Appeal Brief
Court of Appeals of Maryland
Maryland v. Craig

September Term, 1988
No. 110

Appeal from the Circuit Court for Howard County

William H. Murphy, Jr.^*

Editor's note: The following is an appeal brief in the case of Sandra Ann Craig v. Maryland.  Mrs. Craig was a day care operator who was accused of sexual abuse and assault of several children in her day care center.  She was convicted of sticking a five-year old girl with thumbtacks on her hands and arms, and inserting a stick in the child's vagina.  The appeal questions were:

I. Was evidence that could have exculpated Ms. Craig or created a reasonable doubt of her guilt withheld by the state?

II. Did the trial court violate the confrontation clause, due process, and Wildermuth by permitting the child witnesses to testify on one-way closed-circuit television pursuant to CJ9-102?

The portion of the brief pertaining to the first question is presented here.
  

Statement of the Case

On October 16, 1986, Sandra Ann Craig was indicted for the crimes of Child Abuse, 1st Degree Sexual Offense, 2nd Degree Sexual Offense, Perverted Practice, Assault and Battery.  On April 1, 1987, Mrs. Craig was convicted by a jury of Child Abuse, 1st Degree Sexual Offense, 2nd Degree Sexual Offense, Perverted Practice, Assault and Battery (Raymond Kane, Judge).  Mrs. Craig filed a Motion for New Trial which was amended by present counsel on June 5, 1988, August 11, 24, and 25 and September 21, 1987.  Hearings on the Motion for New Trial were held on August 11, 24 and 25, 1987.  When Wildermuth v. Maryland, 310 Md. 496, 530 A.2d 275 (1987) was decided on September 10, 1987, Mrs. Craig again moved for a new trial, which was denied on September 21, 1987.  She was then sentenced to terms totaling 10 years' imprisonment.  That day she noted her appeal to the Court of Special Appeals.  On August 3, 1988, Mrs. Craig's convictions were affirmed by the Court of Special Appeals, Craig v. State, 76 Md. App. 250 (1988).  (E.15)  On September 2, 1988, she filed a Motion for Reconsideration and Stay of the Mandate.  The Court of Special Appeals stayed the mandate until September 29, 1988, having denied her Motion for Reconsideration on September 28,1988.  A petition for writ of certiorari to this Court was filed on the 14th day of October, 1988 and granted on December 21, 1988.
  

Question Presented

Was evidence that could have exculpated Mrs. Craig or created a reasonable doubt of her guilt withheld by the State?
  

Statement of Facts

On an indictment returned by the Howard County Grand Jury which alleged no facts, and after a 14-day trial involving 29 State's witnesses and 43 defense witnesses, Mrs. Craig was convicted of child abuse, assault and related charges and received a 10-year sentence based essentially on testimony by Brooke Etze, almost seven, who claimed that between September, 1984 and June, 1986, Mrs. Craig hit her "private parts" with a stick and stuck her with thumbtacks when Brooke was between four and six years old.  This testimony was corroborated by the testimony of Justin Peeples, four, who claimed that Mrs. Craig put a screwdriver in his anus at some time between March, 1985 and February, 1986, when he was between two and three years old; by the testimony of Jessie Sue Smith, five, who claimed that Mrs. Craig put a stick in her anus at some time between January, 1985 and April, 1985, when she was between two and three years old; and by the testimony of Drew Woodbury, five, who claimed that between January, 1985 and November, 1985, Mrs. Craig put an unidentified object in his anus when he was between three and four.  These children were permitted to testify under the "other crimes" .exception.

Mary Burke, Brooke's therapist, who was not qualified at trial as an expert, was permitted to tell the jury that Brooke was an abused child who manifested the symptoms of child abuse and was permitted to relate Brooke's allegations of abuse by Mrs. Craig.  The children's parents were permitted to tell the jury what their children had said to them about being abused by Mrs. Craig.  All these acts were alleged to have happened at Craig's Country Pre-School, a highly regarded nursery school near Columbia owned by Mrs. Craig.

Dr. Charles Shubin, a pediatrician, testified that Brooke had a small scar in her vagina consistent with being penetrated by a stick and was permitted to characterize the scar and what he called an abnormally large vagina as a "healed sexual injury."  He testified that Jessie Sue had a "severe sexual injury" to her vagina and that her vagina was also abnormally large.  He testified that Justin and Drew had small scars in their anuses which he similarly characterized as "sexual" injuries.

For the defense, Dr. Larry Wissow, a pediatrician appointed by the court at Mr. Kolodner's request to examine the children, testified that Brooke's vagina was a normal size for her age.  He said, however, she had a vaginal infection at the time of his examination which prevented him from determining whether she was scarred inside.  Otherwise, Dr. Wissow's testimony was similar to Dr. Shubin's.

The defense called Dr. Leopold Walder, a clinical psychologist, to rebut Mary Burke's opinion that Brooke manifested the behavior profile of an abused child and her opinion that in fact she had been abused.  The trial judge did not permit Dr. Walder to testify in these areas but did permit him to testify that it was possible in the abstract for children to be influenced by adults to make false complaints of child abuse.  The last significant witness for the defense was the defendant herself, who denied the charges.

On rebuttal, Dr. Leon Rosenberg, a clinical psychiatrist, testified that in his opinion it was not possible for adults to interact with children in such a way as to cause them to make false complaints of child abuse.

Before trial, on January 20 and 21, 1987, in response to a request by the State that the children not be required to testify in open court, trial judge Raymond Kane heard testimony from their therapists and concluded, without questioning or observing any of the children, that they should testify at trial on one way closed-circuit television.

