Smith v. State

Jonathan D. Smith v. State of Maryland, No. 31, September Term, 2022 DUE PROCESS – REMEDY – DISMISSAL – RETRIAL – Supreme Court of Maryland* held that, despite agreement of parties that only appropriate remedy is dismissal of charges, given that as result of conditional plea agreement, new trial ordered by Court did not take place and although conditional plea agreement entered into by parties contains proffer with respect to evidence, it was not possible for Court to assess with any confidence beyond speculation what evidence might have consisted of at retrial. Supreme Court, therefore, declined to address merits of Appellate Court of Maryland’s decision affirming Circuit Court for Talbot County’s denial of motion to dismiss. Supreme Court of Maryland vacated judgment of Appellate Court and remanded case to that Court with instructions to remand case to circuit court with instructions that circuit court vacate its denial of motion to dismiss. Petitioner shall be allowed, if he chooses, to withdraw his conditional Alford plea, thereby leaving parties in same position as they were before circuit court’s denial of Petitioner’s motion to dismiss and parties’ entry into conditional plea agreement.

As such, remand that Supreme Court ordered for retrial would remain in effect unless State elects, consistent with its position in Supreme Court, not to prosecute. * At the time that the petition for a writ of certiorari in this case was filed, the Supreme Court of Maryland was named the Court of Appeals of Maryland. At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. Circuit Court for Talbot County Case No. 20-K-00-006884 Argued: May 4, 2023 IN THE SUPREME COURT OF MARYLAND* No. 31 September Term, 2022 ______________________________________ JONATHAN D. SMITH v. STATE OF MARYLAND ______________________________________ Fader, C.J. Watts Hotten Biran Gould Eaves Wilner, Alan M.

(Senior Justice, Specially Assigned), JJ. ______________________________________ Opinion by Watts, J. Gould and Wilner, JJ., dissent. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Filed: June 20, 2023 2023-06-20 14:41-04:00 Gregory Hilton, Clerk *At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland. The name change took effect on December 14, 2022. In 2001, Jonathan D. Smith, Petitioner, was convicted of the first-degree murder of Adeline Wilford.

After unsuccessfully challenging his conviction on direct appeal and in post-conviction proceedings, Smith filed a petition for writ of actual innocence in the Circuit Court for Talbot County, which was denied. In 2020, however, this Court determined that the circuit court abused its discretion by using an incorrect legal standard in its denial of the petition and by failing to correctly assess the materiality of evidence. This Court remanded the case to the circuit court with instructions to grant the petition for writ of actual innocence and to conduct a new trial. In doing so, this Court noted that the State had an affirmative duty to disclose certain evidence to Smith under Brady v. Maryland, 373 U.S. 83 (1963), and had failed to do so prior to trial.

Before retrial in the circuit court, Smith filed a motion to dismiss the charges alleging due process and double jeopardy violations. Although the circuit court concluded that the State had failed to disclose potentially exculpatory evidence prior to trial, the circuit court denied the motion to dismiss, finding that the State’s failure did not satisfy the criteria for dismissal. After the circuit court’s denial of the motion to dismiss, Smith and the State entered into a plea agreement in which Smith was permitted to enter a conditional plea pursuant to Maryland Rule 4-242(d)1 and North Carolina v. Alford, 400 U.S. 25 (1970),2 to First Degree Felony Murder and Daytime Housebreaking in exchange for the State’s agreement to a suspended sentence and probation, i.e., a sentence of time served, as the appropriate sentence in the case. Under the terms of the plea agreement, Smith was permitted to not admit guilt and to preserve his right to appeal the circuit court’s denial of his motion to dismiss.

