Prosecutors who cheat are in less danger than a white male homicide suspect in a foot chase with the police. That being said, prosecutor Joseph Cassilly is in trouble. Prosecutors can slide on a lot but telling lies to the Court is a direct ticket to Troubletown.
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Murder Charges Filed by Prosecutor Joseph Cassilly Against John Huffington.
The whole story revolves around the prosecution of Mr. John Huffington. He was charged with murder in the early 80s. He was convicted and sentenced to death. For other reasons, that death sentence was vacated but he was still sitting on a life sentence. Mr. Huffington appealed, filed post-conviction petitions, and did everything he could to get a new trial but by the 90s his options had run out.
See, prosecutor Joseph Cassilly was the elected State’s Attorney from 1982-2019. His office tried the case. The case was extraordinarily high-profile and to such a degree that a change of venue was granted. At Mr. Huffington’s trial there was a damaging piece of expert witness testimony. FBI agent Michael P. Malone testified at trial that hair was found in the victim’s trailer and the hair sample “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.” (Petition, pg. 3).
Exculpatory Evidence Comes to Light: The State’s Hair Expert has Serious Credibility Issues.
After all of Mr. Huffington’s options had run out something had begun to brew at the Department of Justice. In April of 1997 the DOJ issued a report titled ” The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases.” As a part of that report there was an explosive memo regarding flagrant misdeeds by Agent Malone. William A. Tobin, an FBI examiner, reviewed Malone’s testimony from a 1985 hearing in a different case. Tobin opined the following about testimony from that hearing:
- Agent Malone “testified inaccurately and outside his expertise.”
- Agent Malone’s testimony contained “false statements,” “contrived and fabricated responses.”
- Agent Malone “presented apparently and potentially exculpatory information as incriminating.”
As you can imagine Huffington’s attorney, after hearing about this, started getting back to work by filling Freedom of Information Act requests and doing further investigation into Agent Malone’s conduct. Defense counsel did not get very far. In 1999 a break occurs. Unfortunately, defense counsel would not find out about it until years later.
In 1999, the Justice Department hires Steve Robertson, a hair and fiber expert, to review Agent Malone’s work in multiple other cases, including Mr. Huffington’s case. Robertson issued an extraordinarily damaging report:
he was unable to conclude that Agent Malone performed his testing in a scientifically acceptable manner and concluded that the results of Agent Malone’s examination were not adequately documented in his bench notes, that Agent Malone’s testimony was consistent with the laboratory reports but not his bench notes, and that Agent Malone’s testimony was within the bounds of his expertise.Petition against Cassillly p. 5-6.
The Hiding by Prosecutor Joseph Cassilly.
This report was provided to Cassilly. Cassilly did not give it to defense counsel. A report like this destroys the credibility of the expert testimony. This, along with the previous report by Tobin about Malone’s work on other cases, could have seriously turned the tide at Mr. Huffington’s trial.
What happens next is an inexcusable abdication of Cassilly’s moral and ethical duty as a prosecutor. According to the petition against him, Cassilly kept the Robertson report for a few years then disposed of it. Never gave it to the other side. The power of a prosecutor is equal to that of a god. They are more powerful than judges because they can short circuit any shot of a fair trial or hearing before one event starts.
The Lying by Prosecutor Joseph Cassilly.
Followup litigation by Huffington happened over the years. He filed a Petition for DNA Testing and then a Petition for Writ of Actual Innocence. During the litigation of the actual innocence petition Cassilly filed a response with this outrageous assertion included:
No evidence has been presented that the conclusion that examiner Malone rendered inPetition, p. 7.
court is not correct.
Bar Counsel asserts that this statement was knowingly and intentionally false. It appears from Cassilly’s own words that this is in fact the case. Cassilly then again, at a hearing on the motion, makes the same knowing and intentionally false statement:
[A]lthough Malone subsequently was found to have perjured himself, there’s no, there’s no evidence today that anything he said in this trial or that subsequent comparison of the hairs that he made in this trial have been shown to be incorrect.Petition, p. 8.
So How did Defense Counsel Finally Find Out?
So how do you think Mr. Huffington’s attorney finally got a copy of the Robertson report? A reporter from the Washington Post gave it to him in 2011! Had it not been for this journalist, who knows what would have happened. By 2014, the feds threw Agent Malone under the bus even further. In a correspondence from Norman Wong, Special Counsel to the Justice Department, Wong identifies numerous errors:
We have determined that the microscopic hair comparison analysis testimony or laboratory report presented in this casePetition p. 9.
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 science; (2) the examiner assigned to the positive association a statistical weight or probability or
provided a likelihood or rareness of 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 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 science.
After some more maneuvering Mr. Huffington’s conviction was vacated. As many do who are tired of living their life in prison he agreed a no-contest Alford plea to time-served with meant he would be released immediately. The petition against Cassilly includes even more allegations of lying to the Court. You can read it all below yourself.
The Importance of Pursuing Ethical Violations Committed by Prosecutors.
It is very rare for prosecutors to be charged with ethical violations. Considering the volume of cases that prosecutors handle it is clear that ethical violations are are not pursued against prosecutors to any meaningful degree. There are far more defense attorneys who are given ethical violations for missing appeal filing deadlines than prosecutors are for failing to disclose evidence or worse. These actions by Joseph Cassilly robbed Mr. Huffington of years of his life.
The problem is things like this don’t just go away. These brazen behaviors are passed on through office culture. In fact last year, after decades as the elected prosecutor, Cassilly supported the campaign of his longtime staff prosecutor, Albert Peisinger. After winning Peisinger was quoted in the Baltimore Sun as saying that Cassilly’s “example should be followed, not the exception to the rule.” I don’t know Peisinger. This article is not about him. But, how do we know that these bad habits were not passed onto future prosecutors? These cultures have to change and unfortunately the only thing that will do it are petitions like the one filed against Cassilly.
*UPDATE* The Maryland Court of Appeals recently heard oral argument on this case. You can watch that argument here:
This post was written by Justin Eisele.