Leora N. Rosen, Ph.D.
11309 Commonwealth, T-3
North Bethesda, MD 20852
October 5, 2010

 

Gail D. Kessler, Assistant Bar Counsel
Attorney Grievance Commission of Maryland
100 Community Place, Suite 3301
Crownsville, Maryland  21032-2027

 

    Re:     BC Docket No. 2011-064-13-9 (Smith)
        and BC Docket No. 2011-063-13-9 (Cassilly)

 

Dear Ms. Kessler,

 

Thank you for your letter of September 28, 2010 enclosing the letter of Messrs. Cassilly and Smith dated September 22, 2010.  I will arrange my responses to this letter sentence by sentence, first quoting Messrs. Cassilly and Smith in italics and then responding to their assertions.

 

Pursuant to your letter, dated September 16, 2010, the following is the combined response to the complaint filed by Dr. Lenora [sic] Rosen (hereinafter “Rosen”).

 

No comment.

 

Review of her letter to Bar Counsel identifies what appear to be allegations con-cerning Rule 3.6 of the Maryland Lawyer’s Rules of Professional Conduct and such will be addressed forthwith.

 

No comment.

 

The remaining comments that Rosen makes reference the possible misconduct of another attorney (See email from Roger Malik, Esquire to Lenora [sic] Rosen, dated July 25, 2009) or focuses upon issues entirely outside the scope of this complaint’s investigation.

 

Roger Malik’s e-mail is irrelevant both to the initial investigation of a Rule 3.6 violation and to my letter, which simply enlarged on the information I was providing about the prosecutors’ misconduct in this case.  It was meant to demonstrate that the prosecutors named in the above-cited investigations had decided that they were going to “get” defendant Carlton by any means neces-sary.  One of the means they used (extrajudicial statements to the press in violation of the ethical rules) had already been described by me at length in my initial complaint.  To show Bar Counsel how far Mr. Cassilly and Mr. Smith stepped outside the bounds of permissible prosecutorial advocacy, I then provided additional information about their use of illegally created “evidence” to prejudice a defendant’s case and to deny her rights.

 

Mr. Malik might have been speculating about how the illegally taped conversa-tions arose, or which other lawyers were involved.  But that is irrelevant.  I grieved only Mr. Cassilly and Mr. Smith to this Board, and I grieved them for what THEY did and for THEIR misconduct.  They both know very well that it is illegal to tape a telephone conversation with a Maryland resident without that person’s knowledge and permission.  The both knew, therefore, that the tapes purportedly made by complaining witness Yaakov Gendelman were made illegally, regardless of who solicited them, who might have advised Gendelman, or who took part in any way.  Simply put, these two prosecutors knew that the tapes could not legally be used, and yet they used them.  They based indictments upon them and, citing them, sought and got an enormous bail (at first, no bail at all!) in violation of the Eighth Amendment.  They spoke about information allegedly found in those tapes, both to the press and to the defendant’s own counsel, attempting to prejudice her ability to defend herself.  Additionally, Mr. Cassilly was responsible for using up large amounts of taxpayers’ money to have hours and hours and hours of these taped conversations transcribed for some purpose.  All this took place in spite of their clear knowledge that the law did not give them the right to have, use, or condone the making of these tapes.

 

If this conduct is outside the scope of the investigation, I would ask that either the scope of the investigation be enlarged or that this information be regarded in light of understanding the motivation of these prosecutors to go to any length -- illegal, immoral, unjustified, unethical, or otherwise -- to either get a conviction of Valerie Carlton, or to force her into a plea that would result in her lengthy incarceration.

 

Rosen first questions statements made in an online article from ABC 2 news, published on June 4, 2009.  

 

In fact, I alleged that the statements violated Rule 3.6.

 

The defendant, Valerie Carlton (hereinafter “Carlton”) had been indicted on June 2, 2009 for acts involving sexual child abuse.

 

True.

 

Cases involving child abuse are considered to be ongoing investigations; even when charges have been brought, as there exist the possibility of other child victim’s witnesses in the community.

 

This does not relieve the prosecutors of their responsibilities under law or their requirements under the Rules of Professional Conduct for Attorneys.

 

Dissemination of such information serves a legitimate law enforcement purpose and does not create a substantial likelihood of heightening public condemnation of the accused.  Rule 3.8(e).  

 

Here, the prosecutors make a giant leap.  I never said that they were not permitted by law or by the ethics code from disseminating information.  I never said they should not serve legitimate law enforcement purposes.  In fact, had they disseminated information appropriately and stayed within the bounds the law had laid down for them, they could have served a legitimate law enforcement purpose.  What they did, however, was to go beyond what they were permitted to do, and to thus destroy a legitimate law enforcement purpose.  The protection of any defendant’s right to a fair trial is a legitimate law enforcement purpose set down in the U.S. Constitution, the Bill of Rights, the Maryland Constitution, and in the Maryland Code.  