The parties agreed that Smith would withdraw his pending interlocutory appeal of the motion to dismiss before the Appellate Court of Maryland3 and that Smith could file a notice of appeal and pursue an appeal of the judgment and sentence imposed by the circuit court pursuant to the conditional Alford plea, including the circuit court’s denial of the motion to dismiss. The agreement was memorialized in an 18-page document titled “Agreement and Proffer Statement in Support of Conditional Alford Plea Under Md. Criminal Rule 4-242(d) Preserving Rights to Appeal Determination of Any Pre-trial 1 Maryland Rule 4-242(d) permits a defendant to enter a conditional guilty plea, “[w]ith the consent of the court and the State,” while allowing the defendant to “reserve the right to appeal one or more issues specified in the plea[.]” Md. Rule 4-242(d)(2). Any issue so reserved must have been “raised by and determined adversely to the defendant,” and its resolution “in the defendant’s favor would have been dispositive of the case.” Id. 2 Under Alford, a defendant can enter a guilty plea that contains a “protestation of innocence.” Bishop v. State, 417 Md. 1, 19-20 , 7 A.3d 1074, 1085 (2010) (cleaned up). With an Alford plea, a defendant maintains innocence but “agrees to a proffer of stipulated evidence or to an agreed statement of facts that provides a factual basis for a finding of guilt.” Franklin v. State, 470 Md. 154 , 168 n.1, 235 A.3d 1 , 8 n.1 (2020) (citation omitted); see also Md. Rule 4-242(c) (“The court may accept the plea of guilty even though the defendant does not admit guilt.”). 3 At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Special Appeals of Maryland to the Appellate Court of Maryland.

The name change took effect on December 14, 2022. -2- Motions to Date[,]” in which the parties agreed to a proffer of facts, and the State acknowledged that it had. The Appellate Court affirmed the circuit court’s denial of Smith’s motion to dismiss, and Smith filed a petition for writ of certiorari, which we granted. Before this Court, as it did in the Appellate Court, the State agrees with Smith that its conduct did not comport with principles of due process and that “the only appropriate remedy is dismissal of the charges.” Despite the agreement of the parties that the only remedy is dismissal of the charges, given that as a result of the conditional plea agreement, the new trial ordered by this Court did not take place and although the conditional plea agreement entered into by the parties contains a proffer with respect to the evidence, it is not possible for this Court to assess with any confidence beyond mere speculation what the evidence might have consisted of at retrial. As a result, it is not possible for this Court to meaningfully evaluate whether Smith has suffered irreparable prejudice for which dismissal of the charges is the only feasible remedy.

This Court, therefore, declines to address the merits of the Appellate Court’s decision affirming the circuit court’s denial of the motion to dismiss. Rather, we vacate the judgment of the Appellate Court and remand the case to that Court with instructions to remand the case to the Circuit Court for Talbot County with instructions that the circuit court vacate its denial of the motion to dismiss. Smith shall be allowed, if he chooses, to withdraw his conditional Alford plea, thereby leaving the parties in the same posture as they were before the circuit court’s denial of Smith’s motion to dismiss and the parties’ entry into the conditional plea agreement. As such, the remand -3- that this Court ordered for retrial in Faulkner v. State; Smith v. State, 468 Md. 418 , 227 A.3d 584 (2020),4 would remain in effect unless the State elects, consistent with its position in this Court, not to prosecute.

BACKGROUND In 2001, a jury found Smith guilty of the 1987 murder of Adeline Wilford and the burglary of her home.5 See Smith, 468 Md. at 425-426 , 227 A.3d at 588-89 . In an unreported opinion, the Appellate Court of Maryland remanded the case for a hearing on Smith’s motion for a new trial.6 See Jonathan D. Smith v. State of Maryland, No. 688, Sept. Term, 2001 (Md. Ct. Spec. App. Jan. 17, 2002). This Court affirmed.

See Smith v. State, 371 Md. 496, 498 , 810 A.2d 449, 450 (2002). Following remand, the Appellate Court affirmed Smith’s convictions in an unreported opinion. See Jonathan D. Smith v. State of Maryland, No. 1184, Sept. Term, 2003 (Md. Ct. Spec. App. Nov. 4, 2004).

