: once before the

federal court and again before the Pennsylvania Environmental Hearing Board.” Id. at 217,

101 A.3d at 1057-58. Moreover, even after being informed by the Pennsylvania

Department of Environmental Protection of the lack of basis for “the so-called factual

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statements and legal arguments upon which he relied,” the attorney “took no measures to

remedy the situation” and instead “either made deliberately the misrepresentations at issue

or blinded himself willfully to the falsity of his contentions.” Id. at 217, 101 A.3d at 1058.

In this case, the hearing judge’s findings with respect to the falsity of the statements

at issue are amply supported by the record, i.e., are not clearly erroneous, and clear and

convincing evidence supports the conclusion that Cassilly violated Rule 3.3(a)(1). Cassilly

made the first knowingly false statement when, on January 14, 2011, in the State’s response

to the petition for a writ of actual innocence, he stated in writing that “[n]o evidence has

been presented that the conclusion that examiner Malone rendered in court is not correct.”

Next, on March 30, 2011, at a hearing in connection with the petition for a writ of actual

innocence, Cassilly made a similar knowingly false statement when he advised the circuit

court that “there’s no evidence today that anything that [Agent Malone] said in this trial or

that subsequent comparison of the hairs that he made in this trial have been shown to be

incorrect.” It is undisputed that, as the hearing judge found, Cassilly had received the

Robertson Report at the time he responded to the petition for a writ of actual innocence,

and the report “identified multiple issues with Agent Malone’s analysis.” Cassilly’s

contention is not that he was unaware of the Robertson Report at the time that he made the

statements but rather that he was unable to fully recall the content of the report and that his

characterization of the report was not misleading.

The record demonstrates otherwise. In a letter dated October 21, 1999, Thompson

wrote to Cassilly concerning the results of the independent scientific review in

Huffington’s case and enclosed a copy of the Robertson Report. In addition to enclosing

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the Robertson Report, in the letter, Thompson summarized the OIG’s findings concerning

Agent Malone’s testimony in the Hastings case, including the conclusion that Agent

Malone’s testimony was incorrect and misleading, that he had testified falsely regarding

the tensile test, and that he had been criticized for testifying outside of his expertise and

inaccurately concerning test results in the case.

The Robertson Report directly pertained to Huffington’s case. In the report,

Robertson indicated, by checking boxes in response to questions pertaining to Huffington’s

case, that he was unable to determine whether Agent Malone had 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. Robertson indicated that, although Agent Malone’s testimony was consistent with

the laboratory report, his testimony was not consistent with bench notes. Significantly, in

the comments section of the report, Robertson unequivocally and plainly wrote: “There is

insufficient documentation to determine if the hair comparison was performed in a

scientifically acceptable manner.” Similarly, Robertson stated in no uncertain terms:

The results are not adequately documented in the notes. The notes are not

dated, are in pencil and have some erasures. Some hair were deemed

unsuitable with no documented reason or explanation. The examiner uses

abbreviations that are difficult to interpret. Some questioned hair were

matched or eliminated as coming from the known samples without

characterization of the microscopic characteristics observed in these

questioned or known hair. The technicians do not document the recovery of

any hair from the questioned items.

Robertson also explicitly stated that, “[i]n the 1982 transcript, the examiner testifies ‘I

processed’, ‘I found’, ‘I examined’, ‘I removed’ when it[’]s more likely the technicians

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processed and removed the questioned hair from the items.”

In addition to having received the Robertson Report and Thompson’s October 21,

1999 letter, at the time that Cassilly responded to the petition for a writ of actual innocence

and attended the hearing on the petition, he had already received Thompson’s June 18,

1997, letter enclosing a copy of the 1997 Report (issued by the OIG), the Tobin

memorandum, an article from The Wall Street Journal dated April 16, 1997, a letter from

Huffington’s attorney, Stewart, to the DOJ dated April 24, 1997, and Thompson’s June 18,

1997 reply to Stewart. And, Cassilly had spoken with Jabloner (an attorney in the Criminal

Division of the DOJ) concerning potential next steps to be taken about the forensic

evidence in Huffington’s case. After their discussion, Jabloner wrote a memorandum to

her file, stating among other things that Cassilly “decided to wait a while to see if the

defense files any post-conviction motions in the case” and that “[h]e had originally

requested that an FBI laboratory examiner retest the evidence, but reconsidered and

decided to wait to see what the defense will do[.]”

Put simply, when Cassilly wrote, in response to the petition for a writ of actual

innocence, that there was no evidence that “the conclusion that examiner Malone rendered

in court is not correct[,]” and advised the circuit court at a hearing in connection with the

petition that there was no evidence that anything Agent Malone testified about at trial had

been “shown to be incorrect,” he was not telling the truth. Cassilly knew that he had

received the Robertson Report (as well as Thompson’s 1999 letter), which contained

information that in no uncertain terms undermined the validity of Agent Malone’s

testimony and the accuracy of his conclusions in Huffington’s case, and, in addition,

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provided information that Agent Malone’s testimony had been incorrect and misleading in

the Hastings case. Cassilly also knew that he had received the 1997 Report and the Tobin

memorandum and conferred with Jabloner about the possibility of having the hair samples

retested, and decided to wait to see if the defense filed postconviction motions. Yet, after

the defense filed a petition for a writ of actual innocence, on two separate occasions,

Cassilly advised the circuit court that there was no evidence that the conclusion that Agent

Malone provided in court was not correct. The hearing judge’s finding that Cassilly knew

these statements to be false is well supported by the evidence. The Robertson Report alone

constituted evidence that Agent Malone’s hair comparison and accompanying testimony

may not have been correct.

To be sure, when responding to the petition for a writ of actual innocence and at the

hearing on the petition, as Cassilly contends, he was making statements to the circuit court

about a document (the Robertson Report) that he had received over a decade earlier and

had purportedly discarded. An attorney’s duty of candor and obligation to not knowingly

make a false statement of fact to a tribunal, however, is not diminished or lessened as a

result of the passage of time or because the attorney no longer retains possession of a key

document. We are unpersuaded by Cassilly’s contention that he did not knowingly make

a false statement because he was simply “recalling the gist of” the Robertson Report when

he indicated that there was no evidence that Agent Malone’s testimony had been incorrect.

In other words, we are unpersuaded that Cassilly made false statements to the circuit court

because he could not remember the content of the Robertson Report or because the report

was confusing. Tellingly, in responding to the petition for a writ of actual innocence and

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at the March 30, 2011 hearing, Cassilly never advised the circuit court or Huffington’s

counsel of the Robertson Report or that he had received any document like it and that he

was attempting to recall the gist of it. Rather than advising the circuit court that he had

received a report questioning Agent Malone’s testimony in the case and he could not recall

or was unsure if it contained information indicating that Agent Malone’s conclusion was

incorrect and that he had not retained the document, if that was the case, Cassilly instead

affirmatively falsely stated that there was no such evidence.

Next, as the hearing judge determined, Cassilly made another knowingly false

statement on September 28, 2016, during the pretrial conference before Judge Adams,

when he stated that the DOJ had reviewed Agent Malone’s testimony and in a written report

found “nothing wrong.” Likewise, Cassilly made a knowingly false statement on March

7, 2017, when he advised Judge Adams that the FBI had concluded that Agent Malone

“testified properly[.]” The record demonstrates that, by the time that Cassilly made these

statements, not only had he previously received the Robertson Report and Thompson’s

1999 letter (both of which challenged the accuracy of Agent Malone’s testimony) as well

as Thompson’s 1997 letter, the 1997 Report, and the Tobin memorandum, but in addition,

Cassilly had received Wong’s 2014 DOJ letters, in which Wong specifically identified

numerous errors in Agent Malone’s testimony in Huffington’s case and concluded that his

testimony exceeded the bounds of science.

