State v. Williams
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State v. To ny Williams, N o. 97, Septe mber Te rm, 2003 . Opinion b y Bell. CRIMINAL LAW - DUTY TO DISCLOSE EXCULPATORY EVIDENCE Maryland Rule 4-263 (g) extends not only to exculpatory or mitigating information pertaining to State s witnesses known by the Assistant State s Attorney actually prosecuting a specific criminal case and the related officers participating in that prosecution, but also to such inform ation kn own to the othe r Assista nt State s Attorn eys in the s ame o ffice. Brady v. Maryland has the same reach. IN THE COURT OF APPEALS OF MARYLAND No. 97 September Term, 2003 ______________________________________ STATE OF MARYLAND v. TONY WILLIAMS ______________________________________ Bell, C.J. Raker Wilner Cathell Harrell Greene Eldridge, John C. (Retired, specially assigned), JJ. Opinion by Bell, C.J. ______________________________________ Filed: April 14, 2006 In this case, we are asked whether Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), and its application pursuant to M aryland Rule 4-263 (g), 1 extend not only to exculpatory or mitigating information pertaining to State s witnesses known by the Assistant State s Attorney prosecuting a specific criminal case and the related officers participating in that prosecution, but also to such information known to the other Assistant State s Attorn eys in the s ame o ffice. We shall hold tha t Rule 4-26 3 (g) require s that result. Furthermore, as did the Court of Specia l Appe als, Williams v. State, 152 Md. App. 200, 831 A.2d 501 (2005), we believe that, under the circum stances of this c ase, Brady does indeed extend beyond the individual pro secutor, encompassing exculpatory or mitigating information known to any prosecutor in the office. The United States Supreme Court, in Brady, held that the Due Process Clause of the United States Constitution imposes upon the State a duty and obligation to disclose evidence favorable to an accused upon request ... where th e evidenc e is material eith er to guilt or to punishm ent, irrespective of the good faith or bad faith of the prosecution. 373 U.S. at 87, 83 S. Ct. at 1 197, 10 L. Ed. 2 d at 218 . See also Pennsylvan ia v. Ritchie, 480 U.S. 39, 57, 107 S. Ct. 989, 1001, 94 L. Ed. 2d 40, 57 (1987). The evidence to which the Court referred was both exculp atory evid ence a nd imp eachm ent evid ence. Giglio v. United States, 405 U.S. 1 Maryland Rule 4-263(g) provides: (g) Obligations of State's Attorney. The obligations of the State's Attorney under this Rule extend to material and information in the possession or control of the State's Attorney and staff members and any others who have participated in the investigation or evaluatio n of the ac tion and w ho either reg ularly report, or w ith refe renc e to th e par ticul ar ac tion have rep orted, to t he offic e of t he State's Attorn ey. 150, 154, 92 S. Ct. 76 3, 766, 3 1 L. Ed . 2d. 104 , 109 (1 972). See also United States v. Bagley, 473 U.S. 667, 676, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 490 (1985). The duty to disclose such evidence also applies whether or not there has been a request for such evidence by the acc used. United States v. Agurs, 427 U.S. 97, 107, 96 S. Ct. 2392, 2399, 49 L. Ed. 2 d 342, 3 51 (19 76). The State in the case sub judice essentially presen ts three arguments, each of which, it maintains, requires reversal of the judgment of the Court of Special Appeals. First, it claims that t he net cast by Brady does not, in fact, reach evidence beyond the personal knowledge of the indiv idual prose cutor in a case, without regard to the ease with which the prosecutor may have been able, with due diligence, to obtain such evidence from other sources. Second, it claims that, even if Brady applies to su ch eviden ce, the State s f ailure to disclose it is excused, or negated, by the defendant s ongoing discovery duty. Third, the State argues that the evidence that was not disclosed in this case was not material, and, therefore, was unlikely to have affected the decision rendered at the trial level; that, in other words, it was harmless error. With all these points, we disagree. A. Having mandated in Brady, that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt o r to pun ishmen t, irrespective of the good faith or bad faith of the 2 prosec ution, 373 U.S. at 87, 83 S. Ct. at 1197, 10 L. Ed. 2d. at 218, the Supreme Court has outlined the three elements of a Brady violatio n. Strickler v. Greene, 527 U.S. 263, 281-282, 119 S. Ct. 1936, 1948, 144 L. Ed. 2d 286, 302 (1999). The Court has explained: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadverte ntly; and prejud ice must ha ve ensue d. 527 U .S. at 281-28 2, 119 S. C t. at 1948, 119 L. Ed. 2d at 302. With this in mind, we turn to the facts of this case. The responde nt, Tony Williams, was charged w ith, and convicted in the C ircuit Court for Baltimore City of, the murder of Dana Rochelle Drake, who was fatally shot outside her apartment in northeast Baltimore, and related offenses. Central to the State s case against the respondent was the testimony of Sean Williams ( S. Williams ), a jailhouse snitch. S. Williams, who had occupied a cell adjacent to the one occupied by the respondent when the respondent was being held on the murder charge at the Baltimore City jail, testified that the respondent admitted committing the murder. According to S. Williams, at that time, the respondent also admitted purchasing the murder weapon. The motive for the crime was, he said, the respondent s desire to collect the proceeds of the life insurance policy he had taken out on Ms. Drak e s life. S. Williams testified that he reported this information to homicide detectives, including an Officer Massey, who recorded his statement. He stated that he was promised nothing in exchange for the information and, furthermore, had not asked for anything . Thus, S. Willia ms ma intained that he w as gettin g noth ing o ut of this thing, 3 and that no one in the State s Attorney s Office promised him anything or initiated contact with him abou t the case. In sh ort, accordin g to S. Williams, his testimony was being given out of the goodness of his heart and because he did not like guns and violence. The respondent s convictions were reversed by the Court of Spe cial Ap peals. Williams v . State, 152 Md. A pp. 200, 831 A .2d 501 (2003). Although unknow n to the prosecuting attorney, S. Williams was, and had been, for at least 10 years, a paid and registered po lice informant for the Baltimore City Police Departm ent, Eastern District Drug Unit, with his own confidential informant number. 2 Moreover, he had cooperated with the State s Attorney s Office in a number of cases, involving narcotics, weapons and hom icide, leading to numerous arrests. That S. Williams was a confidential informant, with an identification number, and was cooperative in narcotics cases, was known to at least one member of the Baltimore City State s Attorney s Office and also, pe rhaps m ore exte nsively, to m embe rs of the Baltim ore City P olice D epartm ent. When the respondent was arrested and charged with the Drake murder, 3 S. Williams 2 The officer who registered S. Williams as a confidential paid informant testified that because the identities of confidential informants were not centrally computerized, S. Williams s s tatus as a po lice inform ant, while k nown to some, w as not kno wn to all police officers in the Eastern District 3 The Court of Special Appeals opinion states that the charges against respondent were lodged in the Spring of 1998. The respondent maintains, on the other hand, that the charges were brought in the latter part of 1997. Since the murder was alleged to have been committed in February, 1998, the respondent was charged in the Spring of 1998 and is alleged to have made the admissions to S. Williams while in the Baltimore City jail on the murde r charge an d S. William s reported th em to Of ficer Ma ssey in Marc h, 1998, it is likely that the respondent s version is more accurate. 4 had been charged w ith theft of bo th a battery and a police cruiser from the Eastern District Police District. Those charges w ere disposed of in co nsideration of S. Williams s cooperation in drug arrests. His handler, the officer who registered him, so testified. That testimony was confirmed by S. Williams s attorney in the theft case and by the prosecutor in that case. In fact, the prosecuto r testified that it was because of S. Williams s cooperation in narcotics cases that he stetted the cruiser theft charge. For the battery theft charge, he was se ntence d to tim e serve d. The case folder in the S. Williams s theft case contained other corroborative evidence. A notice of postponement indicated that the defense wishes to cooperate [with the Baltimore City Police Department] and others on pending cases. In addition, the stet noted that it wa s entere d beca use the State d eclines t o prose cute. Although the prosecu ting attorney in the responde nt s case an d homic ide detective Massey testified that they did not know of S. Williams s informant status and denied giving him anything fo r his testimon y - Massey eve n indicated that S . Williams never asked for anything in exchange for the information he provided - the case file in an earlier case involving S. Williams suggested that S. Williams had a different mind-set, that he wanted, and had actively sought, consideration for his cooperation. S. Williams had earlier been sentenced to twenty-one months and five days for possession of co caine. There were nine letters in the file, each written by S. Williams to the sentencing judge in that case, informing the sentencing judge that he was an informant for the Baltimore City Police Department