Background
In August 2024, police responded to a 911 call and found James Houston and his wife Nancianne Houston in a pool of blood, both suffering multiple knife wounds. A knife remained in Nancianne’s chest; a second knife lay between them. Nancianne died at the scene. The State charged James Houston with first-degree murder and related offenses. Houston planned a self-defense theory at trial.
Seven weeks before the scheduled trial date, State’s Attorney Anne Colt Leitess conducted solo phone interviews of ten to fifteen potential witnesses, without investigators or co-counsel present. One witness, Steven Valladares, told her that Houston had said in 2023 that his wife had previously “pulled a knife” on him — information directly relevant to the self-defense claim. The State’s Attorney did not disclose this to the defense. Valladares then independently called defense counsel and disclosed the conversation himself. At a subsequent multi-day evidentiary hearing, the circuit court found a discovery violation, expressed broad skepticism about the State’s Attorney’s testimony, and invoked the advocate-witness rule (Maryland Rule 19-303.7) on the ground that she had made herself a likely necessary witness by conducting the solo interviews.
As a remedy, the circuit court issued two orders: (1) it disqualified the State’s Attorney from participating as an attorney in the case; and (2) it imposed a “complete and absolute firewall” between her and the prosecutors assigned to try the case, with only two narrow exceptions. The State appealed both orders. The Appellate Court of Maryland dismissed the appeal for lack of jurisdiction, concluding neither order was immediately appealable. The Supreme Court of Maryland granted the State’s petition for certiorari.
The Court’s Holding
The Supreme Court affirmed in part and reversed in part. As to the disqualification order, the Court held that it is not immediately appealable under the collateral order doctrine because it fails the third prong of the four-part test: the order does not resolve an issue completely separate from the merits. Determining whether the State’s Attorney was “likely to be a necessary witness” under Rule 19-303.7 required the circuit court — and would require a reviewing court — to predict how trial would unfold: whether Houston would testify, whether Valladares’s out-of-court statement would be admissible, and how various evidentiary rulings might be made. Those inquiries are inextricably entangled with the merits of the underlying murder prosecution. The Court noted that this result is consistent with Supreme Court of the United States precedent holding that disqualification orders involving attorneys who may need to testify are “inextricable from the merits” because they involve an assessment of the likely course of trial.
As to the firewall order, however, the Court held that it is immediately appealable. The firewall order raises a distinct structural question — whether a sitting elected State’s Attorney who has been deemed a witness may be walled off from her own office’s prosecution of a pending case — that can be evaluated without delving into how the trial will proceed. The Court concluded the firewall order satisfies all four collateral order prongs: it conclusively determined the disputed question, resolved an important issue (the State’s Attorney’s authority over her own office and the separation of powers between the judiciary and an elected executive officer), is completely separate from the merits, and would be effectively unreviewable after final judgment because the trial would have already occurred under the firewall’s constraints. The case was remanded to the Appellate Court for further proceedings on the firewall order.
Key Takeaways
- An order disqualifying a single prosecutor under the advocate-witness rule is not immediately appealable under Maryland’s collateral order doctrine because assessing whether the prosecutor is a “likely necessary witness” requires predicting the course of trial — making it inseparable from the merits.
- A companion firewall order restricting a disqualified State’s Attorney from participating in her own office’s prosecution raises a separate structural and separation-of-powers question that satisfies all four collateral order doctrine prongs and is immediately appealable.
- The collateral order doctrine applies especially strictly in criminal cases, given the strong public and defendant interests in speedy trial and the dangers of prosecutorial harassment through interlocutory delay.
- Cases holding that disqualification of an entire prosecutor’s office is immediately appealable do not automatically extend to the disqualification of a single prosecutor; the two situations are materially different for collateral order purposes.
Why It Matters
This decision draws a consequential line for Maryland practitioners: interlocutory appeals of individual prosecutor disqualification orders are categorically unavailable under the collateral order doctrine, meaning challenges to such rulings must await final judgment. The ruling limits the State’s ability to seek immediate review when a trial court removes a lead prosecutor mid-case — a restriction that carries real practical weight when, as here, trial is imminent and the double jeopardy bar could foreclose all post-acquittal review.
At the same time, the Court’s holding that firewall orders are separately appealable opens a narrow avenue for the State to obtain prompt review of sweeping judicial orders restricting communication within a prosecutor’s office. That distinction may encourage defense counsel to seek firewall relief as an alternative remedy when full disqualification cannot be immediately appealed, and it signals that Maryland courts will scrutinize broad judicial intrusions into prosecutorial office management as raising issues distinct from — and more urgently reviewable than — the underlying trial merits.