 

The prosecutors cite Rule 3.8(e) as if that exonerates them, but it does not, not at all.  That section says that the prosecutor may only give the information necessary to inform the public of the extent and nature of the prosecutor’s action.  Naturally, the extent and nature of the prosecutor’s action is contained in the indictment and no extra-judicial statements not contained therein (especially of an incendiary or scandalous nature) serve any legitimate law-enforcement purpose.

 

Moreover, when speaking of a child-victim, the use of the generic term ‘they’ avoids reference to a specific gender, thus affording some protection against identification of the child-victim.  

 

This is both non-responsive and frankly absurd.  First of all, this statement was made by Mr. Cassilly on June 4, 2009, six days after an article appeared on May 29, 2009 in “The Aegis,” starting with the sentence:  “A Joppa woman is being held in jail without bail on charges she sexually abused two young girls over an extended period.”  So how could Mr. Cassilly hope to disguise the gender of the “two young girls” by calling them “they” in a subsequent article?  Furthermore, the word “they” is no more gender-neutral than “the child”; the difference between “they” and “the child” is one of number, not gender.  

 

The offending comment was: “They were touching themselves in a very inappro-priate manner and no matter how often the teacher would indicate to them that that wasn’t appropriate and they shouldn’t do that, they went back to that beha-vior,” [ABC-2-News.com, June 4, 2009].  That comment does not protect a child from the “identification” of her gender; it clearly indicates that two children were masturbating together, while their teacher tried unsuccessfully to stop them.  It brings up a very disturbing picture, almost like a description of classroom kiddie porn.  Furthermore, there was no need to describe the masturbating child as plural to protect her identity.  The prior “Aegis” article had quoted Mr. Bruce Smith as saying that one of “the girls” was masturbating “chronically.”  Smith was quoted as saying, “That means nonstop.”  That AEGIS article also repeatedly mentioned the “two girls” or referred to “one of the two girls.”  Mr. Cassilly did not refer to the child-victims by the use of the pronoun “they” to protect their identity; he did it to increase the horror in the general public at what had been done to two little girls.

 

Rosen then raises question about an online article by WJZTV, also dated June 4, 2009.

 

Agreed.

 

The comment concerning how much the children remember and the issues one child was having as a result of what had transpired are statements concerning the well-being of the children in an ongoing investigation and not directed at, nor comment upon, the defendant.

 

This is disingenuous.  In the WJZTV article that day, it is reported that “one of the young girls” behaved strangely in the classroom.  Again, the information is provided that there are two girls, and one of them is being described.  Mr. Cassilly was then quoted as saying:  “It’s difficult to say with a child, how much they remember, how much they associate but we are aware that at least one of the victims was having issues with respect to dealing with this.”  Mr. Cassilly is an attorney, not a clinical social worker or child psychologist.  He described the child as “one of the victims” – not one of the “alleged victims.”  He was not reporting on her well-being but on her victimization.  Since he had charged a defendant with felonies for victimizing this child, it is obvious to any reader that Mr. Cassilly was saying that the defendant committed a crime against this child and that the child had “issues dealing with” the crime committed.  Again, he omits any words such as “allegedly” or “alleged” and presents foregone conclusions that (a) the defendant molested the child; and (b) the child had issues dealing with having been molested by the defendant.  Any other interpretation of this sentence would be like questioning what the meaning of “is” was.

 

Accordingly, this statement does not have a substantial likelihood of materially prejudicing and adjudicative proceeding in the matter.  Rule 3.6(a).

 

First of all, this presumes that the general reading public, who will make up the jury pool, will read this passage and will say to themselves, “Oh well, this is not about the guilt or presumed innocence of a defendant, but only about the well-being of a child.”  I hardly think Mr. Cassilly has studies that would support the idea that the general readership of the news would adopt this interpretation.

 

Secondly, here Mr. Cassilly assumes the role of the judge of what effect, if any, this statement (which he does not deny making) would have had, and whether it was substantially or materially “likely” to have a prejudicial effect.  It is not up to him, however, to judge this.  It is not contemplated that a prosecutor can make extrajudicial statements and then simply determine that they were immaterial or harmless.  Obviously, to do so would be to let each prosecutor conduct himself as he saw fit, regardless of Rule 3.6, and then appoint himself to be the judge of his own case, which in turn would nullify the effect of the Rules of Professional Conduct.  A prosecutor could issue whatever extra-judicial comments he wished, and then merely determine that they had been harmless.  It would be a fool-proof system for prosecutors, actually.  If the defendant was convicted, the prosecutor could show that his statements did no material harm, since she was guilty anyway.  And if the defendant was acquitted, the prosecutor could show that the statements were harmless since they didn’t work.  