Plainly, Cassilly knowingly made false statements of fact at the pretrial conference

of September 28, 2016 when he stated that the DOJ had issued a written opinion “saying

that they reviewed Malone’s testimony in this case and found nothing wrong[,]” and on

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March 7, 2017, when he told Judge Adams that the FBI had concluded that Agent Malone

“testified properly[.]” The Robertson Report, Thompson’s 1999 letter, and 2014 DOJ

letters are documents that Cassilly had received and that blatantly contradict his assertions

to the circuit court. The Robertson Report plainly identified problems with Agent

Malone’s testimony and the 2014 DOJ letters went even further in identifying errors in

Agent Malone’s testimony and hair comparison and concluded that his testimony exceeded

the limits of science in numerous ways.

We are not persuaded by Cassilly’s contention that his statements to the circuit court

about the Robertson Report constituted “a fair interpretation of a confusing, check-the-box

unexplained document.” A review of the Robertson Report leads to only one

interpretation—that the accuracy of Agent Malone’s testimony and hair comparison

analysis in Huffington’s case were directly called into question. Even if the questions and

checked boxes on one page of the report could be described as ambiguous—which they are

not—in the comments section of the report, Robertson straightforwardly stated, among

other things, that there was “insufficient documentation to determine if the hair comparison

was performed in a scientifically acceptable manner[,]” and “[s]ome questioned hair were

matched or eliminated as coming from the known samples without characterization of the

microscopic characteristics observed in these questioned or known hair.” Certainly, as

Judge Murphy testified, the Robertson Report did not explicitly state that Agent Malone’s

testimony was incorrect, but there is simply no way in which Cassilly or anyone else

reviewing the Robertson Report could interpret the report as providing no evidence that

Agent Malone testified incorrectly. In addition, Cassilly’s contention that the Robertson

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Report was “check-the-box” and was ambiguous or “confusing” is not consistent with his

other assertion that, in making statements at issue to the circuit court, he was merely

attempting to “recall[] the gist of” a document that he had received many years ago. On

one hand, Cassilly argues that the report contained checked boxes providing ambiguous

information that did not indicate that Agent Malone’s testimony was incorrect, and, on the

other hand, he asserts that he could not recall the content of the report.

Nor are we persuaded that Judge Murphy’s testimony concerning the Robertson

Report is somehow dispositive of whether Cassilly knowingly made false statements of

fact or compels a conclusion that Cassilly did not violate Rule 3.3(a)(1). At the disciplinary

hearing, Judge Murphy, who was accepted as an expert witness in the areas of criminal law

and duty to disclose, opined that Cassilly was not obligated to disclose information that

came out about Agent Malone after Huffington was convicted. With respect to the

Robertson Report, Judge Murphy testified:

It isn’t a situation in which they said [Agent] Malone admitted lying. The

person who looked over [Agent] Malone’s work certainly criticized the way

[Agent] Malone took notes. But my recollection of the document is that the

person didn’t say he is wrong or the science is junk or anything like that. . . .

[T]he document that I reviewed said essentially [Agent] Malone’s testimony

was consistent with the lab analysis. The testing that was done, that it was

not properly documented. He wrote it in pencil, he didn’t date it, he made

some erasures. It is not a situation in which Robertson, if he is the guy that

wrote it, said he got it wrong. The way I read it, and I really can’t tell much

here, but what he testified to was consistent with the lab tests, but he certainly

did a sloppy job documenting his work. . . . This is a review of an expert

witness’s testimony and it again is not one of these situations where the

information is the witness lied. The witness had no clue about what he was

doing. The information supplied by the witness is incorrect. . . . Robertson

himself as I recall didn’t say I don’t know whether he got it right or he got it

wrong. All he said was his testimony appears to be consistent with the lab

tests, but he didn’t document it as well as he should have.

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Contrary to Cassilly’s contention that Judge Murphy’s testimony about the Robertson

Report is “almost word-for[-]word how [he] characterized the Robertson [R]eport in

statements to the court[,]” Cassilly affirmatively represented to the circuit court that there

was no evidence at all that Agent Malone rendered an incorrect conclusion and that the

DOJ had reviewed Agent Malone’s testimony in the case and found nothing wrong. Judge

Murphy did not testify as such. Judge Murphy’s testimony was essentially that the report

(the Robertson Report) did not indicate that Agent Malone had admitted lying but rather

indicated that Agent Malone’s testimony was consistent with the lab analysis/tests and that

he did not document the lab tests as well as he should have in bench notes. Judge Murphy

testified that the report did not explicitly state that Agent Malone got it wrong. Based on

his interpretation of the report, Judge Murphy opined that Cassilly was not required to

disclose the Robertson Report. Significantly, Judge Murphy was not asked to render an

opinion as to whether Cassilly knowingly made false statements to the circuit court in

advising the court that there was no information indicating that Agent Malone’s testimony

was not correct and in stating that the DOJ had advised that Agent Malone testified

properly.

In addition, the transcript of Judge Murphy’s testimony reveals that when he was

asked whether he recalled reading the portion of the Robertson Report in which Robertson

explicitly concluded that he was unable to determine whether Agent Malone performed the

appropriate tests and in a scientifically appropriate manner and that Agent Malone’s

testimony was inconsistent with the bench notes, Judge Murphy responded: “I really don’t.

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I recall reading Robertson’s letter.” Judge Murphy was not asked whether those particular

conclusions of Robertson were inconsistent with the statements that Cassilly made to the

circuit court about the report. Cassilly’s statements to the circuit court about the Robertson

Report do not mirror Judge Murphy’s testimony at the disciplinary hearing, and Judge

Murphy was not asked to render an opinion as to whether Cassilly’s statements violated

Rule 3.3(a)(1). The Robertson Report and the 2014 DOJ letters speak for themselves and,

along with other evidence, demonstrate that Cassilly knowingly made false statements of

fact to the circuit court on four occasions.

Nor are we persuaded that Judge Adams’s testimony compels the conclusion that

Cassilly did not violate Rule 3.3(a)(1). On cross-examination, Deputy Bar Counsel asked

Judge Adams whether she was aware that Cassilly was in possession of one of the 2014

DOJ letters when he represented to the circuit court that Agent Malone’s testimony was

within professional limits. Judge Adams responded: “I don’t know that I was aware at the

time. [] Cassilly’s representation to the Court was that he had received a report years before

that. His representation to the Court was that did not invalidate the agent’s testimony.”

The record in this case demonstrates, though, that Cassilly did not simply represent or

advise the circuit court (Judge Adams) that he had received a report that did not invalidate

Agent Malone’s testimony. Rather, at the pretrial conference in 2016, Cassilly falsely

stated that the DOJ had reviewed Agent Malone’s testimony in the case and found nothing

wrong and, at a motions hearing in 2017, he falsely stated that the FBI had concluded that

Agent Malone had testified properly and done nothing wrong in Huffington’s case. There

is a vast difference between receiving a report with information that does not invalidate an

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expert’s testimony and receiving a report that states an expert’s testimony had been

reviewed and found to contain “nothing wrong” or to be “proper.” As the hearing judge

found, Cassilly knew that the statements that he made to Judge Adams were false.