After the trial, Mrs. Craig discharged Mr. Kolodner and hired new counsel, who filed a motion for new trial which was heard on August 11, 24, and 25, and on September 21, 1987.  Before the hearing, new counsel obtained by subpoena the therapists', psychologists', and psychiatrists' notes of each of the many dozens of sessions they had with the four children.  Defense counsel also obtained by subpoena the records of the Howard County Health Department (HD), the Howard County Department of Social Services (DSS) and the Howard County Sexual Assault Center (SAC).  None of these records had been sought or obtained by Mr. Kolodner.  The prosecutors also claimed not to have seen these voluminous documents.

Among other things, these records established that Mary Burke, Brooke Etze's therapist, believed that "fantasy and reality were mixed up for this child."  Her notes revealed that Brooke told Dr. Shubin that a child named "Mica" caused the injury to her vagina.  Brooke told Mrs. Burke that "Jamal" had put his penis in her vagina and hurt her "privates" with his hand.  Brooke had said that other children had bit her in her private parts and that Mrs. Craig had hit her with a rock, not a stick as she had testified at trial.  Mary Burke's notes indicated that Brooke had misidentified Zena Craig, 17, as Mrs. Craig, 40, and Jamal, 15, as Michael Craig, 42.  Her notes revealed that Brooke also implicated children named "Stacey" and "Shannon" in the alleged abuse, that she had accused a "black boy" and a "red-haired boy" of injuring her in her "privates," and that a boy named "Chris" bit her in her "privates."  The records revealed similar information about Jessie Sue Smith, Drew Woodbury, and Justin Peeples, as will be discussed during argument infra.  Finally, the records revealed a wealth of information casting doubt on both the credibility of the children and their competency to testify.  At the hearing on the motion for new trial, prosecutor Kate O'Donnell testified that she had attended 11 therapy sessions with Brooke Etze where much of this evidence was revealed.  Likewise, she attended dozens of other sessions with the other children.

Notwithstanding this information, Judge Kane denied the motion for new trial on August 25,1987 and sentenced Mrs. Craig on September 21, 1987 to concurrent terms of 10 years.  Mrs. Craig noted her appeal the same day.  Mrs. Craig's conviction was upheld by the Court of Special Appeals in Craig v. State, supra, on August 3, 1988, and her motion for reconsideration was denied by that Court on September 28, 1988.  The mandate was issued on September 29,1988.  A Petition for Writ of Certiorari was filed on October 14, 1988 and granted as to the issues presented in this appeal on December21, 1988.
  

Argument

I. Evidence which could have exculpated Mrs. Craig or created a reasonable doubt of her guilt was withheld by the State and state evidence was material and exculpatory.
  

Essentially Mrs. Craig was convicted of two things: (1) Sticking five-year old Brooke Etze with thumbtacks on her hands and arms, leaving no marks observed by anyone and no permanent marks for the jury to observe; and (2) inserting a stick in Brooke Etze's vagina causing it to be abnormally large and leaving a scar consistent with such insertion.  To win she had to discredit Brooke and explain the vaginal enlargement and scar.

On July 29, 1987, Sandra Craig, pursuant to Rule 4-263 and other authority, subpoenaed and moved to compel the production of certain information.  Specifically, she requested (1) the notes and records of the therapists who treated the children who testified in the case of State v. Sandra Craig, Indictment No.15625, including Mary Burke's therapy notes on Brooke Etze, Jessie Sue Smith and Justin Peeples; and Dr. Gladys Sweeney's therapy notes on Drew Woodbury; (2) the Health Department's (HD) investigatory file on all the children; (3) the Department of Social Services' (DSS) investigatory file on the children, and (4) the Sexual Assault Centers' (SAC) file on all the children.  Pursuant to those subpoenas and following a series of hearings on the matter, present counsel for Sandra Craig received copies of this material over the State's objection.  Fred Kolodner and the prosecutors confirmed at the hearing on the Motion for New Trial that Kolodner had neither seen or received this information from anyone.

The material revealed a wealth of information, including:

(1) The DSS Intake Summary Report dated August 19, 1986, written by Kathy McKone, Head of the Protective Services Division of the Department of Social Services (DSS), indicates she received information from Mary Burke that Brooke Etze had identified a "Roger" as the perpetrator of the abuse.  The Intake Summary documents that "fantasy and reality are mixed up for this child" (referring to Brooke Etze).  In this very first DSS written report on the child abuse allegation regarding Brooke Etze, Ms. McKone's summary states that the child told Ms. Burke that a "Roger" touched her with a stick in describing the abuse.  On August 11, 1987, at the hearing for the Motion for New Trial, Mary Burke testified that the written statement about Brooke's difficulty differentiating between reality and fantasy was an accurate assessment of her opinion of Brooke at that time.  Ms. McKone's notes themselves state that a copy of her entire report was sent to the Howard County Police Department in the person of Officer Beth Healy on August 27, 1986.

(2) A handwritten note addressed to Fred Levi of DSS from Mary Burke attached to a copy of Dr. Shubin 's report of his medical exam of Brooke Etze dated August 29, 1986) relates that "Brooke identified Mika as the perpetrator to Dr. Shubin."  Mary Burke identified the handwritten note as one that she had written.  Mary Burke also testified that Brooke's parents told her that Brooke had identified Mika as the perpetrator to Dr. Shubin.

(3) Mary Burke's notes of Brooke Etze's January 8, 1987 therapy session indicate and her testimony in the Motion for New Trial Hearings established that Assistant State's Attorney Kate O'Donnell was present at this session when Brooke's mother told Ms. Burke that Brooke said Jamal Craig inserted his penis into her anus and vagina.

(4) Mary Burke's January 15, 1987 therapy notes state that Brooke's father said that Brooke said that Jamal Craig touched her privates with his hand on the playground and that Mrs. Craig was present.  The notes also indicate that Brooke's definition of doing bad things would be doing jumping jacks.  Ms. Burke's notes indicate that Kate O'Donnell was present during the therapy session.

