State v. Williams

BELL, Chief Judge. In this case, we are asked whether Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963), and its application pursuant to Maryland Rule 4-263(g), 1 extend not only to exculpatory or mitigating information pertaining to State’s witnesses known by the Assistant State’s Attorney prosecuting a specific criminal case and the related officers participat ¹⁹⁸ ing in that prosecution, but also to such information known to the other Assistant State’s Attorneys in the same office. We shall hold that Rule 4-263(g) requires that result. Furthermore, as did the Court of Special Appeals, Williams v. State, 152 Md.App. 200 , 831 A.2d 501 (2003), we believe that, under the circumstances of this case, Brady does indeed extend beyond the individual prosecutor, encompassing exculpatory or mitigating information known to any prosecutor in the office.

The United States Supreme Court, in Brady , held that the Due Process Clause of the United States Constitution imposes upon the State a duty and obligation to disclose “evidence favorable to an accused upon request ... where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87 , 83 S.Ct. at 1197 , 10 L.Ed.2d at 218 . See also Pennsylvania v. Ritchie, 480 U.S. 39, 57 , 107 S.Ct. 989, 1001 , 94 L.Ed.2d 40, 57 (1987). The evidence to which the Court referred was both exculpatory evidence and impeachment evidence. Giglio v. United States, 405 U.S. 150, 154 , 92 S.Ct. 763, 766 , 31 L.Ed.2d 104, 109 (1972).

See also United States v. Bagley, 473 U.S. 667, 676 , 105 S.Ct. 3375, 3380 , 87 L.Ed.2d 481, 490 (1985). The duty to disclose such evidence also applies whether or not there has been a request for such evidence by the accused. United States v. Agurs, 427 U.S. 97, 107 , 96 S.Ct. 2392, 2399 , 49 L.Ed.2d 342, 351 (1976). The State in the case sub judice essentially presents three arguments, each of which, it maintains, requires reversal of the judgment of the Court of Special Appeals.

First, it claims that the net cast by Brady does not, in fact, reach evidence beyond the personal knowledge of the individual prosecutor in a case, without regard to the ease with which the prosecutor may have been able, with due diligence, to obtain such evidence from other sources. Second, it claims that, even if Brady applies to such evidence, the State’s failure to disclose it is excused, or negated, by the defendant’s ongoing discovery duty. Third, the State argues that the evidence that was not disclosed in this case was not material, and, therefore, was ¹⁹⁹ unlikely to have affected the decision rendered at the trial level; that, in other words, it was “harmless error.” With all these points, we disagree. A. Having mandated in Brady , that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution,” 373 U.S. at 87 , 83 S.Ct. at 1197 , 10 L.Ed.2d. at 218, the Supreme Court has outlined the three elements of a Brady violation.

Strickler v. Greene, 527 U.S. 263, 281-282 , 119 S.Ct. 1936, 1948 , 144 L.Ed.2d 286, 302 (1999). The Court has explained: “The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” 527 U.S. at 281-282 , 119 S.Ct. at 1948 , 144 L.Ed.2d at 302 . With this in mind, we turn to the facts of this case. The respondent, Tony Williams, was charged with, and convicted in the Circuit Court for Baltimore City of, the murder of Dana Rochelle Drake, who was fatally shot outside her apartment in northeast Baltimore, and related offenses.

Central to the State’s case against the respondent was the testimony of Sean Williams (“S. Williams”), a jailhouse snitch. S. Williams, who had occupied a cell adjacent to the one occupied by the respondent when the respondent was being held on the murder charge at the Baltimore City jail, testified that the respondent admitted committing the murder. According to S. Williams, at that time, the respondent also admitted purchasing the murder weapon. The motive for the crime was, he said, the respondent’s desire to collect the proceeds of the life insurance policy he had taken out on Ms. Drake’s life.

S. Williams testified that he reported this information to homicide detectives, including an Officer Massey, who recorded his statement. He stated that he was promised nothing in exchange for the information and, furthermore, had ²⁰⁰ not asked for anything. Thus, S. Williams maintained that he was getting “nothing” “out of this thing,” and that no one in the State’s Attorney’s Office promised him anything or initiated contact with him about the case. In short, according to S. Williams, his testimony was being given “out of the goodness of his heart” and because he did not like guns and violence.

