Due process lies at the heart of American jurisprudence. Sixty years ago, in the seminal case of Brady v. Maryland, 373 U.S. 83 (1963), the U.S. Supreme Court held that a prosecutor’s suppression of material evidence favorable to an accused upon request violates due process.
According to the Brady court, the due process violation stems from the failure to disclose, not the reasons for the failure. In practice, however, the reasons behind a Brady violation are important and raise significant ethical issues.
The Supreme Court of Maryland has expressed a strong policy in favor of Brady disclosures. In addition to adopting Maryland Rule 4-263 requiring the disclosure of exculpatory evidence without a request, the court promulgated Maryland Rule 19-303.8(d) which obligates prosecutors 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…”
Other provisions of Rule 19-303.8 go further, requiring prosecutors to disclose later discovered evidence or even seek to remedy a conviction wrongfully obtained when the evidence shows there is a likelihood the defendant was not guilty. See Md. Rule 19-303.8(f) and (g).
Despite expressing a strong policy in favor of disclosing exculpatory evidence, Maryland prosecutors are rarely sanctioned for violations of Rule 19-303.8. In fact, there is only one published opinion where a Maryland prosecutor was disbarred or suspended for a Brady violation: Atty. Griev. Comm’n of Md. v. Cassilly, 476 Md. 309 (2021).
Cassilly, the elected state’s attorney for Harford County, knowingly and intentionally failed to disclose exculpatory evidence for more than a decade. This included an FBI report that the trial court considered exculpatory. Cassilly compounded his violation by discarding the report and making false statements to both the court and defense counsel.
He was found to have violated Rule 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).
In disbarring Cassilly, the Maryland Supreme Court focused on his role as the elected state’s attorney and the high standards to which prosecutors must be held. The court determined disbarment was the only sanction that recognized the seriousness of the misconduct, protected the public and served the goal of “ensuring the public’s confidence in the legal profession.” Id. at 331.
The Cassilly opinion is a worthwhile read. The court details the intent and history of Rule 19-303.8, focusing on how the rule is designed to protect the public.
One open issue was highlighted by Judge Robert N. McDonald in his concurring opinion. McDonald agreed with the sanction of disbarment but wrote separately because the majority skipped what he believed was an important question: Are the prosecutor’s legal obligations under Rule 4-263(d)(5) the same as those under Rule 19-303.8(d)?
It stands to reason that the next disciplinary case involving a prosecutor’s failure to disclose will address the interplay between Rule 4-263 and Rule 19-303.8.
There is also the question of the remedy available when the prosecution fails to disclose all exculpatory evidence. For example, last year, in Smith v. State, 255 Md.App. 544 (2022) cert granted (Jan. 20, 2023) the Maryland Attorney General’s office conceded a willful Brady violation because the prosecutor failed to disclose that a palm print found in the victim’s house that did not match the defendant’s print.
Despite the violation, the charges were not dismissed. Instead, the Appellate Court of Maryland granted a new trial. The ACM reasoned dismissal based on Brady violations remains a rare sanction only appropriate when irreparable prejudice precludes less drastic alternatives.
In January, the Supreme Court of Maryland granted certiorari. The Supreme Court will review the standard to be applied for determining the remedy when there has been an intentional, willful, or reckless Brady violation. The Supreme Court will also rule on the appropriate remedy for Smith.
Going forward, failures to disclose exculpatory material should continue to make headlines because these cases highlight the major policy concerns of confidence in public officials and social justice. I anticipate that future Brady violations will lead to disciplinary charges in Maryland. And, from my perspective, I think the Supreme Court will want to speak on these issues.
Craig Brodsky is a partner with Goodell, DeVries, Leech & Dann LLP in Baltimore. For over 25 years, he has represented attorneys in disciplinary cases and legal malpractice cases, and he has served as ethics counsel to numerous clients. His column in The Daily Record appears on the first Thursday of every month. He can be reached at firstname.lastname@example.org.
This article originally appeared in The Daily Record on March 2, 2023.
Goodell DeVries defends various professionals in Maryland, the District of Columbia, and Virginia, including lawyers and law firms. Many of these cases are ethics matters involving Bar Counsel. If you have questions about the above or are a Maryland lawyer facing discipline, please contact us at EthicsHelp@gdldlaw.com.