(5) Fred Levi's (DSS) notes on Mary Burke's therapy session with Brooke Etze (also attended by Officer Beth Healy of the Howard County Police Department) on September11, 1986 show that Brooke was asked the question "Did Mrs. C. hurt you in your private parts?  Brooke answered ... yes — she sometimes hit us "on the arm."  Later in the same session, Brooke said "I don't remember how they hurt my private parts."  Brooke's identifying her arm and not her vagina as her "private parts" was never revealed to Mrs. Craig, nor was Brooke's description of the injury as being inflicted by Mrs. Craig's hand and not by a stick as Brooke testified at trial.

(6) Mary Burke's notes of Brooke Etze's August 18, 1986 therapy session indicate that Brooke told her that "Stacy" and "Amy Yeager" both touched her on her private parts.  The notes also indicate that Brooke used the term "down there" and not "private parts" to indicate her crotch area and that Brooke said that Ms. Craig told her that touching under clothing was not okay after Brooke reported being touched by another child.

(7) Mary Burke's therapy notes revealed that ASA Kate O'Donnell attended 11 or more therapy sessions with Brooke Etze.  Mrs. O'Donnell testified that she attended dozens of sessions with Brooke Etze, Jessie Sue Smith, Justin Peeples and Drew Woodbury.

(8) Ms. Burke's notes of the January 8, 1987 therapy session, attended by Ms. O'Donnell, indicated that Mrs. Etze told Ms. Burke that Brooke Etze had said that Jamal inserted his penis into her anus and vagina.  In her testimony on August 11, 1987, Ms. O'Donnell admitted that she knew that Brooke had made allegations about Jamal but she explained that she scrupulously avoided asking Brooke about any other possible offender.  Jamal Craig has never been charged with any offense involving sexual injury to Brooke Etze.  Mrs. Craig never knew of these accusations against Jamal which could have been presented as an equally probable explanation for Brooke's vaginal injury.  The State knew of those accusations but did not disclose them to Mrs. Craig.

(9) Ms. Burke's therapy notes of September 11, 1986 note that Brooke Etze said that children brought sticks to school and put them on the chairs, and "maybe that is how she (Brooke) got hurt."

(10) Ms. Burke's therapy notes of January 15, 1987 indicate that Brooke's father, Tony Etze, told Ms. Burke that Brooke said that Jamal touched her "privates with his hand.  The handwritten note was identified by Mary Burke in her testimony on August 11,1987, in the Motion for New Trial hearings as given to her by the father of Brooke Etze.  The handwritten note indicates that Brooke said that Jamal hurt her in her "privates" with his hands.  Mrs. Craig never knew of these accusations against Jamal which could have been presented as an equally probable explanation for Brook's vaginal injury.

(11) Ms. Burke's therapy notes of the September 26, 1986 session state that her impression is one of doubt as to whether Brooke Etze's statements about other children being present (when the alleged abuse occurred) are accurate. This and other independent evidence undermining Brooke's credibility was never disclosed to Mrs. Craig.

(12) Ms. Burke's therapy notes of the October 9, 1986 session indicate that when Brooke Etze was asked to demonstrate with dolls what happened, she selected Stacy, Shannon and Mrs. Craig dolls and said "that's what was needed for part 1, and for parts 2 and 3 we need Jamal."  The notes indicate that Jamal, Stacy and Shannon, or any one of them, may well have caused the injury for which Mrs. Craig was convicted.

(13) A transcript of a taped conversation between Brooke Etze and her mother, Kristen, on September 6, 1986 revealed that Brooke said that other kids bit other kids and that she got bitten (by other kids) on the private parts on her vagina.  Brooke said that Mrs. Craig hit her in the private parts with a rock after being questioned by her mother about a stick, and insisted that it was a rock.  Brooke's testimony at trial was that Mrs. Craig injured her with a stick.

(14) Ms. Burke's therapy notes on Brooke Etze and Kris Etze's (Brooke's mother) notes of September 5, 1986 indicate that Brooke said "Chris," a boy at school, bit her on her "privates."

(15) Ms. Burke's notes document that on June 24, 1987, she received a telephone call from Tony Etze who told her that when he and Brooke were at the City Fair, they saw Michael (Ms. Craig's 42 year-old husband) and Zena Craig (her 17-year-old daughter) at a table and that Brooke, who appeared to recognize them, grabbed her stomach and doubled over.  The family then left immediately.  Ms. Burke's June 29, 1987 therapy notes indicate that Brooke mistakenly believed that Michael and Zena were Jamal and Mrs. Craig even though the latter were not present.  When questioned by Mrs. Burke, Brooke did not refer to Michael or Zena Craig but to Jamal and Mrs. Craig.  The notes also reveal that Brooke stated that she got a nosebleed and didn't mention the stomach cramps that her father had reported as her reaction to seeing Michael and Zena Craig.  This misidentification by Brooke was never revealed to Mrs. Craig.

(16) Ms. Burke's therapy notes of the April 9, 1987 session indicate that Tony Etze told Ms. Burke that Brooke told him that she still needs to tell Ms. Burke about Jamal.  Ms. Burke's therapy notes of the April 30, 1987 joint session with Kate O'Donnell indicate that Ms. O'Donnell spoke to Brooke about waiting to discuss Jamal until after Brooke participates in the trial involving Justin Peeples.  Again, Ms. O'Donnell knew of Brooke's accusation that Jamal was responsible for the vaginal injury to Brooke and did not disclose that material and exculpatory information to Mrs. Craig.

(17) Ms. Burke's therapy notes of May 7, 1987 indicate that Ms. Burke discussed with Brooke about having waited to tell of any remaining abuses and told Brooke that the time to tell was now.  Brooke stated "she doesn't remember."  This information relevant to Brooke's competency and credibility was withheld from Mrs. Craig.