The respondent’s convictions were reversed by the Court of Special Appeals. Williams v. State, 152 Md.App. 200 , 831 A.2d 501 (2003). Although unknown to the prosecuting attorney, S. Williams was, and had been, for at least 10 years, a paid and registered police informant fo. the Baltimore City Police Department, Eastern District Drug Unit, with his own confidential informant number. 2 Moreover, he had cooperated with the State’s Attorney’s Office in a number of cases, involving narcotics, weapons and homicide, leading to numerous arrests. That S. Williams was a confidential informant, with an identification number, and was cooperative in narcotics cases, was known to at least one member of the Baltimore City State’s Attorney’s Office and also, perhaps more extensively, to members of the Baltimore City Police Department.

When the respondent was arrested and charged with the Drake murder, 3 S. Williams had been charged with theft of both a battery and a police cruiser from the Eastern District Police District. Those charges were disposed of in consider ²⁰¹ ation of S. Williams’s cooperation in drug arrests. His handler, the officer who registered him, so testified. That testimony was confirmed by S. Williams’s attorney in the theft case and by the prosecutor in that case.

In fact, the prosecutor testified that it was because of S. Williams’s cooperation in narcotics cases that he “stetted” the cruiser theft charge. For the battery theft charge, he was sentenced to “time served.” The case folder in the S. Williams’s theft case contained other corroborative evidence. A notice of postponement indicated that the “defense wishes to cooperate [with the Baltimore City Police Department] and others on pending cases.” In addition, the stet noted that it was entered because the “State declines to prosecute.” Although the prosecuting attorney in the respondent’s case and homicide detective Massey testified that they did not know of S. Williams’s informant status and denied “giving him anything” for his testimony—Massey even indicated that S. Williams never asked for anything in exchange for the information he provided—the case file in an earlier case involving S. Williams suggested that S. Williams had a different mindset, that he wanted, and had actively sought, consideration for his cooperation. S. Williams had earlier been sentenced to twenty-one months and five days for possession of cocaine.

There were nine letters in the file, each written by S. Williams to the sentencing judge in that case, informing the sentencing judge that he was an informant for the Baltimore City Police Department and touting his cooperation with his handler, and “the prosecutor.” In those letters, S. Williams asked for leniency in exchange for his cooperation. In four of the letters, his cooperation with homicide officers was emphasized. In the letter postmarked August 12, 1998, mentioning Officer Massey, he told the judge, “I have been very helpful to officers in Homicide since my arrest, I have told them very important things in cases that are to be tryed [sic] soon.” In two subsequent letters, he referenced the respondent’s case, a murder case “which involved a man who killed his fiancee, to obtain a very lump some [sic] of a life insurance,” advising the sentencing judge in one of the letters that he was the “key ²⁰² witness” and informing him in the other that he had just testified. In both letters he mentioned again Officer Massey.

The sentencing judge responded to S. Williams on two occasions, sending copies to “the State’s Attorney’s Office,” rather than to a particular assistant. In one of the responses, the judge told S. Williams to have his attorney contact the detective who registered him “and [to] have [his] attorney or the Detective contact this office to inform the Judge of any help you are giving him.” Having learned of the preceding facts, the respondent filed a post conviction petition, based on newly discovered evidence. The newly discovered evidence was, he alleged, that the State had failed to disclose impeachment information regarding S. Williams, its primary and star witness, including that he was, and had a record of being, a paid informant. The respondent argued that without this information, his cross-examination of the “jailhouse snitch” at trial was severely and prejudicially weakened.