and 5 touting his coope ration with h is handler, and the prosecutor. In those letters, S. Williams asked for leniency in excha nge for his coope ration. with homicide officers was emphasized. In four of the letters, his cooperation In the letter postmarked August 12, 1998, mentioning Offic er Masse y, he told the judg e, I have b een very help ful to office rs in Homicide since my arrest, I have told them ve ry important things in cases that are to be tryed [sic] soon. In tw o subsequ ent letters, he referenced the respondent s case, a murder case which involved a man who killed his fiancée, to obtain a very lump some [sic] of a life insuran ce, advising the sentencing judge in one of the letters that he was the key witness and informing him in the other that he had just testified. In both letters he mentione d again Off icer M asse y. The sentencing judge responded to S. Williams on two occasions, sending copies to the State s Attorney s Office, rather than to a particular assistant. In one of the responses, the judge told S. Williams to have his attorney contact the detective who registered him and [to] have [his] attorney or the Detective contact this office to inform the Judge of any help you are g iving h im. Having learned of the preceding facts, the respondent filed a post conviction petition, based on newly discovered evidence . The new ly discovered evidence was, he alleged, that the State had failed to disclose impeach ment information reg arding S. Williams, its primary and star witness, including that he was, and had a record of being, a paid informant. The respondent argued tha t without this information, his cross-examination of the jailhouse 6 snitch at trial w as seve rely and p rejudici ally weak ened. As indicated, the prosecuting attorney testified that she had not made any offers of leniencies or provide d any benef it to Sean W illiams in exchange for his testimony in the Tony Williams case. Moreover, she denied speaking with the prosecutor who prosecuted S. Williams and, therefore, was aware neither of the charge s lodged a gainst him n or of their disposition. The post conviction court denied the respondent s petition for post conviction relief. Perceiving the question to be w hether the know ledge possessed by a pro secutor in the General Felony Div ision of the B altimore C ity State s Attorney s Office is imputed to a homicide prosecutor in the same office, but in a different location and a different division, it answere d no, co ncluding th at under Brady and Maryland R ule 4-263 (g), the State s duty did not extend to informa tion held by an other prose cutor within the same prosecuto r s office w ho, at all times, w as wholly unconnected to the case at issue. The court reasoned that, while it se ems fair an d approp riate for the State to be required to disclose to defense counsel all exculpatory informatio n in its hands , including all evidence wh ich goes toward impeachment of a State witness, both in its files and the files of the police and of all other agencies who have reported on the case to the State s Attorney s Office and who have participated in the case as a part of the prosecution case, a rule that would extend the disclosure duty on the prosecution to information possessed by those who neither has ever reported to the prosecution or directly worked on the case would b e too broad. Th[e ] Court 7 d[id] not believe such construction would be appropriate, practical or would enhance the admin istration o f justice . B. At the Court of Special Appeals, the respondent conceded that the particular Assistant State s Attorney in his case had no t been aware of S. William s s status as an informan t. The respondent conten ded, however, that, under Brady, the obligation to disclose information relating to the credibility of a witness extended beyond the knowledge of the particular prosecutor, to all of that prosecutor s colleagues within the same office. Further, the respondent argued that Maryland Rule 4-26 3 (g) applies to all prosecutors in the same office, whether or not assigned to, or working on , the case. Th us, the respo ndent argu ed that, because S. Williams was the State s critical witness, [the State] should at the very least be required to perform due diligence within the same prosecutor s office to verify such cla ims. Williams v. State, 152 Md. App. at 218, 831 A.2d at 511. Finally, the respondent maintained that S. Williams s testimony was material. He noted, in support, the lack of forensic evidence and the circumstantial nature of the rest of the State s case. He believed, and therefore submitted, that there was a rea sonable p robability 4 that the verdict would have been 4 The corre ct standard is reasonab le possibility, a stand ard articulated by this Court in Dorsey v. State to determine whether improperly admitted evidence contributed to a conviction applies. 276 Md. 638, 350 A.2d 665 (1976) (holding that the reviewing court must thus be satisfied that there is no reasonable possibility that evidence complain ed of, wh ether errone ously admitted or exclude d, may have contributed to renditio n of gu ilty verdict) . See also Yorke v . State, 315 Md. 578, 556 A.2d 230 (1989) 8 differe nt if S. W illiams s status as an info rmant h ad bee n disclo sed. The State, not unexpectedly, agreed with the post conviction court s more limited reading of Brady and Maryland Rule 4-263(g). The State further contended that S. Williams s information was not material since his credibility was sufficiently attacked on cross-examination. In deciding this case, the Cou rt of Specia l Appeals first established that, pursuan t to Giglio, when the reliability of a State witness is determinative of the defendant s guilt or innocence, the State s fa ilure to disclose impeach ment evid ence falls w ithin Brady. 405 U.S. at 154, 92 S. Ct. at 766, 31 L. Ed . 2d at 108. It agreed with the respondent that when applied to his case, Giglio, required that [t]he prosecutor s office [be treated as] an entity and as such it is the spoke sman fo r the Gov ernment. A promise m ade by one a ttorney must be attributed, for these purposes, to the Government. Williams, 152 Md. App. at 224, 831 A.2d at 515, quoting Giglio, 405 U.S. at 154, 92 S. Ct. at 766, 31 L. Ed. 2d at 109. The intermediate appellate court also was p ersuaded that, [t]o the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that (in regards to newly discovered evidence, favoring a standard that falls between "probable ," which is le ss deman ding than " beyond a rea sonable d oubt," and "might" which is les s stringent tha n probab le, and estab lishing that the inquiry is whe ther there is a possibility that the verdict of th e trier of fact w ould have been aff ected ) (em phasis added); Bowe rs v. State, 320 Md. 416, 425-427, 578 A.2d 734, 738-739 (1990) (holding that, in defining the reasonable probability language in Strickland with more precision, substantial possibility describes the prejudice standard in Strickland); Gross v. S tate, 371 Md. 334, 347, 809 A.2d 627, 635 (2002) (holding regarding Sixth Amendment prejudice, [i]f there is n o reasona ble possibility that the appellate co urt would have ruled in his favor, there can be no Strickland prejudice ). 9 burden and to insure communication of all relevant information on each case to every lawyer who deals with it. Id. Indeed, it observed: When, as here, there is an obvio us basis to suspect the motive s and cred ibility of a proposed witness for the State, it may be incumbent upon the State s Atto rney, in an office with many Assistant State s Attorneys, to establish a procedure to facilitate compliance with the o bligation under Brady to disclose to defense material that includes information casting a shadow on a government witness s credibility[.] Williams, 152 Md. at 225, 8 31 A.2 d at 515 , citing United States v. Bernal-Obeso, 989 F.2d 331, 334 (9th Cir. 1993). The Court of Special Appeals believed that the State s Attorney s Office had been put on notice that S. Williams was seeking a reward in exchange for his testimony and cooperation in homicid e and narc otics cases. It ad opted the ra tionale enunciated by the Ninth Circuit Court of Appeals in Bernal-Obeso, that a material lie by an informant about his prior record is exculpatory within the meaning of Brady. In Bernal-Obeso, the court explained: By definition, criminal informants are cut from untrustworthy cloth and must be manage d and care fully watched by the govern ment and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom .... By its actions, the government can either contribute to or eliminate the problem. Accordingly we expect prosecutors and inve stigators to take all reasonab le mea sure s to safeg uard the system agai nst tr each ery. This responsib ility inclu des the duty as requ ired by Giglio to turn over to the defense in discov ery all material information casting a shadow on a govern ment w itness s c redibility. 989 F.2d at 333-334. Therefore, to the Court of Special Appeals, although the prosecutor did not know that S. Williams was a paid informant, it was significant that she did know that 10 he was an incarcerated man coming forward out of the goodness of his heart. That knowledge should [have] give[n] even the most unseasoned prosecutor pause as to the informant s true motives. 152 Md. App. at 224, 831 A.2d at 514. Having determined that the State failed to discharge its Brady obligation to disclose information favorable to the respondent, the intermediate appellate court turned to, and addressed, the materiality of the withheld information. It concluded that the taint of the Brady suppressio n matters on this record so undermines our confidence in the murder conviction that a new trial is in order. 