(18) Ms. Burke's therapy notes of December 11, 1986 state that Mr. Etze told Ms. Burke that Brooke's irregular breathing patterns began the day that she was told that Kate O'Donnell would be coming to visit her to talk about court.  From that date through the present, Ms. Burke's notes indicate that the breathing disorder Brooke Etze experienced persisted.  The notes also indicate that Kate O'Donnell was present.

(19) An undated notation in Mary Burke's therapy notes on Justin Peeples says that he denied that anyone touched him at Craig School in a way he didn't like or which was bad.  Justin's denial that there was any bad touching at Craig's school was not disclosed to Mrs. Craig, and Justin's identification of an "Uncle Woody" and a "Chris" as adults who scared him likewise was not disclosed.

(20) The July 22, 1986 SAC intake record on Justin Peeples (page 2) reveals that he explained he had come to speak of Mrs. Craig but he didn't have anything to say.  Justin was asked where Mrs. Craig had touched him.  He pointed to his ears, not to his anus as he testified at trial.

(21) Mary Burke's notes of the August 11, 1986 therapy session with Justin Peeples indicated that Justin didn't know if there was a sofa at the Craig School, but that there was a bed.  Justin denied being on the bed with Mrs. Craig.

(22) The January 15, 1987 notes of a therapy session with Justin Peeples which was a joint session with Kate O'Donnell, indicate that Ms. O'Donnell asked Justin the question, "have you been telling Mary the truth?"  Justin responded, "I only tell the judge the truth, not regular girls," implying that he had not been telling Mary or Kate O'Donnell the truth.

(23) Mary Burke's notes of the September 18, 1986 therapy session with Justin Peeples indicate "that Justin was just eating his snack when Mrs. Craig poked him with a screwdriver in the shoulder and the elbow."  Justin Peeples' trial testimony was that Mrs. Craig inserted the screwdriver into his anus.  This major inconsistency was not revealed to Mrs. Craig.

(24) The February 19, 1987 notes of a therapy session with Justin Peeples note that Mrs. Peeples told Mary Burke that Elliott, Justin's brother, who never attended the Craig Country Pre-School, has also stated that someone put a screwdriver in his penis.

(25) Mary Burke's notes of the September 24, 1986 therapy session with Jessie Sue Smith indicate that Jessie Sue Smith spoke about a "bad boy" and described digital penetration every day and penetration by a stick.  Ms. Burke's notes indicate that Officer Bob Bates of the Howard County Police Department was present and did in fact know of Jessie Sue Smith's allegations about the bad boy being Jamal.  Jessie Sue Smith's trial testimony was that Mrs. Craig touched her "box" (vagina) and her "butt" (anus) with a prickly stick and with her hand.

(26) The August 18, 1986 notes of Mary Burke's therapy session with Jessie Sue Smith indicate that Jessie held a conversation with her mother about what her mother was reading.  Jessie asked, "Was it the bad boy?"  Jessie's mother said, "No, the bad boy doesn't kill people."  Jessie then said, "He (the bad boy) kills rabbits."  One of the acts that Mrs. Craig was accused and convicted of was of killing the rabbit.  Testimony at trial was that there was only one rabbit at the Craig Country Pre-School.

(27) Mary Burke's notes of Jessie Sue Smith's September 3, 1986 session indicate that Jessie Sue Smith had a problem with masturbation and that Jessie Sue remembered that "Kevin" had to hurt her and punched her in the face.  When questioned, she did not remember anything about a rabbit.

(28) Mary Burke's undated therapy notes on Jessie Sue Smith noted child psychologist Dr. John Hayes' diagnosis of sibling rivalry as being the cause of Jessie Sue Smith's behavior.  The SAC intake record indicates that Jessie Sue Smith had previously been seen by Dr. John Hayes.  The record also indicates that the mother was concerned that Jessie Sue always came back with changed clothing after playing at a certain playmate's house and that the reason given would be that she had had an "accident."  The mother indicated that Jessie never had "accidents."

(29) The June19, 1986 notes of the therapy session with Jessie Sue Smith reveal that Jessie said that "Jamal put his penis in her mouth and bottom."  The injury to Jessie Sue Smith which was presented to Mrs. Craig's jury could have been explained by Jamal's putting his penis in her bottom.

(30) Mary Burke's December 9, 1986 notes of the therapy session with Jessie Sue Smith indicate, and Kate O'Donnell's testimony affirmed, that ASA Kate O'Donnell was present at this session where Jessie Sue Smith stated that the "bad boy stuck a stick in her butt" and that the "bad boy" was identified as Jamal.  Kate O'Donnell never disclosed this information to Mrs. Craig

(31) Mary Burke's notes of Jessie Sue Smith's September 12, 1986 therapy session indicate that Jessie Sue Smith, when asked about what happened at Craig's school, stated that she didn't remember.  This information, relevant to Jessie Sue's competency and credibility, was withheld from Mrs. Craig.

(32) Mary Burke's April 3, 1986 note of the conversation with Bernadette Smith states that Jessie Sue said that she had a friend who "chomp" his penis but Jessie could not remember the friend's name.  The records and reports from the Howard County Department of Social Services, the Howard County Health Department, the Howard County Sexual Assault Center and from various therapists, psychologists and psychiatrists revealed similar evidence about the other children who also testified against Ms. Craig.

Unfortunately, the trial judge at the Motion for New Trial Hearing did not permit present counsel to develop this evidence further and abruptly and arbitrarily ended the post-trial hearing in the middle of present counsel's examination of Fred Kolodner, Mrs. Craig's trial counsel, because the court's personal schedule did not permit more time to be devoted to the hearing.  Ignoring present counsel's protests that he had many more questions to ask Mr. Kolodner in numerous undeveloped areas, that he had many additional witnesses, and that he had more evidence to introduce, the trial judge instead forced present counsel to make an offer of proof.