That Judge Adams testified at the disciplinary hearing that she believes Cassilly to

be “a man of integrity” and that Cassilly contends he had no motive to mislead the circuit

court does not negate the conclusion that Cassilly violated Rule 3.3(a)(1). See Keating,

471 Md. at 649, 243 A.3d at 541; Steinhorn, 462 Md. at 197, 198 A.3d at 828. The

circumstance that Cassilly has maintained a good reputation in the community or may have

had no discernable motive (other than having Huffington’s convictions upheld) for making

false statements to the circuit court is not dispositive of the charged rule violation. As we

stated in Steinhorn, 462 Md. at 197, 198 A.3d at 828, “[w]hat matters for purposes of

finding a[ Rule] 3.3(a)(1) violation is whether an attorney knows that the information he

or she presents to the tribunal is incorrect.” (Citation omitted). Here, clear and convincing

evidence supports the hearing judge’s conclusion that Cassilly violated Rule 3.3(a)(1) by

knowingly making false statements of fact to the circuit court on four occasions.

Rule 3.4(a) (Fairness to Opposing Party and Counsel)

The hearing judge concluded that Cassilly “violated Rule 3.4(a) when he disposed

of the Robertson Report without maintaining a copy in the State’s file and then sought to

destroy the evidence that was the subject of the report.” (Citation omitted).

Rule 3.4(a) provides that “[a]n attorney shall not[] unlawfully obstruct another

party’s access to evidence or unlawfully alter, destroy or conceal a document or other

material having potential evidentiary value. An attorney shall not counsel or assist another

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person to do any such act[.]” (Paragraph break omitted). Comment [2] to Rule 3.4 states

in relevant part:

Documents and other items of evidence are often essential to establish a

claim or defense. Subject to evidentiary privileges, the right of an opposing

party, including the government, to obtain evidence through discovery or

subpoena is an important procedural right. The exercise of that right can be

frustrated if relevant material is altered, concealed or destroyed.

In Attorney Grievance Comm’n v. White, 354 Md. 346, 354, 350, 731 A.2d 447, 452, 450

(1999), this Court overruled an attorney’s exception to the hearing judge’s conclusion that

the attorney violated Rule 3.4(a) where a judge of the United States District Court for the

District of Maryland found, among other things, that the attorney had “engaged in an action

of destruction of parts of an autobiographical manuscript, a substantial portion of which

covered events bearing on her claims before the court” and “that she knowingly and

willfully intended to destroy discoverable and relevant evidence, and that her statements to

the contrary were not believable[.]”

In this case, clear and convincing evidence supports the hearing judge’s conclusion

that Cassilly violated Rule 3.4(a). Cassilly received the Robertson Report in 1999. At the

disciplinary hearing, Cassilly testified that he discarded the Robertson Report and the 1997

Report “five years later or whatever it was” and that he then forgot about them. Cassilly

never provided a copy of the Robertson Report to Huffington’s counsel and did not

maintain a copy of the report in the State’s file. What is more, on August 28, 2003, in

response to the petition to preserve forensic evidence and conduct DNA analysis filed by

Huffington, Cassilly opposed the petition and requested permission from the circuit court

to destroy the forensic evidence in Huffington’s case, i.e., the hairs that Huffington sought

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to have analyzed. The hearing judge rejected Cassilly’s testimony that, at the time he filed

the response to the petition to preserve forensic evidence and conduct DNA testing, he did

not remember that there had been a report reviewing Agent Malone’s testimony. It is well

established that “the hearing judge is in the best position to ascertain the credibility of a

witness and we generally defer to the hearing judge’s credibility determinations.” Attorney

Grievance Comm’n v. Miller, 467 Md. 176, 204, 223 A.3d 976, 993 (2020) (citation

omitted). In short, Cassilly discarded the Robertson Report, did not advise Huffington and

his counsel that he had ever received the report, which was “a document . . . having

potential evidentiary value[,]” Rule 3.4(a), and later sought to have the forensic evidence

that was the subject of the Robertson Report destroyed. Disturbingly, Cassilly made the

request to have the forensic evidence destroyed even though he knew that the accuracy of

Agent Malone’s testimony had been called into question. It is evident that the hearing

judge’s conclusion that Cassilly violated Rule 3.4(a) is supported by clear and convincing

evidence.

Rule 3.8(d) (Special Responsibilities of a Prosecutor)

The hearing judge concluded that Cassilly violated Rule 3.8(d) by failing to disclose

the Robertson Report and the 2014 DOJ letters, which the hearing judge determined were

exculpatory. The hearing judge concluded that Rule 3.8(d) is not limited by Brady or

Maryland Rule 4-263(j).17 The hearing judge determined that the plain language of Rule

17

Maryland Rule 4-263(j) provides that “[e]ach party is under a continuing

obligation to produce discoverable material and information to the other side. A party who

has responded to a request or order for discovery and who obtains further material

information shall supplement the response promptly.”

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3.8(d) supports the conclusion that the disclosure obligation set forth in Rule 3.8(d) extends

after conviction. The hearing judge observed that “Rule 3.8(d) does not make any mention

of exculpatory information obtained only pre-trial or during trial” and instead requires that

a prosecutor “disclose ‘evidence or information’ that ‘tends to negate the guilt of the

accused or mitigates the offense, and, in connection with sentencing, disclose to the defense

and to the tribunal all unprivileged mitigation information known to the prosecutor[.]’”

(Quoting Rule 3.8(d)). The hearing judge explained that Jezic, Bar Counsel’s expert

witness, testified that the requirement set forth in Rule 3.8(d) that a prosecutor disclose

information that “‘tends to negate [the] guilt [of the accused] or mitigates the offense’ is a

‘very low standard,’ and is far lower than the Brady materiality requirement.”

Although Cassilly does not specifically mention Rule 3.8(d), he excepts to the

hearing judge’s conclusion that the Robertson Report contained exculpatory information

and contends, among other things, that the hearing judge failed to give any credibility or

weight to Judge Murphy’s testimony that the document was not exculpatory. Cassilly

argues that the hearing judge’s conclusion that the failure to provide the 2014 DOJ letters

was a discovery violation is erroneous because at the time the DOJ issued its letters

criticizing Agent Malone’s testimony, DNA testing had confirmed that Huffington’s DNA

did not match the hairs tested by Agent Malone, Huffington had been granted a new trial,

and Cassilly no longer intended to call Agent Malone as a witness for the State. In addition,

Cassilly argues that, at the disciplinary hearing, Judge Murphy testified that “there is a

different analysis of exculpatory based on whether the” obligation to disclose evidence

arises pretrial or post-trial. We overrule Cassilly’s exception as to the hearing judge’s

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determination that he violated Rule 3.8(d) by failing to disclose the Robertson Report.

Rule 3.8(d) provides that:

The prosecutor in a criminal case shall[] . . . 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, and, in connection

with sentencing, disclose to the defense and to the tribunal all unprivileged

mitigating information known to the prosecutor, except when the prosecutor

is relieved of this responsibility by a protective order of the tribunal[.]

Recently, in Canales-Yanez v. State, 472 Md. 132, 135, 158, 244 A.3d 1096, 1098,

1111-12 (2021), a murder case in which a defendant asserted a Brady violation after

conviction but prior to sentencing, this Court discussed Brady violations, explaining:

“Brady v. Maryland and its progeny guarantee to a criminal defendant

who stands trial the right to receive material exculpatory and impeachment

evidence in the possession of the State.” Byrd v. State, 471 Md. 359, 372,

241 A.3d 913 (2020) (citing Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194,

10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763,

31 L.Ed.2d 104 (1972)). . . .

In order to establish that the State has violated his due process rights

under Brady v. Maryland, Petitioner must establish: “(1) that the prosecutor

suppressed or withheld evidence that is (2) favorable to the defense—either

because it is exculpatory, provides a basis for mitigation of sentence, or

because it provides grounds for impeaching a witness—and (3) that the

suppressed evidence is material.” Ware, 348 Md. [19,] 38, 702 A.2d 699

[(1997)] (citations omitted).