152 Md. App. at 227, 831 A .2d at 51 6, citing Conyers v.State, 367 Md. 571, 613, 790 A.2d 1 5, 40 (2 002), cert. denied, 537 U.S. 942, 123 S. Ct. 3375, 87 L. E d. 2d 249 (2002 ). We granted the State s petition for wr it of certi orari, State v. Williams, 378 Md. 617, 837 A.2d 928 (2003), to address this important issue. C. Maryland Rule 4-263 (g) clearly mandates, and requires, that the duty to disclose materials and informatio n applies no t only to those prose cuting or ac tively participating in the case, but also to any and all members of the State s Attorney s Office, attorneys and staff. Rule 4-2 63 (g ) states, in its en tirety: The obligations of the State s Attorney under this Rule extend to material and information in the possession of the State s Attorney and staff mem bers and any others wh o have pa rticipated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have re ported , to the of fice of the State s Attor ney. 11 Md. Rule 4-2 63 (g) (emphasis ad ded). The canons o f rule cons truction and interpretation are well settled a nd frequ ently stated. To interpret rules of procedure, we use the same canons and principles of construction used to interpret statutes. State ex rel. L ennon v . Strazzella, 331 Md. 270, 274, 627 A.2d 1 055, 10 57 (19 93). See Jones v. Hubb ard, 356 Md. 513, 526, 740 A.2d 1004, 1011 (1999) ( the canons of statutory construction AAA are also generally applicable in respect to rule cons truction ); State v. Be ll, 351 Md. 709, 717, 720 A.2d 311, 315 (199 8); State v. Harrell, 348 Md. 69, 79, 702 A.2d 723, 728 (1997) ( In construing a rule, we apply principles of interpretation s imilar to those used to co nstrue a statute ); In re Victor B., 336 Md. 85, 94, 646 A.2d 1012, 1016 (1994) ( We have repeatedly stated that the canons and principles we follow in construing statutes apply equally to an interpretation of o ur rules ); State v. Montgomery, 334 Md. 20, 24, 637 A.2d 1193, 1195 (1994) ( The canons and rules of construction that guide the interpretation of statutes apply equally when interpreting rules of procedure. ). In Strazzella, 331 Md. at 274-75, 627 A.2d at 1057, we articulated: In our effort to discern the meaning of a rule, we look first to the words of the rule. When the words are clear and unambiguous, ordinarily we need not go any further.... Only when th e languag e of the rule is ambiguo us is it necessary that we look elsewhere to ascertain legislative intent.... We are also to give effect to the entire rule, neither adding, nor deleting, w ords in orde r to give it a meaning not otherwise evident by the words actually used.... Finally, we seek to give the rule a reasonable interpretation, not one that is illogical or incom patible w ith com mon se nse.... 12 (citation s omitte d). See Blundon v. Taylor, 364 Md. 1, 7-8, 77 0 A.2d 658,66 1-662 (2001); see also Mayor an d City Coun cil of Baltimore v. Chase, 360 Md. 121, 128, 756 A.2d 987, 991 (2000); Chesapeake and Potomac Tel. Co. of Maryland v. Director of Finance for Mayor and City Council of B altimore, 343 Md. 567 , 578-79, 683 A .2d 512, 517-18 (1 996). Moreover, the rule is read so that "no word, phrase, clause or sentence is rendered surplusage or mea ningles s." Montgomery County v. Buckman, 333 Md. 516, 524, 636 A.2d 448, 452 (199 4); Condo n v. State, 332 M d. 481, 4 91, 632 A.2d 7 53, 755 (1993); Prince Geo rge's Co. v. W hite, 275 Md. 314, 319, 340 A.2d 236, 240 (1975). "Where the words of a statute, c onstrue d acco rding to their com mon a nd eve ryday mea ning, are clear and unambiguous and express a plain meaning," the court will giv e effect to the rule as written. Design Kitchen & Baths v. Lagos, 388 Md. 718, 728, 882 A .2d 817 , 823 (2 005), citing Moore v. Miley, 372 M d. 663, 6 77, 814 A.2d 5 57, 566 (2003 ). Thus , when the statutory language is plain and unambiguous, a court may neither add nor delete lan guage so as to reflect an intent not evidenced in that langua ge, . . . nor may it constr ue the statute with f orced or su btle interpretations that limit or extend its application. Design Kitchen & Baths, 388 Md. at 729, 882 A.2d at 823-824. So read, it is clear from the language used b y the rule that the obligations of the State s Attorney to disclose encompasses three groups: the State s Attorney, his or her staff members, and those who are not either of the forego ing, but who hav e participated, or are participating, in the case itself, by, for example, participating in the investigation or evaluation of the action, regularly reporting to the State s Attorney s Office, or, with respect 13 to the case under review , have reported to the State s A ttorney s Office. T his is made clear by the fact that no distinction is drawn between attorneys and staff working on the subject case and those that are no t, and by the use of the wo rd and to separate the term s State s Atto rney and staff members from each other and from the rem ainder of the sentence. In context, the reference to simply State s A ttorney, rather than to Assistant State s Attorn eys, is to the O ffic e, as a n entity, i.e., to all of the attor neys in tha t office . Similarly, in context, staff members must refer to all support personnel, i.e. secretaries, paralegals and other personne l, in the State s Attorney s Office. The use of and, rather than separating each specific category with a com ma, indicates that the group, on either side of the conjunction, stands alon e and is no t a part of a series connected by a common characteristic. Aside from the punctuation, the words used to introduce the category of persons who are not a part of the State s attorney s office are not consistent with a series of related persons. Any others, followed by the applicable qualifiers, far from denoting a continuing series, introduces additional persons who are covered, but only if they qualify on the bases then subsequently enumerated, which bases need not be the same as qualified the earlier enum erated c ategorie s. The State argues the contrary, that Maryland Rule 4-263 (g) must be construed mo re narrowl y. Focusing on the rule s last phrase, any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported , to the office of the State s Attorney, it submits that these qualifiers apply with equal force to State s Attorney and staf f memb er, that this 14 Court inten ded only those prosecutors and staff members who were, or had been, involved with th e case to fall with in the ru le s pres cription . This narrow reading is not supported by the langu age of the rule. For the S tate s interpretation to be the correct one, or even plausible, at the very least, a comma, rather than the word and would have had to have been inserted betw een t he w ords Sta te s A ttorn ey and staff members. Even then, the word s, any others, w ould have to be explained; those words suggest a separateness. By their use, as we have indicated, there is introduced a new category of affected persons, rather than a con tinuation of a s eries bound to geth er by a common characteristic. In addition, for the State s interpretation to be a proper one, the meaning of th e wo rds, State s A ttorn ey and staff members would have to be expanded by reading them as Assistant State s Attorneys and staff members working on, or that have worked on, the particular action. That requires adding words and, thus, giving the Rule a mean ing not eviden t from th e word s actuall y used. We hold that by referring only to the State s Attorney and staff members, without any restriction, and then including any others, restricted to those with a direct present or past involvement with the particular action, Rule 4-263 (g) draws a distinction between the State s Attorney s Office and those outside that Office who are on th e prose cution te am. The latter category falls within the Brady rule only if those persons have or have had involvement with the action at issue or regular ly reports to the State s Attor ney s Of fice. No such limitation applies to the attorneys and staff in that Office. As to them, the Brady obligation extends to m aterial and inf ormation in their possession. Thus, where, as in the 15 case sub judice, the information regarding S. Williams s status as an informant was known to anoth er attorn ey in the S tate s A ttorney s O ffice, th e Rule comp els its disc losure. D. Brady also mand ates that, under the circumstances of this case, the State s duty and obligation to disclose exculpatory and mitigating material and information extend beyond the individual prosecutor and encompass information known to any prosecutor in the office. Gen erall y, Brady violations cover a variety of prosecutorial transgressions involving the breach of the duty to disclose exculpatory eviden ce. Strickler, 527 U.S . at 280, 119 S. Ct. at 1948, 144 L. E d. 2d at 301. These tran sgressions include both the failure to search for, and the failu re to pro duce, su ch evid ence. In re Sealed Case, 185 F.3d 887, 89 2 (D.C. Cir. 1999) . When the core of the State s argument relies on the testimony of an essential witness, the State has a duty to discover anything, and everything, that con cerns that witness s credibility and, thus, potential for impeachment. The State admits that, under Giglio, 405 U.S. at 154, 9 2 S. Ct. a t 766, 31 L. Ed. 2d at 108, wh en the reliability of a witness is determinative of guilt or innocence, nond isclosure of such evidence falls within Brady. In that case, where the entire State s case relied upon the credibility of the testimony of a key State witness, the Supreme Court held that evidence of any understanding or agreement as to a future pro secution w ould be relevant to his credibility. 