In 2005, Smith sought post-conviction relief, which the circuit court denied in 2009. See Smith v. State, 233 Md. App. 372, 391 , 165 A.3d 561, 572 (2017). The Appellate Court “subsequently denied his application for leave to appeal” in an unreported opinion. 4 Although our decision in the case is normally cited as “Faulkner” pursuant to rules of citation, because this Court decided the cases of Smith and his codefendant, David R. Faulkner, in one opinion, we depart from that approach here as we are only concerned with Smith’s present request for review. Hereinafter, we shall refer to our 2020 decision as Smith, 468 Md. 418 , 227 A.3d 584 . 5 This Court provided a full recounting of the facts of this case, including the State’s misconduct, in Smith, 468 Md. at 427-59 , 227 A.3d at 589-608 , which we adopt and incorporate herein. 6 Smith had argued that the State improperly withheld “exculpatory DNA evidence” from the defense, “specifically that DNA analysis of debris taken from under the victim’s fingernails was not a match for” Smith or his codefendants.

Smith v. State, 233 Md. App. 372, 390 , 165 A.3d 561, 571 (2017). -4- Id. at 391 , 165 A.3d at 572 (citing Jonathan D. Smith, Sr. v. State of Maryland, No. 850, Sept. Term, 2009 (Md. Ct. Spec. App. June 9, 2010)). In 2013, after recordings of conversations between then-Corporal John Bollinger of the Maryland State Police and Beverly Haddaway, Smith’s aunt and a key witness for the State at trial, were disclosed, Smith filed a motion to reopen his post-conviction proceedings. See Smith, 468 Md. at 444 , 227 A.3d at 599 .

In 2015, Smith filed a petition for a writ of actual innocence, contending that three pieces of newly discovered evidence— improperly withheld by the State—spoke to his innocence, could not have been discovered earlier, and created a substantial possibility that the end result of the trial may have been different. See id. at 445, 459-60 , 227 A.3d at 600, 608 ; see also Md. Code Ann., Crim. Proc. (2001, 2008 Repl.

Vol., 2014 Supp.) § 8-301. The pieces of evidence in question were (1) the matching of palm prints from the victim’s home, recovered immediately after the murder, to a different person, Ty Brooks, identified as a potential suspect 7 years prior to Smith’s arrest; (2) recordings of conversations between Bollinger and Haddaway, discussing her interest in testifying in the case in exchange for an agreement by the State not to prosecute her grandson on then-pending drug charges;8 and (3) statements by a witness that he saw a car other than the victim’s outside the victim’s house around the time 7 We described the evidence of an alternative perpetrator in this case as “compelling” due to the palm prints and other evidence that was available to police a decade prior to the investigation of Smith. See Smith, 468 Md. at 468-71 , 227 A.3d at 613-15 . 8 The recordings documented “Haddaway’s professed willingness to alter her testimony based on whether the State would dismiss the drug charges against her grandson[,]” including threats to “destroy the case” if her demands were not met and “several important irregularities in the State’s handling of the cases” against Smith and Faulkner. Smith, 468 Md. at 475-77 , 227 A.3d at 617-19 . -5- of the murder, which was inconsistent with the State’s theory of Smith’s involvement in the crime.

See Smith, 468 Md. at 431, 444-45 , 227 A.3d at 591, 599-600 . The motion to reopen and the actual innocence petition were consolidated for an evidentiary hearing, and the circuit court denied the motion and the petition. See id. at 445, 454 , 227 A.3d at 600, 605 . The Appellate Court subsequently reversed the circuit court’s judgment, remanded the actual innocence petition to the circuit court, and ordered the circuit court to reopen Smith’s motion for post-conviction relief.

See id. at 454-55 , 227 A.3d at 605 In 2018, on remand, the circuit court held a hearing and again denied Smith’s actual innocence petition. See id. at 455, 459 , 227 A.3d at 606, 608 . On appeal, the Appellate Court affirmed the circuit court in an unreported opinion. See Jonathan D. Smith v. State of Maryland, No. 619, Sept. Term, 2018, 2019 WL 2369903 , ¹-2 (Md. Ct. Spec.

App. June 3, 2019). In 2020, this Court vacated the Appellate Court’s decision and ordered that Smith’s petition be granted and that he be given a new trial. See Smith, 468 Md. at 480 , 227 A.3d at 620 . We held that “there is a substantial or significant possibility that, if the jur[y] had heard the newly discovered evidence along with the evidence that actually was presented . . . they would have reached a different result[.]” Id. at 479 , 227 A.3d at 620 .