As indicated, the prosecuting attorney testified that she had not made any “offers of leniencies or provided any benefit to Sean Williams in exchange for his testimony in the Tony Williams case.” Moreover, she denied speaking with the prosecutor who prosecuted S. Williams and, therefore, was aware neither of the charges lodged against him nor of their disposition. ■The post conviction court denied the respondent’s petition for post conviction relief. Perceiving the question to be whether the knowledge possessed by a prosecutor in the General Felony Division of the Baltimore City State’s Attorney’s Office is imputed to a homicide prosecutor in the same office, but in a different location and a different division, it answered “no,” concluding that “under Brady and Maryland Rule 4-263(g), the State’s duty did not extend to information held by another prosecutor within the same prosecutor’s office who, at all times, was wholly unconnected to the case at issue.” The court reasoned that, while it “seems fair and appropriate for the State to be required to disclose to defense counsel all ²⁰³ exculpatory information in its hands, including all evidence which goes toward impeachment of a State witness, both in its files and the files of the police and of all other agencies who have reported on the ease to the State’s Attorney’s Office and who have participated in the case as a part of the prosecution case,” a rule that would extend the disclosure duty on the prosecution to information possessed by those who neither has ever reported to the prosecution or directly worked on the case would be too broad. “Th[e] Court d[id] not believe such construction would be appropriate, practical or would enhance the administration of justice.” B. At the Court of Special Appeals, the respondent conceded that the particular Assistant State’s Attorney in his case had not been aware of S. Williams’s status as an informant. The respondent contended, however, that, under Brady , the obligation to disclose information relating to the credibility of a witness extended beyond the knowledge of the particular prosecutor, to all of that prosecutor’s colleagues within the same office. Further, the respondent argued that Maryland Rule 4-263(g) applies to all prosecutors in the same office, whether or not assigned to, or working on, the case.

Thus, the respondent argued that, because S. Williams was the State’s critical witness, “[the State] should at the very least be required to perform due diligence within the same prosecutor’s office to verify such claims.” Williams v. State, 152 Md.App. at 218, 831 A.2d at 511. Finally, the respondent maintained that S. Williams’s testimony was material. He noted, in support, the lack of forensic evidence and the circumstantial nature of the rest of the State’s case. He believed, and therefore submitted, that there was a reasonable probability 4 that the verdict would have been different if S. Williams’s status as an informant had been disclosed. ²⁰⁴ The State, not unexpectedly, agreed with the post conviction court’s more limited reading of Brady and Maryland Rule 4-263(g).

The State further contended that S. Williams’s information was not material since his credibility was sufficiently “attacked” on cross-examination. In deciding this case, the Court of Special Appeals first established that, pursuant to Giglio , when the reliability of a State witness is determinative of the defendant’s guilt or innocence, the State’s failure to disclose impeachment evidence falls within Brady. 405 U.S. at 154 , 92 S.Ct. at 766 , 31 L.Ed.2d at 108 . It agreed with the respondent that when applied to his case, Giglio , required that “[t]he prosecutor’s office [be treated as] an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed,, for these purposes, to the Government.” Williams, 152 Md.App. at 224, 831 A.2d at 515, quoting Giglio, 405 U.S. at 154 , 92 S.Ct. at 766 , 31 L.Ed.2d at 109 .

The intermediate appellate court also was persuaded that, “[t]o the extent this places a burden on the large prosecution offices, procedures and regulations can be established to carry that burden and to insure communication of all relevant information on each case to every lawyer who deals with it.” Id. Indeed, it observed: ²⁰⁵ “When, as here, there is an obvious basis to suspect the motives and credibility of a proposed witness for the State, it may be incumbent upon the State’s Attorney, in an office with many Assistant State’s Attorneys, to establish a procedure to facilitate compliance with the obligation under Brady to disclose to defense material that includes information ‘casting a shadow on a government witness’s credibility^]’ ” Williams, 152 Md.App. at 225, 831 A.2d at 515, citing United States v. Bernal-Obeso, 989 F.2d 331, 334 (9th Cir.1993). The Court of Special Appeals believed that the State’s Attorney’s Office had been put on notice that S. Williams was seeking a reward in exchange for his testimony and cooperation in homicide and narcotics cases. It adopted the rationale enunciated by the Ninth Circuit Court of Appeals in Bemal-Obeso, that a material lie by an informant about his prior record is exculpatory within the meaning of Brady .

