Court of Appeals of Maryland
Maryland v. Craig
September Term, 1988
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,
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
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
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.
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,
(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
(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
(7) Mary Burke's therapy notes revealed that ASA Kate
O'Donnell attended 11 or more therapy sessions with Brooke Etze.
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)
(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
(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
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
(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.
(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
(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
(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
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.
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).
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
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
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.
... 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
... 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
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
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
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
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
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.
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
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.)
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
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
a strong factor in the minds of the jurors in assessing the witness's
credibility and in evaluating the worth of his testimony.' (Citations
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
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
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.
Wherefore, for all these reasons, Mrs. Craig's
convictions should be reversed.
* William H. Murphy, Jr. is an
Attorney at Law and can be reached at
1007 N. Calvert Street, Baltimore, Maryland 21202. [Back]