However, we did “not exonerate” Smith because of his “confessed involvement” and the “relatively consistent account” of his codefendant, Ray Andrews, who cooperated with the State. Id. at 426, 479 , 227 A.3d at 588, 620 . -6- On remand, in July 2020, Smith filed a motion to dismiss in the circuit court.9 Smith contended that the State’s willful misconduct violated his due process rights to such a degree that dismissal of the criminal information and indictment was the appropriate remedy and that the retrial would constitute double jeopardy. Ruling of the Circuit Court on the Motion to Dismiss On January 7, 2021, the circuit court denied Smith’s motion on both grounds.10 The circuit court concluded that despite the “troubling” conduct by the State, it was not criminal and did “not shock the conscience of the court.” The court distinguished the State’s conduct in the case from cases cited by Smith in support of dismissal, which involved “egregious” and “criminal” conduct by government actors. The court determined that a new trial was the appropriate remedy.

After describing Smith’s original trial strategy as contending that Haddaway was “thoroughly dishonest” and “not credible[,]” the court reasoned that if the case were retried “on the same evidence that was adduced at the original trial,” the State’s withholding of the information about the conversations and deal with Haddaway “would certainly move the needle toward” a finding that Smith “would not have the opportunity to have a fair trial.” But the circuit court characterized Smith’s new defense as a departure from his original strategy, focused instead on the alternative perpetrator argument, which, the court ruled, could potentially lessen the impact of the recordings, 9 The State did not seek a retrial of Faulkner, and instead placed his case on the stet docket, which indefinitely postponed trial of the charges, although the charges could have been “rescheduled for trial at the request of either party within one year and thereafter only by order of court for good cause shown.” Md. Rule 4-248(a). 10 Because we did not grant Smith’s petition for a writ of certiorari on the double jeopardy question, we do not address that aspect of the circuit court’s ruling. -7- because his defense “does not depend on simply refuting” Haddaway’s testimony. The court did “not discount the confrontation issues that relate to any hearsay testimony that the State might try to adduce[,]” but cautioned that it “must also be careful not to presuppose the disposition of any evidentiary matter until [] asked[.]” The circuit court added that this line of reasoning served to distinguish the present case from United States v. Fitzgerald, 615 F.Supp.2d 1156 (S.D. Cal. 2009), a case cited by Smith. The court ruled that “there is a significant body of evidence that” likely would be presented and that the State could foreseeably “rely on evidence other than the testimony that [] Haddaway would give.” The court also ruled that the new trial was “an opportunity to vindicate the evils of the first trial” and therefore did “not trigger the double jeopardy clause.” (Citation omitted). Conditional Plea Agreement On April 20, 2021, the State and Smith informed the circuit court that they had reached an agreement for Smith to enter a conditional Alford plea, preserving for appeal the issue of the circuit court’s denial of Smith’s motion to dismiss.11 The proposed plea agreement included an extensive proffer regarding the evidence that could be presented at retrial, which the parties agreed was established as the record “for the purpose of consideration of the Defendant’s Appeal[.]” The agreement stated that Smith maintained his innocence and that his “decision to enter into this plea is based upon his view that his 11 The agreement indicated that Smith would withdraw the interlocutory appeal that he had noted on January 26, 2021, challenging the circuit court’s denial of his motion.

In accordance with the agreement, Smith withdrew the interlocutory appeal and it was dismissed by the Appellate Court on April 28, 2021. -8- ability to present a full defense at any retrial has been permanently prejudiced” and his view that “the State’s intentional, willful, and/or reckless misconduct” meant that “he can no longer obtain a fair trial in this case.” For its part, the State did not concede Smith’s argument regarding due process and irreparable prejudice, but acknowledged that the State had “intentionally, willfully, and/or recklessly suppressed exculpatory evidence including, but not limited to,” the recordings of Bollinger’s conversations with Haddaway, the deal with Haddaway, possible collusion between Haddaway and Andrews’s counsel, and misrepresentation of the exculpatory DNA evidence. Both parties agreed “that Haddaway’s testimony would not be admissible at any retrial in the State’s case in chief[.]” After a hearing on the plea agreement, the circuit court found a sufficient factual basis to support a finding of guilt on the charges of first-degree murder and daytime housebreaking. Per the agreement, the court imposed a sentence of life imprisonment, entirely suspended except for time served, and placed Smith on a period of supervised probation for five years. Smith appealed, contending that the circuit court erred in denying his motion to dismiss the charges.