405 U.S. at 154-15 5, 92 S. Ct. at 766, 31 L. Ed. 2 d at 108 . See also Ware v. S tate, 348 M d. 19, 41 , 702 A.2d 699, 710 16 (1997) ( [T]he prosecutor s duty to disclose applies to any understanding or agreement betwe en the w itness an d the St ate ). Essential to the inquiry into whether a Brady violation has occurred is the determination of who has the obligation to disclose and of what that obligation consists. The State s main contention, disagreeing with the C ourt of Sp ecial App eals, is that Brady and its progeny do n ot ex tend the d isclo sure obligatio n to information poss esse d by all prosecutors working in the same office. W e disagree w ith the State. obligation imposed by We hold that the disclosure Brady does, in fact, apply to information possessed by other prosecutors in the same office. In Kyles v. Whitley, 514 U.S. 419, 438, 115 S. Ct. 1555, 1568, 131 L. Ed. 2d 490, 508 (1995), to be sure, the Supreme Court held that the Brady disclosure o bligation includes information know n only to police in vestiga tors and not to th e prose cutor. Therefore, the Court pointed out, in order to comply with Brady, the individual prosecuto r has a duty to learn of any favorable evidence known to others acting on the government's behalf in the case, including the police. Id. at 437, 115 S. Ct. at 1567, 131 L. Ed. 2d at 508. This does not address, and certainly does not require, that prosecutors in the same office be insulated from the Brady disclosure requirement depending on whether they have had any involvement in a particular case. In Giglio, defense counsel asked a State s witness on cross-examina tion if any promises of leniency had been made, and the witness falsely answered no. 405 U.S. at 151152, 92 S. Ct. at 765, 31 L. Ed. 2d at 107. The prosecution misrepresented that no such 17 promises had been made, even though one had been. 405 U.S. at 152, 92 S. Ct. at 765, 31 L. Ed. 2d at 107. The Defendant moved for a new trial based upon this newly discovered information. 405 U.S. at 152, 92 S. Ct. at 765, 31 L. Ed. 2d at 107. The Sup reme Court rejected the contention that, because the attorney who ha d made th e deal did n ot report it to his superio rs or cow orkers, Brady did not apply. 405 U.S. at 154, 92 S. Ct. at 766, 31 L. Ed. 2d at 109. Instead, the Court held, [t]he prosecutor's office is an entity and as such it is the spokesman for the G overnm ent. A prom ise made b y one attorney m ust be attributed, for these purposes, to the Government. Giglio, 405 U.S. at 154, 92 S. Ct. at 766, 31 L. Ed. 2d at 109. The State acknowledges that the nondisclosure that occurred in Giglio deprived the defendant of a fair trial. Nevertheless, relying on the following excerpt from Giglio, We do not . . . automatically require a new trial whenever a combing of the prosecutor s files after the trial has disclosed evidence possibly useful to the defense but not likely to have ch anged the verdict, 405 U.S. at 154 , 92 S. Ct. at 76 6, 31 L. Ed . 2d at 108, it arg ues that a ne w trial is unwarranted. This does not explain why prosecutors within the same office do not come within the purview of Brady. If anything , Giglio compels a more careful probing of all the files with in the pro secu tor s office d uring dis covery in orde r to avoid later discovery of outcome-affecting, if not determinative, evidence. In In re Sealed Case, 185 F.3d 887 (D.C. Cir. 1999), a District of Columbia police officer applied for a warrant to search the home of the defendant, based on informant information that guns and ammunition were present within the home. 185 F.3d at 889. The 18 warrant was executed, guns and ammunition were found, and the defendant was arrested. 185 F.3d at 8 89. The defendant was charged in federal court with unlawful possession of a firearm and ammunition by a convicted felon. At trial, the defen dant soug ht to discover the identity of the informant, as well as any Brady information concernin g promise s made to th is informan t. 185 F.3d a t 889. Afte r this request was denied, the informant, a friend of the defendant s, came forward and admitted to the defen dant s attorney s investigator that he was working for the government in the federal case in order to get a deal in his own criminal case that was pending in D.C. Superior Court. 185 F.3d at 890. Defense counsel moved for disclosure of information about the witness s sealed cases and cooperation agreements respecting those cases. That request was denied. 185 F.3d at 891. The government believed, and therefore argued, that the cooperation agreements in the sealed cases involving governm ent witness es were n ot within the purview of Brady, presumably because, despite being prosecuted by attorneys from the same office, they were made in connection with and involved a case separate from the one as to which they were being sought, and the case to whic h they applied was in a se parate level of co urt. Thus, it arg ued the ag reements were not required to be disclosed. 185 F.3d at 891. The trial court agreed. 185 F.3d at 891. The United States Court of Appeals for the District of Columbia Circuit, however, rejected the argum ent. 185 F.3d at 8 96. It explained: We find equally unfounded the argument that any agreem ents [the inf ormant] may have had in his Supe rior Court c ases don't ha ve anything to do with th is case. ... Defenda nt's whole point was that [the informant] may have planted the gun in this ca se in order to work of f obligation s that arose in those Superior Court cas es. Hence , agreemen ts in the other c ases have everything to 19 do with this case. Nor doe s it matter that agreements in other cases may have involved other prose cutors. The United S tates Attorney's Office for the District of Columbia prosecutes cases in both the federal District Court and the local Superior Court, and the prosecu tor is respons ible (at a minimum) for all Brady information in the possession of that office. **** For a similar reason, we reject as irrelevant the contention that the requested records may have b een in the p ossession o f the Me tropolitan Police Departm ent, or the FBI or DEA, rather than the U.S. Attorney's Office. As the Supreme Court held in Kyles, the individual prosecuto r has a duty to learn of any favorable evidence known to the others a cting on the governm ent's behalf in the case, including the police. ... Anticipating Kyles, we specifically held in United States v. Brooks that prosecutors in this District are responsible for disclosing Brady information contained in MPD files, given the close working relationship between the Wash ington me tropolitan po lice and the U.S. Attorney for the District of Colum bia (who prosecutes both federal and District crimes, in both the federal and Superior courts). ... The same is true for files of the FBI and DEA which, like the U.S. Attorney's Office, are components of the U.S . Depa rtment o f Justice . . . . 185 F.3d at 896 (citations omitted) (emphasis added). Thus, it mattered little that the undisclosed information came from a different level of trial court in a different case; because the pro secutin g attorn eys came from th e same office , Brady applied. Some federal co urts have held that, in reference to offices and other involved persons outside of the p rosecu tor s of fice, Brady applies acc ording to o ne s participa tion level. United States v. Eley, 335 F. Supp. 353 (N.D. Ga. 1972), supports this proposition: It should also be pointed out that the Brady duty affects not only the office of the United States Attorney in Atlanta, but also any other investigative agencies of the Government which have gathered information as part of the case of the prosecution against the accused who seeks disclosure. Thus if the Bureau of Narcotics and Dangerous Drugs or the Federal Bureau of Investigation have participated in the case and have in their possession information which may be favorable to the accused, it must be disclosed to him. ... Of course, the prosecutor has no duty to disclose information in the possession of governmental agencies which are not investigative arms of the prosecution and 20 have not participate d in the case, even if such info rmation m ight be help ful to the acc used. ... 335 F. Supp. at 35 8 (citations omitted). As another example, in Barbee v. Warden, M aryland Penitentiary, 331 F.2d 842 (4th Cir. 1964), the court opined: [T]he effect of the nond isclosure [is not] neutralized because the prosecuting attorney was not shown to have had knowledge of the exculpatory evidence. Failure of the polic e to reveal su ch material e vidence in their possess ion is equally harmful to a defendant whether the information is purposely, or negligen tly, withheld. And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nond isclosure. ... If the p olice allow the State's Atto rney to produce evidence pointing to guilt without informing him of other evidence in their possession which co ntradicts this inference, state officers are practicing deception not only on the State's Attorn ey but on the c ourt and the defenda nt. 'The cruelest lies are often told in silence.' If the police silence as to the existence of the reports resulted from negligence rather than guile, the decep tion is no less dam aging. ... 331 F.2d at 846. The main d isagree ment w e have with th e State is the State s attem pt, as the post conviction court did, to bring the participation requirement, w hich plainly applies to actors outside the State s Attorney s Office, into the prosecutor s office itself. The State would require that, in order for Brady to apply, both persons outside of the prosecutor s office and those within the office must possess some involvement link to the case at hand. The State suggests that case law from other jurisdictions supports this interpretation. Upon our review of the cases it cites, however, we believe the State s reliance to be misplaced. The State cites first to three Massac husetts case s: Commonwealth v. Daye, 587 21 N.E.2 d 194 ( Mass . 