In Bernab-Obeso, the court explained: “By definition, criminal informants are cut from untrustworthy cloth and must be managed and carefully watched by the government and the courts to prevent them from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom.... By its actions, the government can either contribute to or eliminate the problem. Accordingly we expect prosecutors and investigators to take all reasonable measures to safeguard the system against treachery. This responsibility includes the duty as required by Giglio to turn over to the defense in discovery all material information casting a shadow on a government witness’s credibility.” 989 F.2d at 333-334 .

Therefore, to the Court of Special Appeals, although the prosecutor did not know that S. Williams was a paid informant, it was significant that she did know that he was an incarcerated man coming forward “out of the goodness of his heart.” That knowledge “should [have] give[n] even the most unseasoned prosecutor pause as to the ²⁰⁶ informant’s true motives.” 152 Md.App. at 224, 831 A.2d at 514. Having determined that the State failed to discharge its Brady obligation to disclose information favorable to the respondent, the intermediate appellate court turned to, and addressed, the materiality of the withheld information. It concluded that “the taint of the Brady suppression matters on this record so undermines our confidence in the murder conviction that a new trial is in order.” 152 Md.App. at 227, 831 A.2d at 516, citing Conyers v.State, 367 Md. 571, 613 , 790 A.2d 15, 40 (2002), cert. denied, 537 U.S. 942 , 123 S.Ct. 341 , 154 L.Ed.2d 249 (2002). We granted the State’s petition for writ of certiorari, State v. Williams, 378 Md. 617 , 837 A.2d 928 (2003), to address this important issue.

C. Maryland Rule 4-263(g) clearly mandates, and requires, that the duty to disclose materials and information applies not only to those prosecuting or actively participating in the case, but also to any and all members of the State’s Attorney’s Office, attorneys and staff. Rule 4-263(g) states, in its entirety: “The obligations of the State’s Attorney under this Rule extend to material and information in the possession of the State’s Attorney and staff members and any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney.” Md. Rule 4-263(g) (emphasis added). The canons of rule construction and interpretation are well settled and frequently stated. “To interpret rules of procedure, we use the same canons and principles of construction used to interpret statutes.” State ex rel. Lennon v. Strazzella, 331 Md. 270, 274 , 627 A.2d 1055, 1057 (1993).

See Jones v. Hubbard, 356 Md. 513, 526 , 740 A.2d 1004 , 1011 ²⁰⁷ (1999) (“the canons of statutory construction are also generally applicable in respect to rule construction”); State v. Bell, 351 Md. 709, 717 , 720 A.2d 311, 315 (1998); State v. Harrell, 348 Md. 69, 79 , 702 A.2d 723, 728 (1997) (“In construing a rule, we apply principles of interpretation similar to those used to construe a statute”); In re Victor B., 336 Md. 85, 94 , 646 A.2d 1012, 1016 (1994) (“We have repeatedly stated that the canons and principles we follow in construing statutes apply equally to an interpretation of our rules”); State v. Montgomery, 334 Md. 20, 24 , 637 A.2d 1193, 1195 (1994) (“The canons and rules of construction that guide the interpretation of statutes apply equally when interpreting rules of procedure.”). In Strazzella, 331 Md. at 274-75 , 627 A.2d at 1057 , we articulated: “In our effort to discern the meaning of a rule, we look first to the words of the rule. When the words are clear and unambiguous, ordinarily we need not go any further.... Only when the language of the rule is ambiguous is it necessary that we look elsewhere to ascertain legislative intent....

We are also to give effect to the entire rule, neither adding, nor deleting, words in order to give it a meaning not otherwise evident by the words actually used.... Finally, we seek to give the rule a reasonable interpretation, not one that is illogical or incompatible with common sense. ... ” (citations omitted). See Blundon v. Taylor, 364 Md. 1, 7-8 , 770 A.2d 658, 661-662 (2001); see also Mayor and City Council of Baltimore v. Chase, 360 Md. 121, 128 , 756 A.2d 987, 991 (2000); Chesapeake and Potomac Tel. Co. of Maryland v. Director of Finance for Mayor and City Council of Baltimore, 343 Md. 567, 578-79 , 683 A.2d 512, 517-18 (1996).