Opinion of the Appellate Court of Maryland On September 28, 2022, the Appellate Court of Maryland affirmed the circuit court’s judgment. See Smith, 255 Md. App. at 549, 283 A.3d at 725. On appeal, the Attorney General—reversing the State’s Attorney’s stance before the circuit court—joined Smith in arguing that “the circuit court’s judgment denying the motion to dismiss on due -9- process grounds should be vacated and the charges dismissed.”12 Smith, 255 Md. App. at 568, 283 A.3d at 737. However, the Appellate Court concluded that it was not bound by the Attorney General’s concession of error by the circuit court because Smith’s argument presented a question of law.

See Smith, 255 Md. App. at 568-69, 283 A.3d at 737 (citing Spencer v. Md. State Bd. of Pharm., 380 Md. 515, 523 , 846 A.2d 341, 345-46 (2004)). The Appellate Court first determined that the “law of the case doctrine” did not preclude it from considering Smith’s contention that due process and double jeopardy concerns barred his retrial because this Court’s 2020 decision in Smith “did not address the issues[.]” Smith, 255 Md. App. at 569, 283 A.3d at 737. The Appellate Court explained that Smith’s contentions had not been settled by this Court’s resolution of the earlier appeal. See id. at 569, 283 A.3d at 737.

Nonetheless, the Appellate Court concluded that Smith’s is not one of the “rare cases” that merits “[t]he extreme sanction of dismissal of an indictment” for due process violations. 13 Smith, 255 Md. App. at 576, 283 A.3d at 741. Rather, the Court held, the State’s misconduct in Smith’s case warranted “the most severe sanction” “typically” available for Brady violations: a new trial, which this Court had ordered for him. Smith, 255 Md. App. at 576, 283 A.3d at 741. After reviewing case law concerning Brady 12 The Attorney General did not agree, however, with Smith’s double jeopardy argument.

See Smith, 255 Md. App. at 568, 283 A.3d at 737. And, as it has in this Court, the Association of Prosecuting Attorneys supported Smith’s due process position in an amicus curiae brief filed with the Appellate Court. See Smith, 255 Md. App. at 568 n.14, 283 A.3d at 736 n.14. 13 The Appellate Court also concluded that Smith’s double jeopardy argument did not warrant dismissal of the indictment. See Smith, 255 Md. App. at 577-80, 283 A.3d at 742-43. - 10 - violations, the Appellate Court used the following standard for assessing whether dismissal of an indictment is appropriate: “where a defendant shows willful misconduct by the State, dismissal is appropriate only when: (1) the misconduct results in irreparable prejudice; and (2) no less drastic alternative is available.” Smith, 255 Md. App. at 576, 283 A.3d at 741.

The Appellate Court began with the premise that a new trial is the normal remedy for Brady violations and that Brady’s “underlying principle” “is not punishment of society for misdeeds of a prosecutor but avoidance of an unfair trial to the accused.” Smith, 255 Md. App. at 570, 283 A.3d at 737-38 (quoting Brady, 373 U.S. at 87 ) (internal quotation marks omitted). The Court recognized Maryland case law stating that, in other contexts, dismissal is an “extreme sanction” that “should be used sparingly, if at all.” Id. at 570, 283 A.3d at 737-38 (cleaned up). The Court observed, however, that neither the Supreme Court of the United States nor Maryland case law has authorized dismissal as a remedy for a Brady violation. See Smith, 255 Md. App. at 570-71, 283 A.3d at 738.

Unpersuaded by Smith’s argument that this Court’s holding in Williams v. State, 416 Md. 670 , 7 A.3d 1038 (2010) supported his position, the Appellate Court characterized as dicta the reference to dismissal of the indictment in that case—“dismissal of an indictment as a sanction is appropriate only where less drastic alternatives are not available”—because this Court held that no Brady violation occurred. Smith, 255 Md. App. at 571-72, 283 A.3d at 738-39 (quoting Williams, 416 Md. at 693 n.8, 7 A.3d at 1051 n.8) (internal quotation marks omitted). The Appellate Court looked to other jurisdictions’ treatment of dismissal as a remedy for a Brady violation. See Smith, 255 Md. App. at 572, 283 A.3d at 739.