In Canales-Yanez, 472 Md. at 159, 244 A.3d at 1112, we stated that

the Supreme Court has held that evidence is material only if there is a

reasonable probability that, had the evidence been disclosed to the defense,

the result of the proceeding would have been different. A reasonable

probability is a probability sufficient to undermine confidence in the

outcome. This Court has interpreted a reasonable probability within this

context as meaning a substantial possibility.

(Cleaned up). In assessing materiality within the context of suppressed impeachment

evidence, this Court has identified several factors, including:

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[1] the specificity of the defendant’s request for disclosure of materials; [2]

the closeness of the case against the defendant and the cumulative weight of

the other independent evidence of guilt; [3] the centrality of the particular

witness to the State’s case; [4] the significance of the inducement to testify;

[5] whether and to what extent the witness’s credibility is already in question;

and [6] the prosecutorial emphasis on the witness’s credibility in closing

arguments. Some of those considerations may point in one direction, some

in another. The ultimate determination of materiality must arise from a

composite, an amalgam, of them.

Id. at 159-60, 244 A.3d at 1112 (cleaned up) (alterations in original). In Canales-Yanez,

id. at 160, 244 A.3d at 1112, this Court reviewed the factors used to determine materiality

and affirmed the trial court’s ruling that the suppressed evidence was not material because

there was “not a reasonable probability (or, put otherwise, a substantial possibility) that it

would have altered the outcome of the trial.” Our holding in Canales-Yanez, id. at 167,

244 A.3d at 1116, was limited to analyzing whether the undisclosed evidence was material

to the defendant’s case—not an analysis of whether the undisclosed evidence was

exculpatory in the first instance. Because we concluded that the evidence was not material

and did not hamper the defendant’s trial strategy, we concluded that the nondisclosure of

the evidence did not constitute a violation of Brady. See Canales-Yanez, 472 Md. at 167,

244 A.3d at 1117.

Generally speaking, “[f]or Brady v. Maryland purposes, exculpatory evidence is

evidence that goes to the heart of the defendant’s guilt or innocence, while impeachment

evidence is that which has the potential to alter the jury’s assessment of the credibility of a

significant prosecution witness.” Byrd v. State, 243 Md. App. 616, 624, 221 A.3d 1085,

1089-90 (2019), aff’d, 471 Md. 359, 241 A.3d 913 (2020) (citing United States v. Avellino,

136 F.3d 249, 255 (2d Cir. 1998)). This Court has stated that “[i]mpeachment evidence,

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as well as exculpatory evidence, is evidence favorable to an accused.” Conyers v. State,

367 Md. 571, 597, 790 A.2d 15, 31 (2002) (cleaned up). See also Williams v. State, 416

Md. 670, 692, 7 A.3d 1038, 1051 (2010) (“In order to establish a Brady violation, petitioner

must prove that the State suppressed favorable evidence.”).

As we observed in Grandison v. State, 390 Md. 412, 432, 889 A.2d 366, 378 (2005),

“Brady jurisprudence predominantly addresses the materiality prong[,]” and not whether

undisclosed evidence is favorable to the defense, i.e., exculpatory. (Citations omitted). In

Grandison, 390 Md. at 433, 889 A.2d at 378, we observed that because a defendant’s claim

of a Brady violation ultimately turned on whether the evidence was material, we assumed

for the sake of argument that the evidence was withheld and was favorable to the defendant.

In other words, we did not determine whether the evidence was exculpatory in the first

place.

In Imbler v. Pachtman, 424 U.S. 409, 427 (1976), a case in which the Supreme Court

held that prosecutors have the same absolute immunity under 42 U.S.C. § 1983 (Civil

Action for Deprivation of Rights) that they have under common law, the Supreme Court

explained that “the ultimate fairness” of the criminal justice system “could be weakened

by subjecting prosecutors” to liability under 42 U.S.C. § 1983, stating:

Various post-trial procedures are available to determine whether an accused

has received a fair trial. These procedures include the remedial powers of

the trial judge, appellate review, and state and federal post-conviction

collateral remedies. In all of these the attention of the reviewing judge or

tribunal is focused primarily on whether there was a fair trial under law. This

focus should not be blurred by even the subconscious knowledge that a post-

trial decision in favor of the accused might result in the prosecutor’s being

called upon to respond in damages for his error or mistaken judgment.

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(Footnote omitted). The Supreme Court explained that a prosecutor has a duty to disclose

evidence indicative of innocence or mitigation, stating:

The possibility of personal liability also could dampen the

prosecutor’s exercise of his duty to bring to the attention of the court

or of proper officials all significant evidence suggestive of innocence

or mitigation. At trial this duty is enforced by the requirements of due

process, but after a conviction the prosecutor also is bound by the

ethics of his office to inform the appropriate authority of after-

acquired or other information that casts doubt upon the correctness of

the conviction. Cf. ABA Code of Professional Responsibility s EC 7-

13 (1969); ABA Standards, supra, s 3.11.

Imbler, 424 U.S. at 427 n.25. The Supreme Court recognized that the prospect of personal

liability in civil litigation could undermine a prosecutor’s fulfillment of the duty to disclose

information that casts doubt on the correctness of a conviction and that the duty exists

postconviction. See id.

We have not had occasion to interpret or construe Rule 3.8(d) previously and

Cassilly has not directed our attention to any case in which Rule 3.8(d) or a similar rule has

been construed by another court. Cassilly’s exceptions essentially raise the issue of

whether a prosecutor’s obligation under Rule 3.8(d)—to “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 disclosures to be made after trial,

such as in postconviction proceedings, and call upon us to explain the meaning of the

language “tends to negate the guilt of the accused[.]” In Green v. State, 456 Md. 97, 125,

171 A.3d 1162, 1177-78 (2017), we discussed the standard for interpreting a Maryland

Rule:

A court interprets a Maryland Rule by using the same canons of construction

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that the court uses to interpret a statute. First, the court considers the Rule’s

plain language in light of: (1) the scheme to which the Rule belongs; (2) the

purpose, aim, or policy of this Court in adopting the Rule; and (3) the

presumption that this Court intends the Rules and this Court’s precedent to

operate together as a consistent and harmonious body of law. If the Rule’s

plain language is unambiguous and clearly consistent with the Rule’s

apparent purpose, the court applies the Rule’s plain language. Generally, if

the Rule’s plain language is ambiguous or not clearly consistent with the

Rule’s apparent purpose, the court searches for rulemaking intent in other

indicia, including the history of the Rule or other relevant sources intrinsic

and extrinsic to the rulemaking process, in light of: (1) the structure of the

Rule; (2) how the Rule relates to other laws; (3) the Rule’s general purpose;

and (4) the relative rationality and legal effect of various competing

constructions.

Where a Rule’s language is clear, a court neither adds nor deletes

language so as to reflect an intent not evidenced in the plain and

unambiguous language of the Rule. Unambiguous language will be given its

usual, ordinary meaning unless doing so creates an absurd result.

(Cleaned up).