1992) , Commo nwealth v. Tucc eri, 589 N.E.2d 1216 (Mass. 1992), and Comm onwea lth v. Sleeper, 760 N.E.2d 693 (Mass. 2002). Each of these cases involves an office outside of the prosecutor s office, or persons not in that office , and the ap plicability of Brady is based on the subject of fice s or person s participation, or lack thereof, in the subject prosecution. These cases stand for the proposition that persons outside of the prosecutor s office must be involved in the prosecution of the case at issue in order that the disclosure obligation under Brady apply to them. We reject, however, the State s use of these cases to imply that such a participation requirement equa lly applies within a prosecutor s office; they clearly do not stand for that conclusion. In Daye, a murder case, the defense argued that the Essex County District Attorney failed to disclose investigato ry evidence he ld by B osto n police o ffic ers, a sepa rate c oun ty, regarding possibly related murders. Despite the arguments made by the defense that the two counties were acting join tly, the Massachusetts court held [w]e hav e examined the rec ord and we are satisfied that it does not warrant the conclusion that a joint investigation was conducted. . . . Nothing in the re cord suggests that the prosecuto r in this case ha s access to the Boston police department files. 587 N.E.2d at 203. T he court then refus ed to impu te the k now ledg e of t he B osto n police to the Esse x Co unty D istric t Attorne y. Daye, the State contends, stands fo r the proposition that, for Brady purposes, information possessed by police officers could only be imputed to the prosecutor if the police officers were in volved with th e case a nd, thus , under s imilar log ic, individuals within the prosecutor s office, including other prosecutors within that office, are held to the same 22 standard. We di sagree . The circumstances surrounding this case are different than in Daye ; in this case, the information was not possessed by someone outside the State s Attorne y s Office, but, instead, by another prosecutor within the same office. Moreover, the Daye court s refusal to impute information in the possession of persons acting outside of the prosecutor s office, and not inv olved w ith the case, to those in the office, who were involved, is not inconsistent with our read ing of Maryland R ule 4-263 (g). The other tw o Ma ssachu setts cas es, Tucceri and Sleeper, do little to support the State s position. In Tucceri, the State failed to disclose photographs that were taken of the defendant at the tim e of his arrest by th e Cam bridge police d epartm ent. W hile acknowledging that new trials should not be granted unless there are substantial reasons for doing so, the Tucceri court agreed that the nondisclosure of the photographs was enough to warrant a n ew trial, and took the op portunity to com ment: [P]rosecutors, who are agents of th e State and often hav e access to information that defendants may not have, should be encouraged to disclose exculpatory evidence that in fairness defendants should have for their defense. Of course , a prosecutor cannot always know that a particular piece of evidence is or might be exculpatory. A rule that encourages prosecutors to make pretrial disclosures of obvio usly or even ar guably excu lpatory material w ould not o nly promote fair trials but would also help avoid the diffic ulties of post-trial judicial r eview . Tucceri, 589 N.E.2d at 1219-1220. Pursuant to this clearly iterated p erspective, the separate but limited proposition for which the State cites Tucceri, that [a] pros ecutor s du ty . . . extends only to exculpatory evidence in the prosecutor s possession or in the possession of the police who participated 23 in the investigation and presentation of the case, does not require the interpretation that the State gives it. Given the context, the Brady obligation quite c learly and unm istakeably applied to the Cambridge police because they were involved in the defendant s arrest and investigation. It does not shed any light on the level of involvement in the case required of individual prosecutors in the same office and it certainly does not reject the concept of a prosecutor s office being an entity. In fact, we read the word, prosecutor, as used by the Tucceri court, to refer to the prosecution as an entity, and not as an individual. At best for the State, the term is ambiguous. In Sleeper, another murder case, the State did not disclose that one of its witnesses, a psychiatrist, had a history that included charges of sexual miscon duct. Arguing that Brady compelled the disclosure of this evidence as impeachment evidence, the defendant moved for a new trial. The Supreme Judicial Court concluded that the psychiatrist who testified for the State was not a member of the prosecution team and, thus, was u nder no o bligation to disclose the info rmation about h imself. 7 60 N.E .2d at 71 2. Sleeper provides the State no h elp. In outlining the boundaries of the State s Brady obligation, the Sleeper court cites Daye in its description of the members of the prosecution team, noting that it includes members of [the prosecutor s] staff and ... any others who have participated in the investigation or evaluation of the case and wh o regularly report or 24 with reference to the particular case have reported to [the prosecutor s] office. 760 N.E.2d at 712, citing Daye , 587 N.E.2d at 203.5 If, theoretically, only a member of the prosecution team is compelled to disclose Brady evidence, then the concept of the prosecution team relies wholly on con text. In Sleeper, the psychiatrist w as not a me mber of th e prosecu tion team, but prosecutors and members of their staff indub itably are, as are po lice, when involved in the investigation and preparation of the c riminal c ase bein g prose cuted. T hat police sh ould be inc luded in the concept of the prosecution team is highlighted in anoth er case that th e State imp roperly relies upon, State v. Swanson, 240 N.W.2d 882 (Minn. 1976). In that case, the defendant alleged that the prosecution had fa iled to reveal th at a Minn eapolis polic e officer w as told by a non-witness that a contract to kill the defendant had been put out. The defendant alleged that this statement was material because it buttressed the defendant s reasons for originally carrying a gun. A lthough u ltimately disagreeing that the infor mation w as material, the Supreme Court of Minnesota stated that [w ]e do ... agree ... with defendant s argument that the police detective must be viewed as a part of the prosecution for purposes of applying the Brady rule. 24 0 N.W .2d at 82 8 n.5 5 We note that the original quote from Daye reads: ...members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office. It is curious that the Sleeper court decid ed to omit th e second of, in its qu ote, as this omissio n, we b elieve, m aterially ch anges t he me aning o f the ph rase. 760 N.E.2d at 712. 25 In addition, this co ncept of the prosecution team supports this Court s belief that prosecutors within the same office are not excused fro m their Brady obligations. The duty, as pr escr ibed by Sleeper, applies to all me mbers of the p rosecu tion staf f. The State cites People v. Robinson, presumably, because the Illinois Sup reme Court declined to impute know ledge of the investigating of ficers to other state employees. 623 N.E.2d 352, 358 (Ill. 1 993). Robinson, however, while acknowledging that it would be improper to impute per se the knowledge of every State employee involved in a criminal case to the prosecution, elaborated: [W]e believe that the imputation of such knowledge to the prosecution requires an individualized focus on the factual circumstances. Among the factors to be considered would be the reasonableness of such imputation, whether the failure to transmit such knowledge up the informational chain was inadve rtent or in tentiona l and w hether a ny real pre judice o ccurred . 623 N.E.2d at 358. A federal case that the State relies on, United States v. Avellino, further undermines the State s position. The Brady obligation extends only to m aterial eviden ce ... that is know n to the prosecutor. ... An individual prosecutor is presumed, however, to have knowledge of all inform ation gathe red in conn ection with his office's investigation of the case and in deed has a duty to learn o f any favora ble evidence known to the others acting on the government's behalf in the case, including the polic e. ... Nonetheless, knowledge on the part of persons employed by a different office of the government does not in all instances warrant the imputation of knowledge to the prosecutor, for the imposition of an unlimited duty on a prosecutor to inquire of other offices no t working with the prosecutor's office on the case in question wo uld inappropriately require us to adopt a monolithic view of government that would condemn the prosecution of criminal cases to a state of para lysis. ... Thus, in United States v. Locascio ... we refused to impute to the AUSAs prosecuting that action 26 knowledge of reports prepared by FBI agents who were uninvolved in the investigation or trial of the defendants-appellants. ... In United States v. Quinn ... we refu sed to impu te the knowledge of a Florida prosecutor to an AU SA in New York, rejecting as completely untenable [the] position that knowledge of any part of the governm ent is equiva lent to know ledge on th e part of this prosecutor. Avellino, 136 F.3d 249 , 255-256 (2d. Cir. 199 8) (citations omi tted) (em phasis a dded). While the State cites the Second Circuit opinion for the notion that knowledge of other governmental offices not work ing with the prosecuto r is not imputed to the prosec utor s office, it should be remembered that the case sub judice involves a prosecutor within the same office. Moreover, we again read the word prosecutor to symbolize the prosecutor s office as an e ntity. In each of the cases cited by the State, the in dividuals or offices sought to be included under the Brady obligation were not membe rs of the pro secutor s of fice and q ualified, or no t, based on participation. Thus, we reject the State s attempt to extend the holdings of these cases further than they actually reach. These cases cannot be used to import the participation requirement into the prosecutor s office itself. We have, in the pas t, imputed the knowledge of one government official to that official s entire department, but in some contexts, we might refuse to do so vica riously. See Gatew ood v. State , 388 Md. 526, 541-542, 880 A.2d 322, 331 (200 5). To decide this case in the manner the State urges would be inconsistent, for example, with our prior case law allowing probable c ause to be based on the collective know ledge o f the po lice. Mobley and King v. State, 270 M d. 76, 81 , 310 A .2d 803 , 807 (1 973), cert. denied, 416 U.S. 975, 94 S .Ct. 27 2003, 40 L. Ed . 