 

It would completely eviscerate the law to allow any lawyer to opine on the ultimate outcome of his unethical conduct.  Furthermore, I did not complain against Messrs. Cassilly and Smith because of the outcome of their statements, but because of the ethical violations involved in their making those statements.  

 

Rule 3.6(a) clearly states that a lawyer must not make an extrajudicial statement that he “knows or should know” will have the effect of materially prejudicing adjudication.  For Mr. Cassilly (who has been a prosecutor for many years) and Mr. Smith (who has, upon information and belief, been both a prosecutor and a public defender) to pretend not to know that these statements fell into that description is, I submit, very difficult to believe.

 

Finally, Rosen raises question to an article published by The Aegis on June 12, 2009.

 

Agreed.

 

The interview’s scope was limited to the death of Carlton’s infant son who was out-of-state at the time.

 

This statement is questionable, since the article proceeds to link up the felony charges against Carlton and the death of her son.  The eighth paragraph says, “Carlton did allegedly threaten to use her son as leverage in the abuse case, however.”

 

The article ends with the offending comment given by Mr. Bruce Smith:  “She basically said [not “allegedly said,” but “said”] to a witness you help me kidnap [one of the female victims] or the other one [the boy] goes,” Smith said.  If there were no link between the charges against Carlton and the death of her son, (as Smith apparently stated two paragraphs earlier), it would seem peculiar that he linked them in this simple declaratory sentence.  This comment given to the press by Bruce Smith was obviously made in violation of Rule 3.6.

 

The statement provided to the reporter specifically identified that Carlton had no connection to the death of her infant son and that the investigation that was being handled by the Delaware State Police.  

 

This, in and of itself, is quite true.

 

At that, the interview ended.

 

This, upon information and belief, appears not to be true.  Mr. Smith is quoted at the very end of the article, giving a statement that appears to be part of the interview, and using a style of expression seemingly designed for this specific story.   The statement, furthermore, did not refer to “allegations” but to acts.  In addition, although Mr. Smith may have used the words “no link whatsoever” in telling the journalist that the baby’s death was not connected to the criminal charges against the mother, he very clearly linked them by his quotation.  This link could not have been established at a bond hearing that preceded the death of the infant.  And there is independent evidence that the prosecutor’s office was attempting to link the death with other criminal charges against the mother at the time.•

 

This statement does not have a substantial likelihood of materially prejudicing and adjudicative proceeding in the matter.  Rule 3.6(a).  

 

I strongly disagree with this assertion.  The statement made by Mr. Smith says that Carlton told a witness to help her commit a crime or the “boy” would “go.”  The suggestion is that she threatened to harm the baby unless she got cooperation in committing a crime.  The words “alleged” or “allegedly” were not even used.  The image presented is that of a vicious, cold-blooded, murderous mother who threatened harm to an infant to gain compliance in criminal conduct.  It’s almost like a comic book presentation of the evil villain.  To suggest that this is not substantially or materially prejudicial defies belief.

 

Rule 3.6(a), again, says that a prosecutor must not make an extrajudicial statement that he should know will prejudice a judicial proceeding.  I frankly cannot understand how that Rule exonerates Mr. Smith in any way.  

 

The article also sets out that in addition to other charges, Carlton had been charged with two counts of attempted child abduction.

 

Indeed, these are the two charges that arose from the laborious transcription of the illegally-taped telephone conversations that Mr. Cassilly and Mr. Smith knew could not legally be used as evidence.  But still, the crimes the non-evidence would support were charged, and they were in the charging documents, so a press report of the charges was acceptable and ethical.  It does seem, though, that saying the interview was limited to the news of the death of the baby is at best a misstatement.

 

The reference to use of the now deceased infant as part of child abduction charges arose from information provided to the court at Carlton’s bond hearing.  

 

Now there is the vague suggestion that the extrajudicial statement made on June 12, 2009 was not really extrajudicial because it arose from a previous bond reduction hearing relating to charges of kidnapping and sexual abuse.  Mr. Smith’s extrajudicial statement might have “arisen” from “information provided” to the court at a bond hearing, if that “information provided” was that Carlton had said things in taped telephone conversations, of course.  But to say: “She basically said to a witness you help me kidnap [one of the female victims] or the other one [the boy] goes,” was made to the press, not to a judge. It was made to a reporter by Mr. Smith on June 12, 2009.  It violated Rule 3.6.