With these principles in mind, we turn first to the plain language of Rule 3.8(d) and

address whether the Rule applies to postconviction proceedings. By its plain language,

Rule 3.8(d) states that a prosecutor in a criminal case shall “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, . . . except when the prosecutor is relieved of

this responsibility by a protective order of the tribunal[.]” The plain language of Rule

3.8(d) neither excludes nor includes postconviction proceedings and instead simply

imposes an obligation on a prosecutor to disclose all evidence or information that tends to

negate the guilt of the accused or mitigates the offense. The guilt of the accused may be

challenged at various phases of a criminal proceeding—pretrial, during trial, and after trial

on appeal and in postconviction proceedings. In this case, Huffington clearly challenged

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his conviction and guilt post-trial in a variety of ways—through appeals, petitions for

postconviction relief, an application for leave to appeal the denial of the second petition

for postconviction relief, a petition for a writ of habeas corpus, a petition to preserve

forensic evidence and conduct DNA analysis, and a petition for a writ of actual innocence.

Comment [1] to Rule 3.8 provides that “[a] prosecutor has the responsibility of a minister

of justice” and such a “responsibility carries with it specific obligations to see that the

defendant is accorded procedural justice and that guilt is decided upon the basis of

sufficient evidence.” In our view, the plain language of Rule 3.8(d) and accompanying

comment lead to the conclusion that a prosecutor’s disclosure obligations under Rule 3.8(d)

apply pretrial, during trial, and after trial on appeal and in postconviction proceedings in

which a defendant challenges guilt. To be sure, the Rule does not expressly refer to post-

trial proceedings, but it is well established that a defendant may challenge guilt post-trial.18

See, e.g., Md. Code Ann., Crim. Proc. (2001, 2018 Repl. Vol.) (“CP”) §§ 8-301 (Petition

for Writ of Actual Innocence), 8-201 (Petition for DNA Testing and Preservation of

Scientific Identification Evidence), 7-102 (Right of Convicted Person to Begin Proceeding

Under Uniform Postconviction Procedure Act).

The phrase “all evidence or information known to the prosecutor that tends to negate

the guilt of the accused” means exactly what it says. Black’s Law Dictionary defines the

word “tend” as “[t]o be disposed toward (something)[,]” “[t]o serve, contribute, or conduce

18

We note that Rule 3.8(d) expressly refers only to one phase of a criminal

proceeding—sentencing—in a separate clause and requires that, with respect to sentencing,

a prosecutor in a criminal case must “disclose to the defense and to the tribunal all

unprivileged mitigating information known to the prosecutor[.]”

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in some degree or way; to have a more or less direct bearing or effect[,]” and “[t]o be

directed or have a tendency to (an end, object, or purpose).” Tend, Black’s Law Dictionary

(11th ed. 2019). “Negate” means “[t]o deny” and “[t]o nullify; to render ineffective.”

Negate, Black’s Law Dictionary (11th ed. 2019). And, generally speaking, “guilt” is “[t]he

fact, state, or condition of having committed a wrong, esp[ecially] a crime[.]” Guilt,

Black’s Law Dictionary (11th ed. 2019). The meaning of the phrase in Rule 3.8(d), when

the key words are accorded their plain language interpretation as set forth in Black’s Law

Dictionary, is that a prosecutor is obligated to timely disclose all evidence or information

known to the prosecutor that shows in some degree or way that the guilt of the accused is

nullified, i.e., that serves to render ineffective or deny the guilt of the accused. Clearly,

such evidence or information may come to light after a conviction and require that a

prosecutor timely disclose that evidence or information.

Moreover, the language in Comment [1] to the Rule states that a prosecutor’s

“responsibility carries with it specific obligations to see that the defendant is accorded

procedural justice and that guilt is decided upon the basis of sufficient evidence.” This

language leads to the conclusion that instances in which a defendant challenges procedural

matters, whether pretrial, during trial, or after trial, give rise to a prosecutor’s duty to

disclose information that tends to negate the guilt of the accused. Thus, a plain reading of

Rule 3.8(d) and Comment [1] to the Rule leads to the determination that the Rule applies

to a prosecutor’s obligation to disclose information that negates guilt in postconviction

proceedings.

A comprehensive review of the rulemaking history of Rule 3.8 reinforces the

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conclusion that Rule 3.8(d) applies to postconviction proceedings. Rule 3.8 was adopted

by this Court in 1986 and took effect on January 1, 1987. Because the history of our Rule

3.8 is entwined with the history of the American Bar Association (“ABA”) Model Rules

of Professional Conduct, and specifically ABA Model Rule 3.8, we will also discuss the

relevant history of the ABA Model Rules.

In 1908, the ABA adopted the Canons of Ethics, which remained in effect until

1969. Canon 5 provided:

5. The Defense or Prosecution of Those Accused of Crime.

It is the right of the lawyer to undertake the defense of a person accused of

crime, regardless of his personal opinion as to the guilt of the accused;

otherwise innocent persons, victims only of suspicious circumstances, might

be denied proper defense. Having undertaken such defense, the lawyer is

bound by all fair and honorable means, to present every defense that the law

of the land permits, to the end that no person may be deprived of life or

liberty, but by due process of law.

The primary duty of a lawyer engaged in public prosecution is not to

convict, but to see that justice is done. The suppression of facts or the

secreting of witnesses capable of establishing the innocence of the accused

is highly reprehensible.

On August 12, 1969, the ABA House of Delegates adopted the ABA Model Code

of Professional Responsibility, which remained in effect until 1983. The Model Code

included Canons, along with accompanying Ethical Considerations (“EC”) and

Disciplinary Rules (“DR”). Canon 7 of the Model Code provided that “a lawyer should

represent a client zealously within the bounds of the law[.]” (Cleaned up). EC 7-13

provided:

The responsibility of a public prosecutor differs from that of the usual

advocate; his duty is to seek justice, not merely to convict. This special duty

exists because: (1) the prosecutor represents the sovereign and therefore

should use restraint in the discretionary exercise of governmental powers,

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such as in the selection of cases to prosecute; (2) during trial the prosecutor

is not only an advocate but he also may make decisions normally made by

an individual client, and those affecting the public interest should be fair to

all; and (3) in our system of criminal justice the accused is to be given the

benefit of all reasonable doubts. With respect to evidence and witnesses, the

prosecutor has responsibilities different from those of a lawyer in private

practice: the prosecutor should make timely disclosure to the defense of

available evidence, known to him, that tends to negate the guilt of the

accused, mitigate the degree of the offense, or reduce the punishment.

Further, a prosecutor should not intentionally avoid pursuit of evidence

merely because he believes it will damage the prosecutor’s case or aid the

accused.

(Footnote omitted). DR 7-103, entitled “Performing the Duty of Public Prosecutor or Other

Government Lawyer[,]” of the Model Code provided in its entirety:

(A) -A public prosecutor or other government lawyer shall not

institute or cause to be instituted criminal charges when he knows or it is

obvious that the charges are not supported by probable cause.

(B) -A public prosecutor or other government lawyer in criminal

litigation shall make timely disclosure to counsel for the defendant, or to the

defendant if he has no counsel, of the existence of evidence, known to the

prosecutor or other government lawyer, that tends to negate the guilt of the

accused, mitigate the degree of the offense, or reduce the punishment.

In 1977, the ABA Commission on Evaluation of Professional Standards, also known

as the Kutak Commission, was created to draft new Model Rules of Professional Conduct.