2d 564 (1 974); Hopk ins v. State, 239 Md. 517, 520, 211 A.2d 831, 833 (1965); Johnson v. State, 238 Md. 528, 539, 209 A.2d 76 5, 770 (19 65); Mercer v. State, 237 Md. 479, 483, 206 A.2d 797, 800 (1965); Farrow v. State, 233 Md. 526, 531-32, 197 A.2d 434, 436 -37 (1963 ); Carter v. Sta te, 18 M d. App . 150, 15 4, 305 A .2d 856 , 858 (1 973). In Carter, in which a car was stolen and recovered on the same day, but the stolen car report was not also cancelled, the Court of Special Appeals held that the later arrest of an individual driving the reportedly stolen car was illegal, explaining, the police department should have known that [the stolen vehicle report] was erroneous, since police officers had recovered the vehicle and tags originally reported stolen on January 10, 1969." 18 Md. App. at 154, 3 05 A.2d at 859. Furthermore, because the information on which the police acted was its own "outdated copy of an erroneous report of a stolen motor vehicle which the police had recovered on the same day it was taken," the arresting officer, a part of the police team, "must be charged with the knowledge that the report was, in effect, rescinde d when m embers of the Baltimore City Police Department recovered the car shortly after it was stolen. Acc ordingly, the erroneous information transmitted [to the arrestin g officer] a nd on the b asis of which he arrested the appellant was clearly insufficient to show probable cause." 18 Md. App. at 156, 305 A.2d at 860. This approach towards imputing the knowledge of one police officer to the entire department was further reinforced in Ott v. State, 325 Md. 206, 600 A.2d 111 (1991), in which a police officer, suspicious of two people sitting in a park ed car, radioed their identities to the police department for a background check. After the computer check 28 revealed an outstanding warrant, the officer searched the car incident to arrest and discovered drugs and paraphernalia. No outstanding warrant, in fact, existed, because the bench warrant had been satisfied a month earlier, but had not be en remov ed from th e police com puter. This Court determined the search was illegal, holding: The arresting officer had no actual knowledge that the warrant on which he arrested petitioner was no lon ger outstanding. In that sense, then, he acted in subjective good faith. Nevertheless, he was chargeable with knowledge of the war rant's invalidity. Since an officer in the Sh eriff's Dep artment ha d previou sly served the wa rrant, tha t departm ent mu st have know n that it w as outd ated. 325 Md. at 219, 600 A.2d at 117. The policy basis for our decision is simple: imputing the knowledge of any evidence held by one prosecutor to another prosecuto r within the s ame off ice will, poten tially, avoid problems of intention al shielding o f informa tion and the existence o f artificially created circumstances in which prosecutors can plausibly deny having had access to any exculpatory evidence. As noted in Swanson, regarding a prosecutor s disclosure of exculpatory evidence during a trial as opposed to diligently investigating and disclosing such evidence to defense counsel p rior to trial, If a prosecutor s response, I told you as soon as I knew, is a ccepted to permit police withholding of evidence material to guilt or punishment, police would be encou raged to withhold such ev idence from pros ecutors until after trial. 240 N.W .2d at 828 n.5 (citations omitted). It is especially impo rtant to addre ss and antic ipate this potential for abuse when pursuing equality and fairness in criminal trials. [T]he duties of a p rosecutor to administer 29 justice fairly, and particularly conc erning requ ested or ob viously exculpatory evidence, go beyond winning convictions. Tucceri, 589 N.E.2d at 1220. T he State ha s a unique role in the criminal justice process. Although it is indeed the prosecutor of all criminal charges, the State, should no t just be in the b usiness of o btaining gu ilty verdicts. See, e.g., Attorney Grievance Comm'n of Maryland v. Gansler, 377 Md. 656, 835 A.2d 548 (2003) (holding that a prosecutor has an obligation to protect not only the public interest but the innocent a nd to safeguard the rights guarantee d to all persons, inc luding thos e who m ay be guilty); Walker v. State, 373 Md. 360, 818 A.2d 1078 (2003) (holding that prosecutors are held to even higher standards of conduct than other attorneys due to their unique role as both advocate and minister of justice). The Suprem e Court has articulated, instead, that there is a special ro le played by the American prosecutor in the search for truth in criminal trials. Strickler, 527 U.S. at 281, 119 S . Ct. at 19 48, 144 L. Ed. 2 d at 301 -302. See also Kyles, 514 U.S. at 439440, 115 S. C t. at 1568, 13 1 L. Ed. 2d at 509; Bagley, 473 U.S. at 675, n.6, 105 S. Ct. at 3380, 87 L. Ed. 2d at 490. Further, in United States v. Berger, the Supreme Court opined: The United States Attorney is the representative not of a n ordinary par ty to a con troversy, but of a sovereign ty whose ob ligation to go vern impa rtially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-inde ed, he shou ld do so. B ut, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful convic tion as it is to use e very legitim ate mea ns to brin g abou t a just on e. 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L . Ed. 2d 1314, 132 1 (1935). 30 Acc ordingly, in deciding the coverage area of the Brady obligation, it is prop er to consider the State s Attorney Office as a single entity. As the seeker of truth, the State, as prosecutor, cannot seek to insulate itself f rom its con stitutionally mandated duty by dividing itself into pieces, thus permitting one piece to claim ignorance of the knowledge of the other pieces. Hesitant to allow for a situation in which state officials may claim lack of involvement with a case in order to limit or prevent the disclosure of e xculpatory evidence, we can conceive of no reason why individuals in a prosecutor s office should be treated differently under the Brady standard. B y enforcing a consistent sta ndard ap plicable to all in the State s Attorney s Office, we believe that nondisclo sures such as the one le ading to this appeal will be avoided. Courts have already held the government accountable for the avoidance of the constitutiona lly mandated Brady duty, whether through action or omission. In United States v. Osorio, 929 F.2d 753 (1st C ir. 1991), a drug conspiracy case involving the nondisclosure by the State of a key witness s extensive drug history, the court scolded the prosecuto r s office f or ignoring su ch a c lear a nd undebata ble d uty: Irrespective of the reasonable strategic use defense counsel m ade of the late disclosed impeachment material, we still confront the disquieting problem of the government's negligence in meeting its disclosure duties. We have had occasion before to comment on sloppy practice in the prosecutor's office with respect to disclosures concerning the impeachable pasts of cooperating govern ment w itnesses . . . . The n egligen ce here fits that p attern of practice . 929 F.2d at 755. F urther, Neither the individual nor the institutional responsibility of government counsel may be sloughed off so easily. . . . The government is not a cong ery 31 of independent hermetically sealed compartments; and the prosecutor in the courtroom, the United States Attorney's Office in which he works, and the FBI are not separate sovereignties. The prosecution of criminal activity is a joint enterprise among all these aspects of the government. An d in this prosecution, the government as such a joint enterprise plainly did not provide known impeachment information about [the key witness] as soon as it became aware of it. 929 F.2d at 760-761.8 The United States Cou rt of Appeals for the First Circuit, moreover, has held that when the State imp edes, throug h its own la ck of dilige nce, the def endant s rig ht to exculpatory and impeachment evidence, such a breach of duty is egregious: It is wholly unacceptable that the Assistant United States Attorney trying the case was not prompted personally or institutionally to seek from knowledgeable colleagues highly material impeachment information concerning the government's most significant witness until after defense counsel got wind of it independently and indirectly from another government source . 929 F.2d at 761.9 8 The Court of Ap peals for the D.C. C ircuit also rejected the notion that exculpa tory information that was in the hands of the Metropolitan Police Department, the FBI, or DEA , rather th an the U .S. Atto rney s O ffice, so meho w abs olved th e State o f its duty. In re Sealed Case, 185 F.3d at 896. 