In sum, this startling new evidence showed that (1) the children had blamed others, including Ms. Craig's daughter Mika, her son Jamal, "Roger," and others, for the vaginal and anal injuries blamed on Ms. Craig at trial; (2) Mary Burke had opined that Brooke Etze whose credibility had not been impeached at trial, did not know truth from fantasy; (3) the physical evidence of vaginal scarring could have been caused by other children or adults, including Jamal, Mika or Roger, or by self-infliction; (4) the children had made statements that had undermined their credibility (which had not been impeached at trial) and their competence (which had not been challenged at trial) to remember, to perceive and to tell the difference between truth and falsity; (5) the children had made significant inconsistent statements; and (6) Brooke Etze had previously mistaken someone else for Mrs. Craig.

Mrs. Craig established at the hearing on her Motion for New Trial that the evidence was within the knowledge of the State (officer Bates, officer Healy, Assistant State's Attorney Kate O'Donnell) and those who reported directly to the State (Mary Burke, Fred Levi, Dorothy Ernst, Kathy McKone).  And the Court of Special Appeals held that this evidence was clearly within the requirements of Rule 4-263 and that the State inexcusably and improperly withheld this evidence from Ms. Craig before and during trial.  However, the court incorrectly characterized this evidence as "marginally exculpatory" and incorrectly concluded that "none of it directly exculpates Ms. Craig."  Craig v. State, 76 Md. App. 250, 267 (1988) (E. 15).  Instead of acknowledging the six categories in which the withheld evidence fell, the Court of Special Appeals erroneously concluded that the evidence "seem(ed) to fall into two categories — complaints by Brooke and some of the other children of abuse by persons other than Ms. Craig, and impressions of Ms. Burke of Brooke's credibility."

It should be noted that the Court of Special Appeals criticized present counsel for not calling certain witnesses at the Motion for New Trial Hearings to further develop the materiality of the evidence discovered by post trial subpoena.  The Court evidently overlooked the fact that Judge Kane arbitrarily ended Mrs. Craig's presentation of evidence at the Motion for New Trial Hearings in the middle of present counsel's examination of Mr. Kolodner, solely on the ground that continuing the hearing would interfere with the court's personal schedule, and did not permit present counsel to complete his examination of Mr. Kolodner or of Ms. O'Donnell, or to call any further witnesses on the Motion.

The evidence was clearly exculpatory and material.  Short of a belief in the Perry Mason philosophy which defines exculpatory as statements by a third party admitting the crime, this evidence was as exculpatory as it ever gets.  One could hardly suggest that such quantity of independent evidence of other equally probable sources of Brooke's injury could not have affected the outcome of the trial.  A skillful defense lawyer would have been able to utilize this evidence to create a reasonable doubt that Mrs. Craig was guilty of the alleged abusive acts.  The defense could have successfully argued that Jamal's, "Roger's," Mika's, Amy Yeager's or others' behavior could have explained Brooke Etze's enlarged vagina and the internal scar instead of having no independently supported explanation, the position in which Mrs. Craig found herself at trial because this evidence was improperly withheld.

The reports that Brooke identified "Roger" as the perpetrator of the abuse, that "Brooke identified Mika as the perpetrator to Dr. Shubin," that "Stacy" and "Amy Yeager" both touched her with a stick on her private parts, that the children brought sticks to school and put them on the chairs and "maybe that is how she got hurt," that she got bitten by Chris and other kids on the private parts on her vagina each could have independently explained how Brooke's vagina was injured and offered an alternative, not an additional, explanation to the State's contention that Brooke's injury was caused by Ms. Craig.  The argument is obvious and a reasonable jury could have accepted it.

A reasonable jury could have chosen to believe that the reason that the statement that "Brooke identified Mika as the perpetrator to Dr. Shubin" appeared in Mary Burke's handwritten note to DSS worker Fred Levi was because that was what Brooke actually said to Dr. Shubin.  Likewise, a jury could have reasonably concluded that "Roger," rather than Ms. Craig, was the perpetrator of the abuse, a characterization adopted at that time by the very agency investigating the allegations by Brooke.

The jury could have believed Ms. Burke's observation to DSS worker Kathy McKone that "reality and fantasy are mixed up for this child (Brooke)," or her testimony at the hearing on the motion for new trial that this statement was an accurate assessment of her opinion of Brooke at the time Brooke made these allegations.  The jury could have reasonably chosen to infer from these observations, affirmed subsequently by Ms. Burke, that Brooke was so impaired during the time frame of her accusations about Mrs. Craig and the alleged offense that she could not separate reality from fantasy and thus was not credible.

As to DSS worker Fred Levi's notes that Brooke was asked the question "Did Mrs. C. hurt you in your private parts?" and her answer that "Yes — she sometime hit us on the arm', and that "I don't remember how they hurt my private parts" (identifying her arm as her "private parts"), it is obvious that a reasonable jury could have concluded that if Brooke did not know that "private parts" were her vagina, her subsequent statements about what Mrs. Craig did to her private parts — meaning "vagina" — were not believable.

A reasonable jury could have believed Mary Burke's testimony that Brooke told her mother that Mrs. Craig hit her with a rock, not a stick, which would then lead them to the obvious and reasonable conclusion that her allegations at trial about any abuse by Mrs. Craig were unbelievable.

A reasonable jury could have concluded that Brooke's misidentification of Mrs. Craig's 42 year old husband, Michael, and her 17-year-old daughter, Zena, at the City Fair, as Jamal, 15, and Mrs. Craig, 40, was further evidence of her inability to separate reality from fantasy.

A reasonable jury could have considered all of this evidence in the aggregate and drawn the reasonable conclusion that when lumped together, it established more than a reasonable doubt of guilt.

But the jury deciding Mrs. Craig's fate was never allowed to hear and consider this very significant material and exculpatory evidence because the State unlawfully withheld it from Mrs. Craig.