In a report to the ABA House of Delegates in 1983, the Kutak Commission proposed that

the text of ABA Model Rule 3.8(d) provide as follows:

The prosecutor in a criminal case shall[] . . . 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, and, in connection

with sentencing, disclose to the defense and to the tribunal all unprivileged

mitigating information known to the prosecutor, except when the prosecutor

is relieved of this responsibility by a protective order of the tribunal[.]

The Kutak Commission proposed that Comment 1 to ABA Model Rule 3.8 provide in

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relevant part: “A prosecutor has the responsibility of a minister of justice and not simply

that of an advocate. This responsibility carries with it specific obligations to see that the

defendant is accorded procedural justice and that guilt is decided upon the basis of

sufficient evidence.” The Kutak Commission also proposed that Comment 3 provide: “The

exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective

order from the tribunal if disclosure of information to the defense could result in substantial

harm to an individual or to the public interest.” In 1983, the ABA House of Delegates

adopted the ABA Model Rules of Professional Conduct. At that time, the ABA House of

Delegates adopted ABA Model Rule 3.8(d) and the above-quoted portions of Comments 1

and 3, as proposed by the Kutak Commission, without amendment.

On October 27, 1983, the Chief Judge of this Court appointed the Select Committee

of the Court of Appeals of Maryland to Study the ABA Model Rules of Professional

Conduct to study the Model Rules and to make recommendations to the Court concerning

their adoption in Maryland. The Select Committee submitted to this Court a report

recommending adoption of the ABA Model Rules of Professional Conduct with various

proposed amendments in the form of the Maryland Rules of Professional Conduct and

Comments. The Select Committee reported that it “unanimously agreed that the Model

Rules provide[d] a better format, and in most respect, a better substantive standard for

lawyer conduct than d[id] the Maryland [Code of Professional Responsibility].” As such,

the Select Committee recommended the adoption of the ABA Model Rules and the

accompanying Comments, with certain changes, to replace the existing Maryland Code of

Professional Responsibility.

- 62 -

In an appendix to the report, the Select Committee advised that the “Appendix

restate[d] the Model Rules as adopted with the recommended changes of the Select

[C]ommittee shown in legislative style, i.e., deletions are indicated by [ ] and additions by

the use of CAPITALS.” In the appendix, the Select Committee proposed adoption of ABA

Model Rule 3.8(d) with no deletions or additions as follows:

The prosecutor in a criminal case shall[] . . . 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, and, in connection

with sentencing, disclose to the defense and to the tribunal all unprivileged

mitigating information known to the prosecutor, except when the prosecutor

is relieved of this responsibility by a protective order of the tribunal[.]

In a meeting of the Standing Committee on Rules of Practice and Procedure (“the

Rules Committee”) on February 15, 1985, a member of the Select Committee presented

the proposed version of Maryland Rule of Professional Conduct 3.8 for consideration. The

minutes of the meeting reflect that the Select Committee had made no change to ABA

Model Rule 3.8:

[The Select Committee member] said that the Select Committee had

made no changes to [ABA Model] Rule 3.8. The State Bar Association

Criminal Law Section essentially agrees with this version of the Rule. They

had sent in a comment asking for additional requirements that prosecutors

must behave, must make timely disclosures, etc. Judge Wilner asked if any

comments had been received from State’s Attorneys, and [the member]

replied that none had been received.

The meeting minutes reflect that section (d) of Rule 3.8 was not specifically mentioned.

On April 15, 1986, this Court issued a Rules Order adopting amendments to the

Maryland Rules of Professional Conduct, to take effect on January 1, 1987. At the time,

Rule 3.8(d) read, just as the Select Committee had proposed, as follows:

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The prosecutor in a criminal case shall[] . . . 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, and, in connection

with sentencing, disclose to the defense and to the tribunal all unprivileged

mitigating information known to the prosecutor, except when the prosecutor

is relieved of this responsibility by a protective order of the tribunal[.]

The Comment to Rule 3.8 stated in relevant part: “A prosecutor has the responsibility of a

minister of justice and not simply that of an advocate. This responsibility carries with it

specific obligations to see that the defendant is accorded procedural justice and that guilt

is decided upon the basis of sufficient evidence.” The Comment further stated: “The

exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective

order from the tribunal if disclosure of information to the defense could result in substantial

harm to an individual or to the public interest.” Rule 3.8(d) and the Comment, as adopted

by this Court, directly mirrored ABA Model Rule 3.8(d) and the Comments to ABA Model

Rule 3.8, respectively, as adopted by the ABA House of Delegates in 1983. A note entitled

“Code Comparison” accompanying Rule 3.8 stated:

DR 7-103(A) provides that “A public prosecutor . . . shall not institute . . .

criminal charges when he knows or it is obvious that the charges are not

supported by probable cause.” DR 7-103(B) provides that “A public

prosecutor . . . shall make timely disclosure . . . of the existence of evidence,

known to the prosecutor . . . that tends to negate the guilt of the accused,

mitigate the degree of the offense, or reduce the punishment.”

(Ellipses in original).

In 1997, the ABA formed the Ethics 2000 Commission to review the ABA Model

Rules of Professional Conduct. The Ethics 2000 Commission submitted a report to the

ABA House of Delegates at the August 2001 Annual Meeting. The House of Delegates

debated the report at both the August 2001 Annual Meeting and the February 2002 Midyear

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Meeting. At the end of the February 2002 Midyear Meeting, no changes were made to

ABA Model Rule 3.8(d) as a result of the Ethics 2000 Commission’s report. At that time,

however, ABA Model Rule 3.8(e) was amended and new paragraphs (e) and (f) were

adopted.19

In response to the ABA’s amendment to its Model Rules, this Court appointed a

Select Committee to Study the Ethics 2000 Amendments to the ABA Model Rules of

Professional Conduct. The Select Committee submitted to this Court a report

recommending adoption of the Ethics 2000 Amendments to the ABA Model Rules of

19

As a result of the Ethics 2000 Commission report, ABA Model Rule 3.8 was

amended, with paragraph (e) relocating to paragraph (f), and a new paragraph (e) added, to

provide:

The prosecutor in a criminal case shall:

...

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to

present evidence about a past or present client unless the prosecutor

reasonably believes:

(1) the information sought is not protected from disclosure by any

applicable privilege;

(2) the evidence sought is essential to the successful completion of an

ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature

and extent of the prosecutor’s action and that serve a legitimate law

enforcement purpose, refrain from making extrajudicial comments that have

a substantial likelihood of heightening public condemnation of the accused

and exercise reasonable care to prevent investigators, law enforcement

personnel, employees or other persons assisting or associated with the

prosecutor in a criminal case from making an extrajudicial statement that the

prosecutor would be prohibited from making under Rule 3.6 or this Rule.

- 65 -

Professional Conduct with various proposed amendments to the MLRPC and Comments.

On February 8, 2005, this Court issued a Rules Order adopting amendments to the MLRPC,

to take effect on July 1, 2005. At that time, the language of Rule 3.8(d) remained

unchanged.

The Comment to Rule 3.8, though, was split into separate numbered Comments. As

such, Comment [1] to Rule 3.8 read in relevant part: “A prosecutor has the responsibility

of a minister of justice and not simply that of an advocate. This responsibility carries with

it specific obligations to see that the defendant is accorded procedural justice and that guilt

is decided upon the basis of sufficient evidence.” Comment [3] to Rule 3.8 stated: “The

exception in paragraph (d) recognizes that a prosecutor may seek an appropriate protective

order from the tribunal if disclosure of information to the defense could result in substantial

harm to an individual or to the public interest.” A note entitled “Model Rules Comparison”

stated: “Rule 3.8 has been rewritten to retain elements of existing Maryland language and

to incorporate some changes from the Ethics 2000 Amendments to the ABA Model Rules.