9 The court in United S tates v. Oso rio, 929 F.2d 753 (1st Cir. 1991), commented that, regarding Brady disclosure, [i]t is good strategy. No properly prepared trial lawyer should pe rmit himself to be surprise d by the vulne rability of his witn ess, particularly when that vulnerability is well known by his colleagues. To do so needlessly hands a strategic adv antage to o ne's adversa ry. And it is not m erely sloppy perso nal practice; it implicates the procedures of the entire office for responding to discovery ordered by the court. Osorio, 929 F.2d at 761. 32 In State v. Siano, the Connecticut Supreme Court was critical of the scenario in which the State bla tantl y could violate its Brady duty without consequence. It articulated the harmful repercussion s of allowing that to occu r: [I]f the state has no responsibility ... to take affirmativ e steps to ga in knowledge of the criminal records of its witnesses, a defendant in many instances would be placed in the anomalous position, as was the defendant here, of having to depend on the witness whom he seeks to impeach for reliable inform ation to a ccom plish tha t impea chme nt. ... To force the defendant to rely on the very witness he is endeavoring to impeach for an accurate account o f his crimina l record is illogic al and wo uld be antith etic to what the rule was intended to accomplish. ... There is ... an obligation on the part of the state ... to make a reasonable affirmative effort to obtain a rec ord of a s tate's witness' felony convictions and pending misdemeanor and felony charges for disclosure to the defendant. That conclusion requ ires that a prosecutor is at least obligated to make known to a defendant, at the proper time, information concerning the criminal record of a state's witness tha t is known to the prosecutor or is contained in the prosecutor's own case file, information that can be gained through reasonable inquiry of other prosecutorial personnel in the prose cutor's office , and inform ation that is reasonably available to the prosecutor through his access to state and federal computerized criminal information systems. Anything less, we be lieve, wou ld compromise the effectiveness of [the State s Brady obligation] and in many instanc es wo uld ren der it a nu llity. 216 Conn. at 279-280, 579 A.2d at 82-83. The State acts as one unit, and as such, declining to make a reasonable inquiry of those in a position to have relevant knowle dge is app ealable error.10 It is not good enough 10 Some courts have treated the State like a corporation, finding the imputation of collective knowledge on its individual employees and agents when assessing individual emplo yees and agents to be ap plicable in the S tate con text. See, e.g., Osorio, 929 F.2d at 761, citing United States v. Bank of New England, 821 F.2d 844, 85 5 (1st Cir. 1987), cert. denied, 484 U.S. 943, 108 S. Ct. 328, 98 L. Ed. 2d 356 (1987) (finding no reason why similar principles of institutional responsibility should not be used to analyze the actions of individual government attorneys called upon to represent the government as an institution in matters of court-ordered d isclosure obligations). 33 to claim that another part of the State failed in its duty, and this failing resulted in the prosecutor being una ble to fulfill his or he r personal o bligation. W hile investigative agents, for example, may be subject to some sort of punishment for their lack of diligence, [u] ltima tely, regardless of whether the prosecutor is able to frame and enfo rce directives to the investigative agencies to respond candidly and fully to disc losure orde rs, responsib ility for failure to m eet disclosure obligations w ill be assessed by the courts against the prosecutor and his office. Osorio, 929 F.2d at 762. E. The State claims that [d]efe nse coun sel, having b een prov ided with Sean Williams s criminal record, could have chosen to delve into his backg round in o rder to obtain additional impeachment information. ... The d ue dilige nce bu rden is th e defe ndant s, not the State s. 11 11 Althoug h the respo ndent urg es this Cou rt to hold that th e State wa ived its argumen t that a defen dant has a d uty to investigate, w e note that ce rtiorari was p roperly granted on the issue, and, thus, we have the authority to address it. The State included the issue in its Petition for Writ of Certiorari, which we granted, without, it must be noted, excepting that issue. Moreover, the respondent did not raise, by way of cross-petition, whether the duty to investigate issue had been waived. By not himself contesting the issue and its waiver status in a cross-petition, the respondent has not preserved the issue of wa iver for our rev iew. See Holbroo k v. State, 364 Md. 354, 772 A.2d 1240 (2001) (Defen dant failed to preserve f or appellate r eview his claim that co nvictions sh ould merge as m atter of "fun damenta l fairness"; tha t argumen t was neithe r included in his petition for wr it of certi orari no r argue d befo re interm ediate a ppellate court). See Maryland Rule 8-131, detailing the scope of review of the Maryland Court of Appeals, which p rovides, as p ertinent: (b) In Court of Appeals--Additional Limitations. (1) Prior Appellate Decision. Unless otherwise provided by the order granting the writ of certiorari, in reviewing a decision rendered by the Court of Special 34 The State further argues that Brady does not relieve a defendant from a duty to investigate, and that, under Ware, 348 Md. 19, 38-39, 702 A.2d 699, 708, a Brady violation does not occur when the defense counse l should have kno wn of potentially exculpatory evidence or impea chme nt infor mation , and do es not e xercise reason able dilig ence to exploit i t. We are not persua ded. A defendant s duty to investigate simply does not relieve the State of its duty to disclose exculpatory evidence under Brady and Maryland R ule 4-263(g). In Banks v. Dretke, the Suprem e Court he ld, in respons e to a similar ar gument: The State here ... urges, in effect, that the prosecution can lie and conceal and the prisone r still has the burden to ... disco ver the e videnc e, ... so long as the potential existence of a prosecutorial misconduct claim might have been detected ... A rule t hus de claring prosec utor ma y hide, de fenda nt mus t seek, is not tenable in a system constitutionally bound to accord defendants due proces s. 540 U.S. 668, 69 6, 124 S. Ct. 1256, 12 75, 157 L. Ed. 2d 1166, 1193 (20 04). The Banks Court held firm that there is a presumption by courts, litigants, and juries that the State will refrain from using improper methods in order to secure convictions, and that burdens p lainly resting on th e State will be faithfully observed. 540 U.S. at 696, 124 S. Ct. at 12 75, 157 L. Ed. 2 d at 119 3, citing Berger, 295 U.S. at 88, 55 S. Ct. at 633, 79 L. Ed. 2d at 1321. See also Bracy v. Gramley, 520 U.S. 899, 909, 117 S. Ct. 1793, 1799, 138 Appea ls or by a circuit court acting in an appellate capacity, the Court of Appea ls ordinarily will consider only an issue that has been raised in the petition for certiorari or any cross-petition and that has been preserved for review by the Co urt of A ppeals . 35 L. Ed. 2d 97, 106 (1 997) ( Ordinarily, we presu me that pu blic officials h ave prop erly discharged their official duties ). Furthermore, the authority cited by the State, Ware, only addresses information that could have bee n ascertained by defendant s counsel from public records, and, even in that insta nce, does not fully r eliev e the State of i ts du ty: Merely because evidence is available through public records, however, does not necessarily mean that it is available to the accused for purposes of determining whether the Brady rule applies.... Even when the ex culpatory information can be found in public records, the necessary inquiry is whether the defendant knew or should have known facts that would have allowed h im to access the undisclosed evidence.... Furthermore, the existence of evidence in the public record does not suffice to re lieve the State of its duty to disclose material, favorable evidenc e to the defense unless a reasonable defendant would have lo oked to that pub lic recor d in the e xercise of due diligenc e. 348 Md. at 39-40, 702 A.2d at 708-709. This case presents a more restrictive setting. Here, the undisclosed information of S. Williams s status as a paid informant could have come only from the State s Attorney s Office or the police. Where exculpatory or mitigating evidence is accessible only through the State, or with its co operation, it sim ply cannot be that the defe nse must e ngage in a futile attempt to gather Brady information. As a general rule, the omissions of defense counsel (a) do not relieve the prosecution of its obligation to disclose exculpatory evidence and (b) may provide the defendant with an independent claim of an unconstitutional denial of the effective assistance of counsel. Tucceri, 589 N.E.2d at 1221. 36 F. Lastly, the State co ntends that, even if Brady inform ation w as illega lly withhe ld, that information was not material to the responde nt s case. A gain, we d isagree. Th e analysis of the Court of Special A ppeals is bo th on point an d correct. Evidence is material un der Brady when the favo rable evide nce could reasonab ly be taken to p ut the whole case in such a different light as to undermine the confidence in the verdict. Kyles, 514 U.S. at 435, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506. Moreover, [a] defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there wo uld not have been enough left to convict. 514 U.S. at 434-435, 115 S. Ct. at 1566, 131 L. Ed. 2d at 506. All that is required is a showing of a reasonable probability of a different result. 