Indeed, the State exploited the absence of this evidence in closing argument. In his closing argument A. Gallatin Warfield, having exalted the absence of this very type of exculpatory evidence, the same evidence the state withheld from Mrs. Craig, hammered to the jury:

... I would submit to you that the framework of this entire case is the fact that there is nothing, absolutely nothing in this case to question the credibility of the child (Brook Etze).  (T)o the contrary, the evidence is absolutely overwhelming in support of the truth and credibility of what the child is telling you.  Overwhelming.

And further,

... The important thing is what the child told you and the believability and the credibility and the truth, the truth of what the child is saying.

... There is nothing, absolutely nothing in this child's testimony to question her credibility.  Absolutely nothing, nothing on cross-examination and I dare say, nothing in the entire trial we have heard to question what this child says.  We have heard lots of other things about lots of other subjects, but nothing about-nothing to question this child's credibility and that is what this case is all about.

... You have to deal with that, this child has no reason on the face of this earth to tell you anything and there has been nothing in this trial to establish that the child hasn't told you the absolute truth, and she clearly knows the difference between the truth and a lie.

So it is not that she is coming here for the first time and she is just going to tell her and that is it, she has a history of telling what happened and it is consistent throughout, it is not that she told Mary Burke one thing and then she came in and told you something completely different.  You can use that information to support the credibility that the child is telling a consistent, consistent account of what occurred to her.  She told her mother ...

And contrary to what the withheld evidence disclosed, he presented Brooke's identification of Mrs. Craig as unassailable to the jury:

... she described Mrs. Craig.  Mrs. Craig was a black lady, she had black curly hair, she wore eye stuff, remember that, remember, she had eye stuff.  She had cheek stuff, she said, on her face. She used outliner for her lips, she later, by the way identified Mrs. Craig in a photograph, so there is no mistake, whatsoever, I mean let's not beat around the bush here, there should be no mistake whatsoever, none, that this is the person that she is referring to.  I mean, that is — that should be abundantly clear, but she did identify, this is the person that she knows as Mrs. Craig, clearly by identification in the photograph, although she didn't, obviously, under the videotape procedure come into court and point her out.  She is clearly very, very clearly identified Mrs. Craig as the person, the defendant, that she is referring to when she talks about Mrs. Craig.

And in her closing, Kate O'Donnell said:

... Mary Burke knows what happened in those therapy sessions and what she described as eventually happening, that Brooke was like a dam breaking, and information was disclosed and she described as I have said, what Brooke said as consistently as Brooke has said it today ...

All of this material and exculpatory evidence was withheld from Mrs. Craig by the State and by those who directly reported to the State and then, as shown above, shamelessly utilized by the State to buttress its credibility arguments!  Certain evidence was directly within the State's knowledge and control.  Officer Beth Healy of the Howard County Police Department was sent a copy of the intake summary as required by law completed on August 19, 1986 by Kathy McKone of the Department of Social Services, which contained the information related to Ms. McKone by Mary Burke that "Roger" was the perpetrator and that Brooke had difficulty distinguishing between fantasy and reality.  The evidence reveals that members of the Howard County Police Department, DSS, and the State's Attorneys Office for Howard County attended numerous therapy sessions with Brooke Etze, Jessie Sue Smith, Justin Peeples and Drew Woodbury.  Assistant State's Attorney Kate O'Donnell participated in dozens of Mary Burke's therapy sessions with these children and in Dr. Gladys Sweeney's therapy sessions with Drew Woodbury.  Ms. O'Donnell's testimony of August 11, 1987 and July 20, 1987 and Ms. Burke's testimony of August 11, 1987 and August 24, 1987 established that there was constant information sharing between the State and the therapists and that the therapists assisted Ms. O'Donnell in preparing the children to testify.  Assistant State's Attorney Kate O'Donnell in fact attended therapy sessions with Brooke Etze where both parents revealed to Mary Burke that Brooke said that Jamal had inserted his penis into her (Brooke's) vagina and anus and inserted his hand into her vagina.  Ms. O'Donnell testified on August 11, 1987 that she scrupulously avoided any inquiry as to any other possible offender though she knew that Brooke Etze "had something to tell her about another offender."  Obviously, Ms. O'Donnell's testimony revealed her actual knowledge while she was prosecuting Mrs. Craig that other persons may have been responsible for causing Brooke Etze's vaginal injury and the injuries of Jessie Sue Smith, Drew Woodbury and Justin Peeples.

There was a written agreement between the Howard County Department of Social Services, the Howard County Police Department and the State's Attorney for Howard County to share information relating to the investigation of child abuse cases.  Additionally, on June 16, 1987 a multidisciplinary team comprised of members of the State's Attorneys Office, the Police Department, the Health Department, and the Department of Social Services was formed to facilitate the investigation of this case.  The testimony of Fred Levi and Dorothy Ernst clearly established that members of the team believed it was their duty to report regularly to the State's Attorneys office and in fact they did report regularly to the State's Attorney's Office.  All of the parents were told that the information they and their children shared with the SAC therapists would be shared with the State's Attorneys office.  Waivers signed by Kristin Etze, Patricia Peeples and other parents, called a "memorandum of understanding," with SAC indicated that they consented to disclosure of all information obtained from the children to DSS and the police during the investigation.

Finally, the therapists, social workers, psychiatrists, and psychologists all communicated with the Police Department and the State's Attorneys office on a regular basis.

Rule 4-263 is clear that the obligation to disclose Brady material applies to persons who regularly report to the State's Attorney or report on a particular case.  Such was the situation here.  The prosecutors claim that they had no personal knowledge of most of the documentary information is legally irrelevant.

The State's attempt to avoid its obligation by claiming that Kate O'Donnell and Gallatin Warfield had no direct knowledge of the documents, is asking this Court to avoid the clear mandate of Rule 4-263.

Therefore, it is clear that under both state law and state and federal constitutional principles, the State, as it is broadly defined in Rule 4-263, had the duty to disclose this material and exculpatory information.  To Appellant's grievous prejudice, it did not.