The - 11 - Court described circumstances under which United States Courts of Appeals and the Supreme Court of Alabama declined to order dismissal of charges due to Brady violations where the defendant either could not prove that the prosecutor’s misconduct was willful or that prejudice could not be cured by a new trial, or both. See Smith, 255 Md. App. at 572- 74, 283 A.3d at 739-40. Drawing on the reasoning in those and other cases from federal and State appellate courts, which emphasize that dismissal is a rare remedy that is appropriate only “when less drastic alternatives are not available[,]” the Appellate Court concluded that dismissal of an indictment for Brady violations is appropriate only when the “defendant shows willful misconduct by the State” that so prejudices the defendant that no fair trial is possible. Smith, 255 Md. App. at 574-576, 283 A.3d at 740-741.

Applying the above rubric, the Appellate Court concluded that, although Smith had established the State’s willful misconduct, Smith had failed to show that he “suffered irreparable prejudice that could not be corrected by a new trial.” Id. at 576, 283 A.3d at 741. The Court reasoned that Smith could utilize all of the evidence that had previously been suppressed in his new trial and that he could also introduce other newly discovered evidence, such as the palm prints. See id. at 576, 283 A.3d at 741. Recognizing the challenge facing Smith from Haddaway’s death, the Appellate Court nonetheless determined that her prior testimony “could be excluded from the State’s case-in-chief” due to the State’s misconduct, but used by Smith to impeach other witnesses “if he thought it was in his best interest.” Id. at 577, 283 A.3d at 741-42.

As for fading memories of other witnesses, the Appellate Court concluded that “the record reflects prior statements made.” Id. at 577, 283 A.3d at 742. The Court stated that “a remedy less drastic than dismissal - 12 - could be found” and that, therefore, Smith had “failed to meet his burden to show that due process required the extreme remedy of dismissal of the charges” due to the State’s suppression of evidence at his first trial. Id. at 577, 283 A.3d at 742. Petition for a Writ of Certiorari On November 15, 2022, Smith petitioned for a writ of certiorari, raising the following two issues: 1.

Does the State’s two-decade-long pattern of intentional, willful, and/or reckless misconduct, including widespread suppression of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963) and knowing false statements, mandate dismissal with prejudice under the Due Process Clause? A. Did the lower courts apply an erroneous standard and/or err in their evaluation of the prejudice suffered by Mr. Smith? B. Did the lower courts apply an erroneous standard and/or err in their determination that there was a less drastic alternative remedy to dismissal with prejudice? 2. Did the lower courts apply an erroneous standard or err in concluding that double jeopardy principles did not bar Mr. Smith’s retrial despite the State’s bad faith misconduct that prosecutors purposefully hid until long after trial?

On November 30, 2022, the State filed an answer to the petition for a writ of certiorari in which it “agree[d] with Smith that this Court should grant certiorari review and reverse the judgment of the [Appellate Court] as to due process.” The State opposed the petition “as to double jeopardy, however, because it does not raise a genuine issue of broad public concern.” (Citation omitted). We granted the petition, limited to the first question set forth in the petition, i.e., we did not grant the petition as to the double jeopardy question. See Smith v. State, 482 Md. 534 , 288 A.3d 1231 (2023). - 13 - DISCUSSION Introduction Smith and the State agree that the charges against Smith should be dismissed on due process grounds based on the Brady violations in the case, the State’s admission that it engaged in willful misconduct, and irreparable harm caused by the State’s misconduct. An appellate court reviews questions of law and constitutional interpretation de novo.

See, e.g., State v. Hart, 449 Md. 246, 264 , 144 A.3d 609, 619 (2016). The Due Process Clause of the Fifth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, prohibits the government from engaging in conduct that “shocks the conscience” or that “interferes with rights implicit in the concept of ordered liberty[.]” United States v. Salerno, 481 U.S. 739, 746 (1987) (cleaned up). Generally, where a Brady violation occurs, a new trial is the appropriate remedy. See Williams v. State, 183 Md. App. 517, 526 , 962 A.2d 440, 445 (2008), rev’d on other grounds, 416 Md. 670 , 7 A.3d 1038 (2010).