12 Kyles, 514 U.S. at 434, 115 S. Ct. at 1566, 131 L. Ed. 2d at 50 6, citing Bagley, 473 U.S. at 678, 105 S. Ct. at 3381, 87 L. Ed . 2d. at 491-492 (internal quo tation marks omitted). The Court of Special A ppeals relied primarily on Conyers v. S tate, 367 Md. 571, 790 A.2d 15 (2002). In Conyers, this Court conclude d that evidence was ma terial when it provided the only direct link between the [defendant] and the crime. 367 Md. at 613, 790 A.2d at 40. The Cou rt of Special Appeals noted that the case sub judice and the circumstances in Conyers were very similar, in that b oth cases in volved the State disputing whether the witness s testimony w as, in reality, the only link between the defendant and the crime. This Court in Conyers rejected the State s argument, concluding: 12 Again, as we highlighted in supra, n.4, the correc t standard is r easonab le possibility under Dorsey. 37 While there was circumstantial evidence adduced during the guilt/innocence portion of the trial that w ould perm it a reasonab le jury to conclude that Petitioner was a pa rticipant in her m urder, it is less apparent that, absent belief of [the government witness s] testimony, the evidence would have been sufficient to find, beyond a reasonable doubt, Petitioner was the principal. If [the government witness s] testimony is to be believed, there are no inferences that need be drawn from the circumstantial evidence, either at trial or sentencing , in order to conclude that Petitioner was involved, or the shooter, in both murde rs. Conyers, 367 Md. at 613, 790 A.2d at 68-69. The Cou rt of Special A ppeals, in relying on Con yers, acknow ledged tha t the State produced some circumstantial evidence implicating the respondent; however, it was convinced that it was insufficient to sustain his conviction, that is, absent the S. Williams s, the key witness , tes timony. Acc ordingly, it held th at the taint of the Brady suppression matters on this record so undermines our confidence in the murder conviction that a new trial is in order. Williams, 152 Md. App. a t 227, 83 1 A.2d at 517, citing Conyers, 367 Md. at 613, 790 A.2d at 40. In its brief, the State cites Kyles for the proposition that the mere fact that a prosecutor knows of favora ble exculp atory evidenc e unkno wn to the d efense is n ot, without more, a Brady violation. 514 U.S. at 437, 115 S. Ct. at 1567, 131 L. Ed. 2d at 507-508. ( [T]he Constitution is not violated every time the government fails or chooses not to disclose evidence that might prove helpful to the defense ). This proposition is taken out of context, however, and, in any event, does not fully convey the Kyles Court s analysis or holding. In Kyles, the petitioner was convicted of first-degree murder and sentenced to death; his convic tion wa s affirm ed on d irect app eal. State v. Kyles, 513 S o. 2d 26 5 (La. 1 987), cert. 38 denied, 486 U.S. 1027, 100 L. Ed. 2d 236, 108 S. Ct. 2005 (1988). On state collateral review, it was revealed that the State had not disclosed certain Brady evidence; however, the relief was nonetheless denied.13 State ex rel. Kyles v. Butler, 566 So. 2d 386 (La. 1990). In evaluating these circumstances, the Kyles Court applied the fou r factors enu merated in United States v. Bagley, 473 U.S. 667 , 87 L. E d. 2d 481, 105 S. Ct. 3375 (1985), that determined materiality: first, that a showing of materiality does not require a demonstration by a preponderance of the evidence that disclosure of the suppressed evidence would have resulted ultimately in the defendant s acquittal; second, that materiality is not determined by a sufficiency of the evidence test; third, that a Bagley error was not harmless error; and fina lly, that materiality in terms of suppressed evidence is considered cumulatively, not individu ally. 514 U.S. at 434-437, 115 S. Ct. at 1565-1567, 131 L. Ed. 2d at 506- 507, citing Bagley, 473 U .S. 667 , 87 L. Ed. 2d 481, 105 S. Ct. 3375. It is from this fourth aspect of Bagley mate rialit y that the State draws its suppo rt; however, a close reading of the entire passage c larifies its mean ing and tha t meaning does not su pport the S tate s argum ent: While the definition of Bagley materiality in terms of the cumulative effect of suppression must accordingly be seen as leaving the government w ith a degree of discretion, it must also be understood as imposing a corresponding burden. On the one sid e, showing that the prosecution knew of an item of favorable evidence unknown to the defense does not amount to a Brady violation, without more. But the prosecution, which alone can know what is undisclosed, must be as signed the c onseque nt responsib ility to gauge the lik ely 13 The undisclosed evidence included eyewitness statements, statements given by an informant who was never called to testify, and a computer print-out of license numbers of cars parked at the crime scene on the night of the murder. The latter did not include the license number of the petitioner s car. 514 U.S. at 450, 115 S. Ct. at 1573, 131 L. Ed. 2d at 516. 39 net effect of all such evidence and make disclosure when the point of reasonable probability is reached. This in turn means that the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police. But whether the prosecutor succeeds or fails in meeting this obligation (whether, that is, a failure to disclose is in good faith or bad faith, see Brady, 373 U.S. at 87), the p rose cutio n's responsibility for failing to disc lose know n, favorab le eviden ce rising to a ma terial leve l of imp ortance is inesca pable. 514 U.S. at 437-438, 115 S. Ct. at 1567-15 68, 131 L . Ed. 2d at 50 8. In order to carry its burden, the State has a duty to seek out and disclose all favorable Brady evidence, and that responsibility canno t be shif ted onto anothe r party. Kyles, therefore, does not assist the State. The State sugg ests that Agurs illustrates the Su preme C ourt s previo us rejection of the notion that a prosecutor must disclose anything, and everything, that might influence a jury, commenting: If everything that might influence a ju ry mus t be d isclo sed, the o nly way a prosecutor could discharge his constitution al duty would be to allow com plete discovery of his files as a matter of routine practice.... Whether or not procedural rules authorizing such broad discovery might be desirable, the Cons titution d oes no t dema nd that m uch. 427 U.S. at 109, 96 S. Ct. at 2400, 49 L. Ed. 2d at 353. Th is passage merely touches upon the intent of the Supreme Court majority in Agurs. While the Suprem e Court did acknowledge it could not consistently treat every nond isclosure as a n error, it ultimately held that if such undisclosed evidence potentially would have affected the outcome o f the trial, nondisclosure of suc h material or information w ould be constitutionally improper: The proper standard of materiality must reflect our overriding concern w ith the justice of the finding of guilt. Such a finding is p ermissible o nly if supported by evidence establishing guilt beyond a reasonable doubt. It necessarily follows that if the omitted evidence creates a reasonable doubt that 40 did not otherw ise exist, constitu tional error ha s been co mmitted.... [I]f the verdict is already of question able validity, add itional eviden ce of relative ly minor im portan ce mig ht be su fficien t to create reason able do ubt. 427 U.S. at 112-113, 96 S. Ct. at 2401-2402, 49 L. Ed. 2d at 354-355. Finally, the State refers to the post con viction court s finding that the respo ndent s cross-examination of S. Williams was nothing short of superb, and that the witness had been sufficiently attacked. The Court of Special Appeals rejected this rationale, as do we. Relying again on Conyers, the Court o f Special A ppeals po inted out: Ap pella nt's trial counsel cro ss-examin ed William s about his criminal record and his testimony in a nother ho micide cas e. Neverth eless, couns el had no direct evidence with which to cross- examine Williams as to his receipt of benefits for the information he had provided to police. For these reasons, we cannot say that, if the jury had been informed o f the totality of the circumstances surround ing William s's status as a paid police informant and his attempts to have Judge Schwa it reduce his se ntence be cause of h is cooperation with the police, there would be neither a substantial possibility nor a reasonable probab ility that the outcome would ha ve been different. Williams, 152 Md. App. at 228, 831 A.2d at 517. We agree. The caliber of the defense counsel s performance in cross-examining the critical State s w itness ha s little, if an y, bearing on ma teriality. We certainly are not inclined to make the test of materiality of undisclosed evidence depend on the capability or actual performance of opposing counsel in conducting cross-examination of an adverse witness. This case addresses the duty of the State, a duty that is not dischar ged no m atter how w ell a defendant s counsel handles h is client s defe nse and h ow exp ertly he or she en deavors to neutralize dama ging ev idence . In gauging the nondisclosure in terms of due process, the 41 focus must be on the essential fairness of the procedure and not on the astuteness of either couns el. Barbee, 331 F .2d at 84 6. While it may be true that the adequacy of cross-examination may invite speculation as to whether the undisclosed evidence would have affected the outcome of the case, such speculation does not affect the ultimate question, that of the materiality of such evidence, and it certainly does not affect the duty that the State has to discharge the obligation imposed upon it by Brady. JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED, WITH CO STS. 42
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