ABA Model Rule 3.8(e) has not been adopted.”20

20

Although we did not adopt ABA Model Rule 3.8(e), our Rule 3.8(e) was

substantially similar to ABA Model Rule 3.8(f) and provided:

The prosecutor in a criminal case shall: . . . except for statements that are

necessary to inform the public of the nature and extent of the prosecutor’s

action and that serve a legitimate law enforcement purpose, refrain from

making extrajudicial comments that have a substantial likelihood of

heightening public condemnation of the accused and exercise reasonable care

to prevent an employee or other person under the control of the prosecutor in

a criminal case from making an extrajudicial statement that the prosecutor

would be prohibited from making under Rule 3.6 or this Rule.

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On July 1, 2011, the Rules Committee submitted to this Court its One Hundred

Seventy-First Report, and included proposed amendments to certain Maryland Rules,

including Rule 3.8, to make a stylistic change by replacing the term “pro se” with the term

“self-represented.” No other changes to Rule 3.8 were proposed. On September 8, 2011,

this Court issued a Rules Order adopting the amendment to Rule 3.8, to take effect on

January 1, 2012.

Effective July 1, 2016, MLRPC 3.8 was renamed MARPC 3.8 and relocated to Title

19 of the Maryland Rules, and renumbered as Maryland Rule 19-303.8, without substantive

change, along with all of the other MLRPCs. The note concerning “Model Rules

Comparison” stated as it previously had that Rule 3.8 “has been rewritten to retain elements

of existing Maryland language and to incorporate some changes from the Ethics 2000

Amendments to the ABA Model Rules. ABA Model Rule 3.8(e) has not been adopted.”

Thus, a review of its rulemaking history demonstrates that since January 1, 1987,

Rule 3.8(d) has provided and continues to provide as follows:

The prosecutor in a criminal case shall[] . . . 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, and, in connection

with sentencing, disclose to the defense and to the tribunal all unprivileged

mitigating information known to the prosecutor, except when the prosecutor

is relieved of this responsibility by a protective order of the tribunal[.]

In 2008, however, ABA Model Rule 3.8 was amended to add new paragraphs (g)

and (h) to specifically set forth postconviction obligations for prosecutors and provide as

follows:

(g) When a prosecutor knows of new, credible and material evidence creating

a reasonable likelihood that a convicted defendant did not commit an offense

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of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or

authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a

court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts

to cause an investigation, to determine whether the defendant was

convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing

that a defendant in the prosecutor’s jurisdiction was convicted of an offense

that the defendant did not commit, the prosecutor shall seek to remedy the

conviction.

Two new Comments were also added to ABA Model Rule 3.8:

[7] When a prosecutor knows of new, credible and material evidence creating

a reasonable likelihood that a person outside the prosecutor’s jurisdiction was

convicted of a crime that the person did not commit, paragraph (g) requires

prompt disclosure to the court or other appropriate authority, such as the chief

prosecutor of the jurisdiction where the conviction occurred. If the

conviction was obtained in the prosecutor’s jurisdiction, paragraph (g)

requires the prosecutor to examine the evidence and undertake further

investigation to determine whether the defendant is in fact innocent or make

reasonable efforts to cause another appropriate authority to undertake the

necessary investigation, and to promptly disclose the evidence to the court

and, absent court-authorized delay, to the defendant. Consistent with the

objectives of Rules 4.2 and 4.3, disclosure to a represented defendant must

be made through the defendant’s counsel, and, in the case of an unrepresented

defendant, would ordinarily be accompanied by a request to a court for the

appointment of counsel to assist the defendant in taking such legal measures

as may be appropriate.

[8] Under paragraph (h), once the prosecutor knows of clear and convincing

evidence that the defendant was convicted of an offense that the defendant

did not commit, the prosecutor must seek to remedy the conviction.

Necessary steps may include disclosure of the evidence to the defendant,

requesting that the court appoint counsel for an unrepresented indigent

defendant and, where appropriate, notifying the court that the prosecutor has

knowledge that the defendant did not commit the offense of which the

defendant was convicted.

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The Annotation accompanying ABA Model Rule 3.8 explains, in relevant part:

In 2008 paragraphs (g) and (h) were added to Rule 3.8. They create post-

conviction duties for prosecutors to disclose “new, credible and material

evidence” they come to know of that “creat[es] a reasonable likelihood that

a convicted defendant did not commit an offense” (paragraph (g)), and to

“seek to remedy [a] conviction” when they come to know of “clear and

convincing evidence establishing that a defendant in the prosecutor’s

jurisdiction” did not commit the offense for which he or she was convicted

(paragraph (h)).

(Alterations in original) (citations omitted). ABA Model Rule 3.8(d) remained the same.

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.

The 2008 amendment of ABA Model Rule 3.8 was intended to codify the ethical

principle recognized by the Supreme Court as early as 1976 in Imbler, namely, that

prosecutors are bound after a conviction to disclose information that casts doubt on the

correctness of the conviction. In a report dated February 2008, accompanying the

Recommendation of the ABA Section of Criminal Justice that proposed paragraphs (g) and

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(h) be added to ABA Model Rule 3.8, authored by Stephen Saltzburg, the Chair of the ABA

Section of Criminal Justice, Saltzburg stated in pertinent part:

The United States Supreme Court recognized in Imbler v. Pachtman,

424 U.S. 409, 427 n. 25 (1976), that prosecutors are “bound by the ethics of

[their] office to inform the appropriate authority of after-acquired or other

information that casts doubt upon the correctness of the conviction.” Further,

when a prosecutor concludes upon investigation of such evidence that an

innocent person was convicted, it is well recognized that the prosecutor has

an obligation to endeavor to rectify the injustice. These obligations have not,

however, been codified in Rule 3.8 of the ABA Model Rules of Professional

Conduct, which identifies the “Special Responsibilities of a Prosecutor.”

Proposed Rules 3.8(g) and (h), and the accompanying Comments would

rectify this omission.

(Alteration in original) (footnote omitted). In addition, Saltzburg stated: “Model Rule 3.8

already exists. This recommendation will add two provisions in order to strengthen the

responsibility of prosecutors to take action when confronted with evidence of innocence.”

It is clear that, based on the Supreme Court’s holding in Imbler and ABA Model Rule

3.8(d), the obligation to disclose post-trial information that casts doubt on a conviction

already existed. Indeed, in Imbler, 424 U.S. at 427 n.25, in discussing a prosecutor’s post-

trial duty to disclose information that would call into question a conviction, the Supreme

Court cited ABA Model Code of Professional Responsibility EC 7-13. The amendment of

the ABA Model Rule 3.8 to add paragraphs (g) and (h) made the post-trial disclosure

requirement explicit. Requiring such disclosure is consistent with the plain language of

our Rule 3.8(d), under which a prosecutor must disclose evidence that tends to negate the

guilt of the accused.

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

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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, or our

case law concerning Brady to construe Rule 3.8(d) to apply only to pretrial or trial

disclosures.21 Nor would it be consistent with our obligation to protect the public.