Moreover, the rule is read so that “no word, phrase, clause or sentence is rendered surplusage or meaningless.” Montgomery County v. Buckrnan, 333 Md. 516, 524 , 636 A.2d 448, 452 (1994); Condon v. State, 332 Md. 481, 491 , 632 A.2d 753, 755 (1993); Prince George’s Co. v. White, 275 Md. 314, 319 , 340 A.2d 236, 240 (1975). “Where the words of a statute, ²⁰⁸ construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning,” the court will give effect to the rule as written. Design Kitchen & Baths v. Lagos, 388 Md. 718, 728 , 882 A.2d 817, 823 (2005), citing Moore v. Miley, 372 Md. 663, 677 , 814 A.2d 557, 566 (2003). Thus, “when the statutory language is plain and unambiguous, a court may neither add nor delete language so as to ‘reflect an intent not evidenced in that language,’ ... nor may it construe the statute with ‘ “forced or subtle interpretations” that limit or extend its application.’ ” Design Kitchen & Baths, 388 Md. at 729 , 882 A.2d at 823-824 . So read, it is clear from the language used by the rule that the obligations of the State’s Attorney to disclose encompasses three groups: the State’s Attorney, his or her staff members, and those who are not either of the foregoing, but who have participated, or are participating, in the case itself, by, for example, participating “in the investigation or evaluation of the action,” regularly reporting to the State’s Attorney’s Office, or, with respect to the case under review, have reported to the State’s Attorney’s Office.

This is made clear by the fact that no distinction is drawn between attorneys and staff working on the subject case and those that are not, and by the use of the word “and” to separate the terms “State’s Attorney” and “staff members” from each other and from the remainder of the sentence. In context, the reference to simply “State’s Attorney,” rather than to “Assistant State’s Attorneys,” is to the Office, as an entity, i.e., to all of the attorneys in that office. Similarly, in context, “staff members” must refer to all support personnel, i.e. secretaries, paralegals and other personnel, in the State’s Attorney’s Office. The use of “and,” rather than separating each specific category with a comma, indicates that the group, on either side of the conjunction, stands alone and is not a part of a series connected by a common characteristic.

Aside from the punctuation, the words used to introduce the category of persons who are not a part of the State’s attor ²⁰⁹ ney’s office are not consistent with a series of related persons. “Any others,” followed by the applicable qualifiers, far from denoting a continuing series, introduces additional persons who are covered, but only if they qualify on the bases then subsequently .enumerated, which bases need not be the same as qualified the earlier enumerated categories. The State argues the contrary, that Maryland Rule 4-263(g) must be construed more narrowly. Focusing on the rule’s last phrase, “any others who have participated in the investigation or evaluation of the action and who either regularly report, or with reference to the particular action have reported, to the office of the State’s Attorney,” it submits that these qualifiers apply with equal force to “State’s Attorney” and “staff member,” that this Court intended only those prosecutors and staff members who were, or had been, involved with the case to fall within the rule’s prescription. This narrow reading is not supported by the language of the rule.

For the State’s interpretation to be the correct one, or even plausible, at the very least, a comma, rather than the word “and” would have had to have been inserted between the words “State’s Attorney” and “staff members.” Even then, the words, “any others,” would have to be explained; those words suggest a separateness. By their use, as we have indicated, there is introduced a new category of affected persons, rather than a continuation of a series bound together by a common characteristic. In addition, for the State’s interpretation to be a proper one, the meaning of the words, “State’s Attorney” and “staff members” would have to be expanded by reading them as “Assistant State’s Attorneys” and staff members “working on, or that have worked on,” the particular action. That requires adding words and, thus, giving the Rule a meaning not evident from the words actually used.

We hold that by referring only to the “State’s Attorney and staff members,” without any restriction, and then including “any others,” restricted to those with a direct present or past involvement with the particular action, Rule 4-263(g) draws a ²¹⁰ distinction between the State’s Attorney’s Office and those outside that Office who are on the prosecution team. The latter category falls within the Brady rule only if those persons have or have had involvement with the action at issue or regularly reports to the State’s Attorney’s Office. No such limitation applies to the attorneys and staff in that Office. As to them, the Brady obligation extends to material and information in their possession.