Since Giglio v. United States, 405 U.S. 150(1972), the Supreme Court has extended the application of Brady v. Maryland, 373 U.S. 83 (1963) to impeachment evidence.  In United States v. Bagley, 473 U.S. 667 (1985), this doctrine was strengthened when the Supreme Court held that regardless of whether a defendant makes a general request, a specific request, or no request at all, evidence in order to be material must present "a reasonable probability that, had ... (it) been disclosed to the defense, the result of the proceeding would have been different.  A 'reasonable probability' is a probability sufficient to undermine confidence in the outcome."

In Giglio, the Supreme Court said "when the 'reliability of a given witness may well be determinative of guilt or innocence,' nondisclosure of evidence affecting credibility falls within this general rule," 405 U.S. at 154.  The state's case against Mrs. Craig rested entirely on Brooke Etze's credibility as even the Court of Special Appeals recognized.

Utilizing these standards, courts across the country have reversed stronger cases than the one at bar where the evidence subsequently discovered was not as powerful.  For example, in Sturgill v. State, 497 N.E.2d 1070 (Ind. App. 1986), defendant's conviction of sexual abuse of a 17-year-old stepdaughter was reversed because the state did not disclose statutorily protective and confidential pretrial statements of the victim to the Welfare Department about the abuse.  The Court of Appeals of Indiana, First District, said:

(W)e hold that the trial court abused its discretion.  Although a portion of Sturgill's request for discovery was very general, he specifically requested 'statements of defendant's step-daughter' made to the Welfare Department.  Such statements could have contradicted the girl's testimony at trial and statements given to police.  Even though the girl apparently never recanted her story, inconsistencies certainly could have affected her credibility while her stories to welfare workers may have constituted cumulative evidence, that evidence might have influenced the trier of facts so as to render him not guilty.  As such, the evidence sought was material. 497 N.E.2d at 1072.

In Commonwealth v. Ellison, 379 N.E.2d 560 (Mass. 1978), the Supreme Judicial Court of Massachusetts reversed defendant's conviction for felony murder where the primary witnesses against the defendant were two co-defendants because the prosecutor failed to disclose the co-defendant's confessions which did not mention defendant's participation in the crime.  The court said:

We observe here that the material may be within Brady although it is not absolutely destructive of the Commonwealth's case or highly demonstrative of the defendant's innocence.  The Brady obligation comprehends evidence which provides some significant aid to the defendant's case, whether it furnishes corroboration of the defendant's story, calls into question a material, although not indispensable, element of the prosecution's version of the events, or challenges the credibility of a key prosecution witness. 379 N.E.2d at 571.

In Patton v. State, 537 So.2d 886 (Ala. App. 1988), the Court of Criminal Appeals of Alabama reversed a defendant's conviction of attempted murder because the prosecutor failed to disclose an inadmissible anonymous phone call from a purported eyewitness to a police officer (of which the prosecutor was unaware) that a security guard rather than the defendant was the shooter.  The court said:

Had this anonymous telephone call been disclosed to appellant's counsel before trial, his use of the information contained in such call very likely would have been sufficient to create a reasonable doubt in the juror's minds.  Thus, we conclude that the withheld and, therefore, suppressed evidence was material to this cause. 537 So.2d at 891.

The state had asserted that the information contained in the anonymous call was not material because it would have been inadmissible at trial.  The Court responded:

However, the Alabama Supreme Court, in addressing admissibility of suppressed evidence under Brady, has held that 'the crucial question is the significance of the suppressed information upon the question of the (defendant's) guilt or innocence' and not the admissibility of the suppressed evidence.  (Citations omitted.)  Thus, this Court concludes that the fact that the information contained in the anonymous call to Sergeant Ballard may have been inadmissible at trial is irrelevant under the Brady test. 537 So.2d at 891.

It should be noted that the Alabama Court treated the suppression of this evidence by the policemen as a deliberate suppression by the prosecution even though the prosecutor had no personal knowledge of its existence:

First, it is clear that the prosecution here suppressed the evidence concerning the anonymous phone call as to the Security Guard, Davis.  Although the prosecutor did not know about this telephone call, the knowledge of Sergeant Ballard is imputed to the prosecutor. 537 So.2d at 889.

In People v. Wallert, 469 N.Y.S.2d 722 (N.Y. App. 1983), defendant's conviction for rape was reversed where the prosecutor elicited from the defendant on cross-examination that he had known of no reason why the complainant would lie, argued in summation that the complainant had no motive to lie, but concealed knowledge that the complainant had prepared a civil suit seeking $18,000,000 in damages which was served on the defendant two days after the conviction.

In State v. Rosiere, 488 So.2d 965 (La. 1986), a policeman's conviction for homicide was reversed because the state failed to disclose the existence of witnesses who would have corroborated his story that he shot the victim because the victim fired at him first.

In People v. Velez, 504 N.Y.S.2d 404 (N.Y. App. 1986), defendant's burglary conviction was reversed because the state failed to disclose that the sole witness against the defendant, who caught the defendant in the act of escaping from a burglary and tackled him on the street as he fled, believed that the defendant had robbed his wife in retaliation for a role as a complaining witness against him.  After rejecting the trial judge's view that this was collateral evidence the New York Supreme Court, Appellate Division, said:

... (W)holly apart from the Brady material, the people produced a strong case against defendant, nonetheless, it cannot he gainsaid that its compelling character depends almost entirely upon the jury's acceptance of Gonzalez's testimony at full value. Therefore, the jury was entitled to hear any evidence which would assist them in a valid assessment of this witness's credibility.  We are satisfied that fairness to the defendant required that he be permitted to submit evidence of Gonzalez's possibly overriding animosity against him, and to show that this witness's testimony might have been motivated, or at least strongly affected by, a desire either for vengeance or to protect his wife from possible further harm.  Potential bias of that magnitude cannot be viewed as a 'collateral' matter. 504 N.Y.S.2d at 406-407.