A court may, however, dismiss an indictment as a sanction in an extraordinary case of misconduct by the State where no less drastic remedy is available. See Williams, 416 Md. at 693 n.8, 7 A.3d at 1051 n.8. Consistent with our observations in Williams, courts in other jurisdictions and the Appellate Court in this case have set forth, in essence, the following standard for dismissal on due process grounds as the sanction for government misconduct: (1) willful misconduct, i.e., intentional, knowing, or reckless misconduct, which may be shown through egregious misconduct or a pattern of repeated misconduct, along with: (2) irreparable prejudice; and (3) no less feasible alternative to dismissal to alleviate the prejudice. See, e.g., Gov’t of - 14 - Virgin Islands v. Fahie, 419 F.3d 249, 254-57 (3d Cir. 2005); People v. Velasco-Palacios, 185 Cal.

Rptr. 3d 286, 293-95 (Cal. Ct. App. 2015); United States v. Lang, No. 1:15-cv- 00018-WAL-GWC, 2019 WL 1673317 , ⁵, 11, 21 (D.V.I. Apr. 17, 2019), appeal dismissed, No. 19-2124, 2019 WL 5966406 (3d Cir. June 5, 2019). And, in United States v. Pasha, 797 F.3d 1122, 1139 (D.C. Cir. 2015), a case cited by both parties, a similar three- pronged standard was recognized: (1) a Brady violation requires a remedy of a new trial; (2) such new trial may require striking evidence, a special jury instruction, or other additional curative measures tailored to address persistent prejudice; and (3) if the lingering prejudice of a Brady violation has removed all possibility that the defendant could receive a new trial that is fair, the indictment must be dismissed. Ordinarily, an appeal of a trial court’s denial of a motion to dismiss criminal charges must await a final judgment.

See In re Franklin P., 366 Md. 306, 335 , 783 A.2d 673, 690 (2001). In Franklin, id. at 313-14 , 783 A.3d at 677-78, this Court held that a trial court’s denial of a motion to dismiss criminal charges for lack of jurisdiction was not immediately appealable under the collateral order doctrine. This Court explained that the trial court’s denial of the motion to dismiss was “completely reviewable on appeal” after a final judgment. Id. at 328, 783 A.2d at 686 .

In this case, Smith initially contended that an interlocutory appeal was permitted under the collateral order doctrine. Smith and the State, however, entered into the conditional Alford plea and Smith withdrew the interlocutory appeal, leaving this Court in the position of reviewing the denial of motion to dismiss without a retrial having occurred. Based on the proffer of facts in the conditional plea agreement, we have no difficulty - 15 - in determining that the first factor of the standard for evaluating whether a violation of due process warrants dismissal is satisfied. The State has admitted it engaged in egregious misconduct that was willful, i.e., intentional, knowing, or reckless.

Despite the proffer, though, there is less than sufficient information to assess with certainty the applicability of the last two factors: irreparable prejudice and whether a feasible alternative other than dismissal would alleviate the prejudice. Irreparable Prejudice and Feasible Alternative to Dismissal In the circuit court, the State had agreed not to use Haddaway’s testimony at retrial in its case-in-chief, and Smith contended that testimony from other witnesses had been influenced by Haddaway’s improper role in the case. Before this Court, Smith has argued, and the State has agreed, that Haddaway’s actions “infected the case” to such an extent that, with Haddaway’s death, Smith could never effectively counter that influence in a retrial. The parties assert that the State’s misconduct so prejudiced Smith that he could not get a fair trial for four reasons: the memory problems of many witnesses, including key ones; the deaths of four witnesses; the inability of the defense to timely investigate leads while they were fresh, compromising what evidence would have been developed; and the benefit to the State of seeing the defense strategy over the many years of Smith’s appeals.

Clearly, the State’s actions and intervening circumstances created serious prejudice to Smith. Less clear is whether the prejudice is irreparable and whether there is no less drastic measure than dismissal. We are cognizant that the