Thus, where, as in the case sub judice, the information regarding S. Williams’s status as an informant was known to another attorney in the State’s Attorney’s Office, the Rule compels its disclosure. D. Brady also mandates that, under the circumstances of this case, the State’s duty and obligation to disclose exculpatory and mitigating material and information extend beyond the individual prosecutor and encompass information known to any prosecutor in the office. Generally, Brady violations cover a variety of prosecutorial transgressions involving the breach of the duty to disclose exculpatory evidence. Strickler, 527 U.S. at 280 , 119 S.Ct. at 1948 , 144 L.Ed.2d at 301 .

These transgressions include both the failure to search for, and the failure to produce, such evidence. In re Sealed Case, 337 U.S.App.D.C. 332 , 185 F.3d 887, 892 (D.C.Cir.1999). When the core of the State’s argument relies on the testimony of an essential witness, the State has a duty to discover anything, and everything, that concerns that witness’s credibility and, thus, potential for impeachment. The State admits that, under Giglio, 405 U.S. at 154 , 92 S.Ct. at 766 , 31 L.Ed.2d at 108 , when the reliability of a witness is determinative of guilt or innocence, nondisclosure of such evidence falls within Brady .

In that case, where the entire State’s case relied upon the credibility of the testimony of a key State witness; the Supreme Court held that “evidence of any understanding or agreement as to a future prosecution would be relevant to his credibility.” 405 U.S. at 154-155 , 92 S.Ct. at 766 , 31 L.Ed.2d at 108 . See also Ware v. State, 348 ²¹¹ Md. 19, 41, 702 A.2d 699, 710 (1997) (“[T]he prosecutor’s duty to disclose applies to any understanding or agreement between the witness and the State”). Essential to the inquiry into whether a Brady violation has occurred is the determination of who has the obligation to disclose and of what that obligation consists. The State’s main contention, disagreeing with the Court of Special Appeals, is that Brady and its progeny do not extend the disclosure obligation to information possessed by all prosecutors working in the same office.

We disagree with the State. We hold that the disclosure obligation imposed by Brady does, in fact, apply to information possessed by other prosecutors in the same office. In Kyles v. Whitley, 514 U.S. 419, 438 , 115 S.Ct. 1555, 1568 , 131 L.Ed.2d 490, 508 (1995), to be sure, the Supreme Court held that the Brady disclosure obligation includes information “known only to police investigators and not to the prosecutor.” Therefore, the Court pointed out, in order to comply with Brady , “the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in the case, including the police.” Id. at 437, 115 S.Ct. at 1567 , 131 L.Ed.2d at 508 . This does not address, and certainly does not require, that prosecutors in the same office be insulated from the Brady disclosure requirement depending on whether they have had any involvement in a particular case.

In Giglio , defense counsel asked a State’s witness on cross-examination if any promises of leniency had been made, and the witness falsely answered no. 405 U.S. at 151-152 , 92 S.Ct. at 765 , 31 L.Ed.2d at 107 . The prosecution misrepresented that no such promises had been made, even though one had been. 405 U.S. at 152 , 92 S.Ct. at 765 , 31 L.Ed.2d at 107 . The Defendant moved for a new trial based upon this newly discovered information. 405 U.S. at 152 , 92 S.Ct. at 765 , 31 L.Ed.2d at 107 . The Supreme Court rejected the contention that, because the attorney who had made the deal did not report it to his superiors or coworkers, Brady did not apply. ²¹² 405 U.S. at 154 , 92 S.Ct. at 766 , 31 L.Ed.2d at 109 .

Instead, the Court held, “[t]he prosecutor’s office is an entity and as such it is the spokesman for the Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” Giglio, 405 U.S. at 154 , 92 S.Ct. at 766 , 31 L.Ed.2d at 109 . The State acknowledges that the nondisclosure that occurred in Giglio deprived the defendant of a fair trial. Nevertheless, relying on the following excerpt from Giglio , “We do not ... automatically require a new trial whenever a ‘combing of the prosecutor’s files after the trial has disclosed evidence possibly useful to the defense but not likely to have changed the verdict,’ ” 405 U.S. at 154 , 92 S.Ct. at 766 , 31 L.Ed.2d at 108 , it argues that a new trial is unwarranted.