In Marlowe v. City of Tulsa, 564 P.2d. 243 (Okl. App. 1977), the Oklahoma Court of Criminal Appeals reversed defendant's conspiracy conviction despite evidence that at least sixteen narcotics-related phone calls were made between the defendant and a police officer which were overheard by still another police officer at precise dates and times, because the state failed to provide pen register records which could have shown either that the calls were not made at all or were not made at the specified dates and times.

In State v. Clobes, 417 N.W.2d 735 (Minn. App. 1988), the Court of Appeals of Minnesota reversed defendant's assault conviction because the prosecution failed to tell the defendant that a state's witness who was not an eyewitness had an unsubstantiated belief that the victim committed perjury by understating his use of steroids and concealing that his moods changed when he used them.  The court believed that this evidence, although inadmissible, might have led to evidence which could have bolstered the defendant's defense of self-defense.

In People v. Smith, 512 N.Y.S.2d 244 (N.Y. App. 1987), the New York Supreme Court, Appellate Division, reversed defendant's convictions of robbery and sodomy because of the prosecutor's failure to disclose a possible police conspiracy to falsely focus the investigation on the defendant.  The court said:

At the very least, the defendant was deprived of the opportunity to make an informed decision regarding the trial strategy that would have been in his best interests to pursue, which must be considered in this case to have deprived him of a fair trial. 512 N.Y.S2d. at 245-246.

In Hayes v. State, 711 S.W.2d 879 (Mo. 1986), the Supreme Court of Missouri, sitting en banc, reversed a defendant's conviction of manslaughter because of the prosecution's failure to tell defendant about a deal with a key witness.  The Court said:

The withheld evidence is certainly of a kind which could have affected the result of the trial.  No certain prediction is possible about the result of the trial, but the Bagley rule uses two qualifying terms, 'reasonable' and 'might.' 711 S.W. 2d. at 879.

In Burton v. State, 754 P.2d 1215 (Okl. App. 1988), the Oklahoma Court of Criminal Appeals reversed defendant's manslaughter conviction where her claim was that she shot her former husband in self-defense.  Her defense was that he had a drug problem when he was acting violently on the day of the shooting.  The prosecutor countered by showing that the victim had not been found with drugs, that there were no traces of drugs in his body and that he was not violent by nature.  The trial judge's denial of a Motion for New Trial was reversed because defense counsel became aware after trial that marijuana metabolites and Valium traces were found in the victim's body samples, and two Valium pills were found in the victim's possession at the hospital.

In People v. Cwilka, 414 N.Y.S.2d 102 (N.Y. 1979) the Court of Appeals of New York reversed defendant's first convictions of first degree burglary and possession of a dangerous instrument because of the failure by the prosecutor to disclose a letter to the parole board recommending clemency for its star witness's cooperation against the defendant after the witness testified at trial that no deals had been made.  Even though there was no evidence that a deal had in fact had been made with the witness, the Court of Appeals of New York said:

The materials sought by defense counsel here — correspondence between the office of the District Attorney and the Parole Board relating to the witness Tommy Cox — were of such a nature that the jury could have found that, despite the witness's protestations to the contrary, there was indeed a tacit understanding between the witness and the prosecution, or at least so the witness hoped.  We have on a previous occasion noted that the existence of such an agreement 'might be a strong factor in the minds of the jurors in assessing the witness's credibility and in evaluating the worth of his testimony.' (Citations omitted.)

Consequently, in view of the significance which the jury might have attached to this evidence and in keeping with the principles enunciated in Brady ... and its progeny, we hold that the non-disclosure of this evidence denied the defendant his right to a fair trial (emphasis added). 414 N.Y.S.2d at 105-106.

In State v. Dressel, 729 P.2d 1245 (Kan. App. 1986), the Kansas Court of Criminal Appeals reversed the defendant's convictions of grand larceny of soybeans because the prosecution failed to disclose records and tests which might have supported the defendant's contentions that the victim's corporation was unable to prove loss or the proper functioning of equipment designed to detect theft.

In Boshears v. State, 511 So.2d 721 (Fla. App. 1987), the District Court of Appeals of Florida, First District, reversed defendant's convictions of two counts of sexual battery upon a child (for which he got two concurrent life sentences) on the ground that the prosecutor failed to disclose the medical report of the examining physician containing a statement by the victim that she had been penetrated for almost 15 minutes despite the results of the medical examination revealing that there had been no penetration of the vagina and no evidence of trauma that would indicate damage to the vagina.

In Ex parte Kimberly, 463 So.2d 1109 (Ala. 1984), the Supreme Court of Alabama reversed defendant's conviction of second degree robbery on the ground that the prosecutor failed to disclose that a co-defendant who testified against the defendant told him before trial that defendant was not in the City at the time the robbery occurred there. The Supreme Court of Alabama said:

Even though the trial court did express doubts about the inadmissibility and trustworthiness of Whatley's statement, such doubts may not prevent the granting of a new trial with the non disclosed evidence as material, having a potential effect on the outcome of the trial. (Citation omitted.)

The record clearly shows that the trial court properly disregarded the unreliability of Whatley's statement and granted Kimberly a new trial.  It was correct in doing so. 463 So.2d. at 1112.

In State v. Wyche, 518 A.2d 907 (R.I. 1986), the Supreme Court of Rhode Island reversed defendant's conviction of rape because the prosecutor withheld a blood alcohol report which showed that the victim had a blood alcohol level of .208, despite other evidence which was adduced at trial which showed the victim's undisputed drunken condition.

Thus, Mrs. Craig's conviction should be reversed because under the overwhelming weight of authority, evidence of the kind suppressed in this case is both material and would undermine confidence in her conviction.
  

Conclusion

Wherefore, for all these reasons, Mrs. Craig's convictions should be reversed.