A “Double or Nothing” Gamble Often Yields Nothing

When a litigant seeks “a bridge too far,” it often fails.  Baker v. State, 2026 WL 1113401 (App. Ct. Md. Apr. 24, 2026), so held in a criminal context.  Mr. Baker sought drastic discovery sanctions.  He did not seek less drastic ones. He got nothing.[1]

The case arose out of a shooting that generated 21 cartridges from five firearms.

Detective McEvoy conducted another in-person meeting with Verosto, which was recorded on body-worn camera but never disclosed to the defense. The existence of this recording came to light unexpectedly during Verosto’s cross-examination at trial, when he testified that he had met with detectives for approximately an hour at a second interview and that the interview was also recorded. Defense counsel raised the issue at the bench, and the prosecutor initially said the recording did not exist.

After further investigation, it was confirmed that a body-worn camera recording of the August 4 interview did exist. The State obtained a copy and disclosed it to defense counsel…. [T]he trial court found the State was “just as surprised as everybody else” by its existence.

The recording contained testimonial inconsistencies and other possibly relevant information.

Mr. Baker moved for a mistrial.  “The trial court recognized a discovery error had occurred but asked whether there was any cure short of a mistrial.”  It then denied the request.  Mr. Baker was convicted.

“Baker contends the State violated its discovery obligations under Maryland Rule 4-263 by failing to disclose the August 4, 2022, body-worn camera recording of Detective McEvoy’s interview with Verosto until after the close of the State’s case-in-chief. He argues the late disclosure irreparably prejudiced the defense because it deprived him of the ability to use the recording during his opening statement and initial cross-examinations of Verosto and Detective McEvoy. Baker emphasizes that his opening statement ‘would have been different’ and that no remedy short of a mistrial could cure the prejudice.”

The State conceded that it had committed a discovery violation, but contended that a mistrial was not warranted.

The Appellate Court held that the remedy for a discovery violation is committed to sound discretion and courts should impose the least severe sanction that is consistent with the discovery rules.

Further, a defendant who rejects a tailored remedy in pursuit of the more drastic sanction, such as a mistrial, bears the consequence of that strategic choice on appeal…. “[I]f a defendant declines a limited remedy that would serve the purpose of the discovery rules and instead seeks the greater windfall of an excessive sanction, the double or nothing gamble almost always yields ‘nothing.’”…. [emphasis added].

Quoting an earlier decision, the Court wrote that “for a judge to declare a mistrial it’s tantamount to the captain ordering all hands to abandon ship….  Has the trial been thrown off balance by a patch of rough water or has it actually hit an iceberg? … Every mishap is not a catastrophe. Is the ship salvageable?”

Here, the Appellate Court held that, not only was it salvageable, but that Mr. Baker had rejected a lifeboat.  The Baker trial court had offered “an array of curative measures: additional time to prepare over the weekend, the opportunity to recross-examine both Verosto and Detective McEvoy, admission of favorable portions of the August 4 video through Detective McEvoy, curative instructions, and additional leeway in closing argument.”

Mr. Baker declined and the Court wrote: “That Baker chose not to avail himself of these remedies speaks to the actual degree of prejudice suffered and undercuts his claim that no cure short of a mistrial could suffice.”

Without minimizing the gravity of the situation, it can be unwise to try to shoot a mouse with an elephant gun.  In civil discovery, sometimes a litigant seeks “game ending” sanctions under Fed.R.Civ.P. 37(e)(2), but not lesser curative sanctions under Rule 37(e)(1).  That can also be a mistake. Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1) (May 19, 2025); Rule 37(e)(1) Sanctions for Breach of Duty to Preserve Communications (Oct. 11, 2025).

Baker is an unreported opinion. It may not be cited as precedent within the rule of stare decisis. It may be cited for persuasive value only if the citation conforms to Maryland Rule 1-104(a)(2)(B).

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[1] The phrase “a bridge too far” comes from the unsuccessful Allied airborne and glider operation in WW II.  A Bridge Too Far (film) – Wikipedia