 

“Likewise, the article’s identification that Carlton had two children bathe toge-ther, along with information concerning passports all arose from information provided to the court at the time of the initial bond hearing.”

 

Certainly, this information could have “arisen” from “information provided to the court” in the initial bond hearing; in fact all information, whether true or false, whether given as “alleged” or stated as if it were incontrovertible fact, had to “arise” from “information provided to the court” at bond hearings or otherwise, because the fact that the defendant was charged with 28 felonies was provided to the court at those hearings.  However, the prosecutors notably fail to provide Bar Counsel with recordings or transcripts of the bond hearings they vaguely refer to, where things “arose” and where “information was provided to the court.”  It is illogical to assume that the statement quoted from Mr. Smith at the end of the June 12, 2009 article was not a direct quote from him to the journalist; in fact, it is quoted as such in the article itself.  

 

“It is common for the media to recycle statements obtained from public records or from court hearings at a later date to bring continuity to a story.”

 

The context in which Mr. Smith was quoted indicates that the journalist was obviously working from the live interview with Mr. Bruce Smith.  The story ends with a pithy, exciting statement from him, that sounds more like a media sound-byte designed specifically for this story, rather than a serious description of evidence likely to have been presented in court ten days earlier.  I believe it is obvious that, had he made it in a bond hearing and then had it been, as he says, “recycled,” he would have provided a transcript to the Bar Counsel.

 

“It appears that such is what occurred here.”

 

It would appear more likely if there had been a transcript attached to the letter, and that sentence were to be found in that transcript.  I think it can be assumed that what has happened is that Messrs. Cassilly and Smith have not been able to find good defenses or good explanations for their conduct, and so they have made vague, general statements attempting to show that there were reasons for their extrajudicial statements, that they weren’t prejudicial, that there was no harm done, that the statements could have been other than what they were, etc.  My take on this is that it is essentially without merit.  

 

General Observations about the Responsive Letter

 

    1.  Cassilly and Smith do not deny making the offending extrajudicial statements that violated Rule 3.6.  They made those statements.

 

    2.  Cassilly and Smith suggest that their extrajudicial statements were made for reasons other than to prejudice defendant’s chances at a fair trial, and therefore, they did not prejudice her chances at a fair trial, and were thus essentially equivalent to “harmless error.”  I believe this displays a kind of arrogance on their part; since they do not deny making the offending statements, they assert their opinion that their conduct was not improper – or that it did not matter.  

 

    3.  Cassilly and Smith also vaguely suggest that the third of the three statements “arose from” information “provided to the court” at hearings.  They do not even attempt to prove that they had made these statements in any court proceedings; surely they could have provided either voice recordings or transcripts if the suggestions were true.  I believe that this is simply an excuse, and that the statements were made to the press and that they violated Rule 3.6.

 

    4. Although Cassilly and Smith do not respond at all to the charge that they knowingly and wrongfully used illegally taped telephone conversations in the prosecution (certainly, in the charging and bail-setting!), they are utterly refractory to that charge and do not respond at all.

 

    5.  Although I initially only included the extrajudicial statements made by these two prosecutors, I now wish to inform Bar Counsel that I have the following additional information to submit, and hereby formally ask for an opportunity to present evidence of more and possibly more egregious prosecutorial misconduct and unethical attorney behavior on their part, specifically:

 

        a.  Mr. Cassilly tried to prevent Carlton’s private lawyer, Isaac Klein, Esq., from bringing in a defense expert to meet with her in HCDC in March 2010, and he managed to impede that visit on the grounds that the defense expert was going in to see her not as a treating physician but to help her with her case. He also instructed the Warden to obstruct the visit and he caused the HCDC personnel to say that the visit was not allowed without a court order, which was untrue.  Three professionals had to get involved in an exhaustive series of complaints, inquiries, phone calls and official involvement before Dr. Mills was able to meet with the defendant.  Mr. Cassilly’s obvious goal was to impede the preparation of Carlton’s defense.

 

        b.  That Mr. Smith worked in concert with personnel from the CAC in order to hide significant exculpatory evidence that resulted from the community response to early press reports about the defendant’s alleged pedophilic acts.  In fact, the exculpatory evidence that appeared and that was hidden would have exonerated the defendant a few weeks after she was arrested, if it had been revealed.

 

    I expect that I will be able to assemble the additional materials for your office within approximately two weeks.  

    Thank you for your attention to this important matter.

 

                    Sincerely,

 

                    Leora N. Rosen, Ph.D.

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