With these principles in mind, we conclude that clear and convincing evidence

supports the hearing judge’s conclusion that Cassilly violated Rule 3.8(d) by failing to

disclose the Robertson Report to Huffington’s counsel, as it constituted evidence that

tended to negate Huffington’s guilt. The plain language of Rule 3.8(d) sets forth its own

standard for disclosure, requiring the disclosure of “all evidence or information known to

the prosecutor that tends to negate the guilt of the accused or mitigates the offense,” which

is similar to the language used in Brady and our case law describing the requirement to

disclose evidence that is “favorable to the defense—either because it is exculpatory,

provides a basis for mitigation of sentence, or because it provides grounds for impeaching

a witness[,]” Canales-Yanez, 472 Md. at 158, 244 A.3d at 1111-12 (citation omitted).

Although the language is slightly different, clearly, evidence that tends to negate the guilt

of the accused is a close cousin to exculpatory evidence.

Maryland Rule 4-263(d), concerning a State’s Attorney’s disclosure requirements

21

Given, however, that ABA Model Rule 3.8 has been amended to expressly address

postconviction obligations for prosecutors in paragraphs (g) and (h), we think it prudent

that a similar amendment of Rule 3.8 be considered by our Rules Committee and we refer

the matter to the Rules Committee.

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pretrial, provides in subsection (5) that “the State’s Attorney shall provide to the defense[]

. . . Exculpatory Information. All material or information in any form, whether or not

admissible, that tends to exculpate the defendant or negate or mitigate the defendant’s guilt

or punishment as to the offense charged[.]” This language closely tracks a prosecutor’s

disclosure requirements under Rule 3.8(d)—that the prosecutor must “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[.]” Under Brady, “exculpatory

evidence is evidence that goes to the heart of the defendant’s guilt or innocence[,]” Byrd,

243 Md. App. at 624, 221 A.3d at 1089 (citation omitted), and “is evidence favorable to an

accused[,]” Conyers, 367 Md. at 597, 790 A.2d at 31 (cleaned up).

The hearing judge correctly determined that information in the Robertson Report

concerning Agent Malone’s testimony was exculpatory.22 In the report, Robertson stated

that there was “insufficient documentation to determine if the hair comparison was

performed in a scientifically acceptable manner” and that “[t]he results [were] not

adequately documented in the notes.” These determinations were highly relevant to the

22

We are unpersuaded by Cassilly’s contention that the hearing judge failed to give

sufficient credibility or weight to Judge Murphy’s expert testimony as to whether the

Robertson Report or 2014 DOJ letters constituted exculpatory evidence. Certainly, in her

opinion, the hearing judge expressly credited Jezic’s expert testimony. That does not mean,

however, that the hearing judge failed to consider Judge Murphy’s testimony. As is well

established, “[g]enerally, a hearing judge maintains a great deal of discretion in

determining which evidence to rely upon” and “in making his or her findings of fact, the

hearing judge is permitted to pick and choose which evidence to rely upon from the

conflicting array of facts presented.” Miller, 467 Md. at 195, 223 A.3d at 987 (cleaned

up); see also Attorney Grievance Comm’n v. Kepple, 432 Md. 214, 225, 68 A.3d 797, 803

(2013) (“[T]he hearing judge is appropriately responsible for, and charged with, weighing

the credibility of witnesses and resolving any conflict in the evidence.” (Cleaned up)).

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reliability and accuracy of Agent Malone’s trial testimony and constituted evidence that

tended to negate Huffington’s guilt. These conclusions, especially when considered in

light of the other information that had already come to bear concerning credibility issues

with Agent Malone (e.g., the information provided by the DOJ to Cassilly concerning

Agent Malone’s false testimony in the Hastings case), constituted exculpatory evidence,

i.e., evidence favorable to Huffington that tended to negate his guilt.23

At Huffington’s second trial, notwithstanding other evidence presented by the State,

key forensic evidence consisted of hair samples recovered from Becker’s trailer, which

Agent Malone testified “microscopically matched the head hairs of [Huffington] – that is,

they were indistinguishable from [Huffington’s] head hairs; you could not tell them apart.”

Agent Malone essentially identified Huffington as the source of the hairs recovered from

Becker’s trailer and in doing so identified Huffington as the criminal agent. To be sure, on

cross-examination, Agent Malone acknowledged that microscopic hair comparison cannot

be utilized as a means of positive personal identification; but, this did not contradict his

testimony that the hair sample at issue was identical to Huffington’s hair.

In the circuit court’s opinion granting a new trial, which was admitted into evidence

at the disciplinary hearing, the circuit court stated that Agent Malone’s testimony “was the

23

We note that both the Robertson Report and the 2014 DOJ letters would obviously

have constituted impeachment evidence had Cassilly intended to call Agent Malone at the

third trial, as the report and letters would have had “the potential to alter the jury’s

assessment of the credibility of a significant prosecution witness[,]” Byrd, 243 Md. App.

at 624, 221 A.3d at 1090 (citation omitted), and would have been relevant if Agent Malone

testified, see Adams v. State, 165 Md. App. 352, 380-81, 885 A.2d 833, 850 (2005), cert.

denied, 391 Md. 577, 894 A.2d 545 (2006).

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first piece of evidence the State referenced in its closing argument regarding [Huffington]’s

connection to Becker’s murder, as well as was referenced by the State in its opening

statement.” (Footnote omitted). The circuit court noted that, during the State’s closing

argument, the prosecutor stated that “the FBI determined that the head hair found on the

stocking and garter of [] Becker and the sheet from the bed where [Becker] was killed, was

microscopically identical to the head hair of this defendant.” At the disciplinary hearing,

Bar Counsel’s expert, Jezic, testified that, in the circuit court’s opinion granting a new trial,

the court “reference[d] how the prosecutor in closing mentioned as the number one piece

of evidence t[ying] Huffington to Diane Becker’s murder, was the opinion of [Agent]

Malone; and, the prosecutor said that [Agent] Malone provided testimony that the hairs

were microscopically identical.” It is plain that the information contained in 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 as the criminal

agent. Jezic testified that, in his opinion,

if the testimony of [Agent] Malone with respect to these hairs was either

challenged with respect to the items in the Robertson Report via cross, or

expert testimony would have been provided attacking his opinion consistent

with the Robertson Report, that would have tended to negate the guilt of []

Huffington, that low standard tended to negate, or would have tended to

mitigate the punishment at sentencing when he was -- when the death penalty

was overturned and he was given two consecutive life sentences plus 18

years.

Jezic’s testimony alone supports the conclusion that the Robertson Report was exculpatory

evidence that tended to negate Huffington’s guilt, and that, as such, Cassilly was required

under Rule 3.8(d) to make timely disclosure of the report to the defense, which he failed to

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do.24

24

Cassilly also excepts to the hearing judge’s finding that there was a failure to

disclose the 2014 DOJ letters and that the failure to provide the letters constituted a

discovery violation. According to Cassilly, he disclosed the letters by contacting the DOJ

and directing it to mail a copy of the 2014 DOJ letters to Huffington’s counsel. As such,

Cassilly contends that his action resulted in defense counsel receiving the 2014 DOJ letter.

We overrule the exception. Plainly, the hearing judge did not err in any way in finding that

Cassilly “did not provide a copy of the 2014 [DOJ] letters to [] Huffington or his counsel.”

This is accurate. The record demonstrates that the DOJ—not Cassilly—provided the 2014

DOJ letters to Huffington’s counsel. The real substance of Cassilly’s argument seems to

be an exception to the hearing judge’s finding that he had a duty to disclose the 2014 DOJ

letters and that the failure to do so constituted a discovery violation.

The hearing judge concluded that Cassilly violated Maryland Rule 4-263(d)(8) by

failing to disclose the 2014 DOJ letters because the letters contained the conclusions of an

expert witness in regard to Huffington’

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