This does not explain why prosecutors within the same office do not come within the purview of Brady . If anything, Giglio compels a more careful probing of all the ■'“As within the prosecutor’s office during discovery in order to avoid later discovery of outcome-affecting, if not determinative, evidence. In In re Sealed Case, 185 F.3d 887 (D.C.Cir.1999), a District of Columbia police officer applied for a warrant to search the home of the defendant, based on informant information that guns and ammunition were present within the home. 185 F.3d at 889 . The warrant was executed, guns and ammunition were found, and the defendant was arrested. 185 F.3d at 889 .

The defendant was charged in federal court with unlawful possession of a firearm and ammunition by a convicted felon. At trial, the defendant sought to discover the identity of the informant, as well as any Brady information concerning promises made to this informant. 185 F.3d at 889 . After this request was denied, the informant, a friend of the defendant’s, came foiward and admitted to the defendant’s attorney’s investigator that he was working for the government in the federal case in order to get a deal in his own criminal case that was pending in D.C. Superior Court. 185 F.3d at 890 . Defense counsel moved for disclosure of information about the ²¹³ witness’s sealed cases and cooperation agreements respecting those cases.

That request was denied. 185 F.3d at 891 . The government believed, and therefore argued, that the cooperation agreements in the sealed cases involving government witnesses were not within the purview of Brady , presumably because, despite being prosecuted by attorneys from the same office, they were made in connection with and involved a case separate from the one as to which they were being sought, and the case to which they applied was in a separate level of court. Thus, it argued the agreements were not required to be disclosed. 185 F.3d at 891 . The trial court agreed. 185 F.3d at 891 .

The United States Court of Appeals for the District of Columbia Circuit, however, rejected the argument. 185 F.3d at 896 . It explained: “We find equally unfounded the argument that any agreements [the informant] may have had in his Superior Court cases ‘don’t have anything to do with this case.’ ... Defendant’s whole point was that [the informant] may have planted the gun in this case in order to ‘work off obligations that arose in those Superior Court cases. Hence, agreements in the other cases have everything to do with this case.

Nor does it matter that agreements in other cases may have involved other prosecutors. The United States Attorney’s Office for the District of Columbia prosecutes cases in both the federal District Court and the local Superior Court, and the prosecutor is responsible (at a minimum) for all Brady information in the possession of that office. * * * * “For a similar reason, we reject as irrelevant the contention that the requested records may have been in the possession of the Metropolitan Police Department, or the FBI or DEA, rather than the U.S. Attorney’s Office. As the Supreme Court held in Kyles , ‘the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government’s behalf in the case, including the police.’ ... Anticipating Kyles , we specifically held in United States v. Brooks[, 296 U.S.App.D.C. 219 , 966 F.2d 1500 (1992)] that prosecutors in this District are responsible for disclosing ²¹⁴ Brady information contained in MPD files, ‘given the close working relationship between the Washington metropolitan police and the U.S. Attorney for the District of Columbia (who prosecutes both federal and District crimes, in both the federal and Superior courts).’ ...

The same is true for files of the FBI and DEA which, like the U.S. Attorney’s Office, are components of the U.S. Department of Justice____” 185 F.3d at 896 (citations omitted) (emphasis added). Thus, it mattered little that the undisclosed information came from a different level of trial court in a different case; because the prosecuting attorneys came from the same office, Brady applied. Some federal courts have held that, in reference to offices and other involved persons outside of the prosecutor’s office, Brady applies according to one’s participation level. United States v. Eley, 335 F.Supp. 353 (N.D.Ga.1972), supports this proposition: “It should also be pointed out that the Brady duty affects not only the office of the United States Attorney in Atlanta, but also any other investigative agencies of the Government which have gathered information as part of the case of the prosecution against the accused who seeks disclosure.

