Ware v. State & Misleading Disclosures as Brady Violations in Maryland

Yesterday, Adnan’s attorney filed his reply brief. That brief was accompanied by some very interesting exhibits. You can hear my thoughts about the reply brief when this week’s Addendum episode of the Undisclosed Podcast premieres tonight at around 6:00 P.M. In this post, I will address something that we didn’t discuss on the episode.

In the episode, we do talk about the opinion of the Court of Appeals of Maryland in Ware v. State, 702 A.2d 699 (Md. 1997). It’s a case with more than a few similarities to Adnan’s case. In particular, the key witness for the prosecution — Edward Anderson — testified pursuant to a plea deal, with a motion to modify his sentence held sub curia, pending his testimony at the defendant’s trial. 

In response to a request by the defense, the prosecution turned over many (but not all) details about the plea deal, but it did so in a circuitous and misleading manner. As a result, the trial court found that there was no Brady violation, concluding

that the “central essence” of the non-disclosed agreement “would have been fully before the jury” through the available information that defense counsel did not present; and that “chipping further away at the edges of Edward Anderson’s testimony by use of the suppressed agreement would likely only have opened the door for an impressive rehabilitation of his testimony.”

In other words, the defense claimed in part that it didn’t present all of the available information it had about the plea deal because the prosecution’s disclosure was misleading. The trial court responded that a misleading disclosure did not rise to the level of a Brady violation.

The Court of Appeals of Maryland agreed with the defendant. According to the court,

“When the prosecutor receives a specific and relevant request,” the Supreme Court noted in Agurs…, “the failure to make any response is seldom, if ever, excusable.” If the failure to make any response is rarely excusable, then certainly a misleading response is seldom, if ever, excusable as well. Ware made more than one specific request for disclosure of any agreements or understanding between the State and Anderson. Although under Bagley we no longer distinguish for purposes of determining the standard of materiality among cases in which the defense made a specific request as opposed to a general request or no request at all, the fact that the defendant made a specific request figures into the analysis nevertheless.* (emphasis added).

In other words, according to Maryland’s highest court, “a misleading response is seldom, if ever, excusable” under Brady. This is important because, at a minimum, the State’s disclosures in Adnan’s case regarding the cell tower information, both to the defense and its own expert, were misleading. Pursuant to Ware, that means that the court should find a Brady violation.

In today’s episode, we will talk about a different aspect of Ware, and, hopefully, in a future episode, we will talk about yet another aspect of Ware.

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*Of course, Gutierrez made several specific requests for the cell tower evidence in Adnan’s case.

-CM