Thus if the Bureau of Narcotics and Dangerous Drugs or the Federal Bureau of Investigation have participated in the case and have in their possession information which may be favorable to the accused, it must be disclosed to him.... Of course, the prosecutor has no duty to disclose information in the possession of governmental agencies which are not investigative arms of the prosecution and have not participated in the case, even if such information might be helpful to the accused----” 335 F.Supp. at 358 (citations omitted). As another example, in Barbee v. Warden, Maryland Penitentiary, 331 F.2d 842 (4th Cir.1964), the court opined: “[T]he effect of the nondisclosure [is not] neutralized because the prosecuting attorney was not shown to have had ²¹⁵ knowledge of the exculpatory evidence. Failure of the police to reveal such material evidence in their possession is equally harmful to a defendant whether the information is purposely, or negligently, withheld.

And it makes no difference if the withholding is by officials other than the prosecutor. The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State’s Attorney, were guilty of the nondisclosure.... If the police allow the State’s Attorney to produce evidence pointing to guilt without informing him of other evidence in their possession which contradicts this inference, state officers are practicing deception not only on the State’s Attorney but on the court and the defendant. ‘The cruelest lies are often told in silence.’ If the police silence as to the existence of the reports resulted from negligence rather than guile, the deception is no less damaging....” 831 F.2d at 846. The main disagreement we have with the State is the State’s attempt, as the post conviction court did, to bring the participation requirement, which plainly applies to actors outside the State’s Attorney’s Office, into the prosecutor’s office itself.

The State would require that, in order for Brady to apply, both persons outside of the prosecutor’s office and those within the office must possess some involvement link to the case at hand. The State suggests that case law from other jurisdictions supports this interpretation. Upon our review of the cases it cites, however, we believe the State’s reliance to be misplaced. The State cites first to three Massachusetts cases: Commonwealth v. Daye, 411 Mass. 719 , 587 N.E.2d 194 (1992), Commonwealth v. Tucceri, 412 Mass. 401 , 589 N.E.2d 1216 (1992), and Commonwealth v. Sleeper, 435 Mass. 581 , 760 N.E.2d 693 (2002).

Each of these cases involves an office outside of the prosecutor’s office, or persons not in that office, and the applicability of Brady is based on the subject office’s or person’s participation, or lack thereof, in the subject prosecution. These cases stand for the proposition that persons outside of the prosecutor’s office must be involved in the ²¹⁶ prosecution of the case at issue in order that the disclosure obligation under Brady apply to them. We reject, however, the State’s use of these cases to imply that such a participation requirement equally applies within a prosecutor’s office; they clearly do not stand for that conclusion. In Daye , a murder case, the defense argued that the Essex County District Attorney failed to disclose investigatory evidence held by Boston police officers, a separate county, regarding possibly related murders.

Despite the arguments made by the defense that the two counties were acting jointly, the Massachusetts court held “[w]e have examined the record and we are satisfied that it does not warrant the conclusion that a joint investigation was conducted.... Nothing in the record suggests that the prosecutor in this case has access to the Boston police department files.” 587 N.E.2d at 203 . The court then refused to impute the knowledge of the Boston police to the Essex County District Attorney. Daye , the State contends, stands for the proposition that, for Brady purposes, information possessed by police officers could only be imputed to the prosecutor if the police officers were involved with the case and, thus, under similar logic, individuals within the prosecutor’s office, including other prosecutors within that office, are held to the same standard.

We disagree. The circumstances surrounding this case are different than in Daye ; in this case, the information was not possessed by someone outside the State’s Attorney’s Office, but, instead, by another prosecutor within the same office. Moreover, the Daye court’s refusal to impute information in the possession of persons acting outside of the prosecutor’s office, and not involved with the case, to those in the office, who were involved, is not inconsistent with our reading of Maryland Rule 4-263(g). The other two Massachusetts cases, Tucceri and Sleeper , do little to support the State’s position.

In Tucceri , the State failed to disclose photographs that were taken of the defendant at the time of his arrest by the Cambridge police department. While acknowledging that new trials should not ²¹⁷ be granted unless there are substantial reasons for doing so, the Tucceri court agreed that the nondisclosure of the photographs was enough to warrant a new trial, and took the opportunity to comment: “[P]rosecutors, who are agents of the State and often have access to information that defendants may not have, should be encouraged to disclose exculpatory evidence that in