BALTIMORE SUN: June 16, 2022: "Lawyers for Keith Davis Jr., the Baltimore man headed for a fifth trial in the same murder case, have accused State’s Attorney Marilyn Mosby of violating a gag order instituted in the case and asked a judge to hold the Democrat in contempt of court.
The motion, filed by Davis’ public defenders this week, figures to raise tensions in an already contentious legal saga, where comments made outside court have recently provided fodder for arguments in the case.
The allegations of wrongdoing also come at an inconvenient time for the city’s two-term elected prosecutor, who is seeking reelection against the backdrop of her federal indictment.
Davis’ case has been a thorn in Mosby’s side, as she has faced persistent calls to dismiss the 30-year-old’s charges rather than continue to prosecute him. Plea negotiations in the case broke down last week, and Davis is poised for a fifth murder trial in 2023.
Mosby’s comments about the case factored into a pair of hearings last week where a judge sought to subdue some of the public discourse by officials connected to the case.
Circuit Judge John Nugent issued a gag order June 7 prohibiting attorneys in the case and support staff from making “any extrajudicial statement ... intended to influence public opinion regarding the merits of the cases.”
Davis is also charged with attempted murder from an alleged prison fight, charges Mosby’s office filed almost a year after the altercation and weeks after his latest conviction was overturned.
Mosby’s prosecutors had asked the judge to issue the gag order but requested that it be extended to Davis’ wife, Kelly, and activist DeRay Mckesson, who has launched a public campaign to support Davis and pressure Mosby to drop his charges. Nugent found he had no authority over Kelly Davis or Mckesson, and that their commentary was protected by the First Amendment.
Within an hour of the order going into effect, Mosby appeared on the Baltimore public radio station WYPR-FM ’s “Midday” program. Host Tom Hall asked the state’s attorney questions on a range of topics, including the repeated prosecutions of Davis.
Mosby acknowledged that a gag order had been granted. She did not refer to Davis by name, nor his alleged victim, Jones. She expressed a commitment to advocating for Jones and others slain in the city. Mosby mentioned that a jury deadlocked in two of Davis’ trials and referred to his two overturned convictions. She said the office was committed to pursuing the case.
“Let me just be clear, I can’t talk about the specifics of that case, but I can tell you that we are going to fight and, if a case has nothing substantively to do with the fact that we believe this is the individual who committed the offense, we’re going to fight for justice for that family and that’s what I’ll continue to do for every family in the City of Baltimore,” Mosby said.
Davis’ attorneys, public defenders Deborah Katz Levi and Andrew Northrup, argued in court papers that Mosby’s comments were meant to convince listeners that Davis was guilty, while downplaying the reasons Davis was granted new trials. They wrote that Mosby’s comments tainted Davis’ presumption of innocence and amounted to a violation of Nugent’s order.
She could’ve declined to discuss the case, they wrote.
“When Ms. Mosby engages in discussion on a national public radio show to defend her decision to re-prosecute the case, she does so with the intention of making Mr. Davis look guilty, so as to justify her controversial decision,” Levi and Northrup wrote. “This dialogue surely comments on the merits of the case because it implies guilt and guilt or innocence is the only issue outstanding.”
Levi declined to comment. A spokeswoman for Mosby did not immediately respond to a request for comment.
In court last week, Mosby’s assistant state’s attorneys defended their boss’s dialogue on the radio, saying it was hardly meant to influence public opinion. They’ll have a chance to respond in writing to Davis’ motion, which seeks a hearing, an order requiring Mosby to appear in court to explain why she shouldn’t be held in contempt or for the charges against Davis to be dismissed.
American Bar Association standards say prosecutors should pursue charges only if they believe the evidence will lead to a conviction.
Maryland rules for attorney conduct limit what lawyers are allowed to say about a case in public, barring them from making statements that could prejudice a judge or jury. Prosecutors can make statements “necessary to inform the public of the nature and extent of the prosecutor’s action and that serve a legitimate law enforcement purpose,” but nothing “heightening public condemnation of the accused.”
Some experts say Davis’ repeated prosecutions are unprecedented in the courts. Mosby’s office disputes the historic significance of the forthcoming trial.
Jones was shot dead early in the morning of June 7, 2015. Authorities previously accused Davis of an armed robbery that occurred later that morning.
Police chased Davis into a garage, suspecting him of being the robber, and fired 32 rounds at him, striking him three times. Police said they believed Davis was armed, and that they found a handgun in the garage.
A jury acquitted Davis of every count in the armed robbery case except for being a prohibited person in possession of a firearm. Police and prosecutors say the handgun was used to shoot Jones, though the testimony of the firearms examiners who claimed the ballistics matched has been scrutinized. Seven days after Davis was largely absolved in the robbery case, he was charged with murder in Jones’ death.
Davis’ murder trials went like this: His first, in 2017, resulted in a hung jury. The same year, a second trial brought a conviction that was overturned when a judge determined prosecutors withheld information from his defense. A jury deadlocked on Davis’ third murder trial. His fourth, in 2019, led to a conviction, but it was again overturned.
Lawyers in the case are due in Reception Court on Aug. 3, though a consequential written ruling from Nugent is expected first on whether to dismiss the case because of vindictive prosecution or require the state’s attorney’s office to turn over internal communications and other potential evidence to the defense.
PUBLISHER'S NOTE: I am monitoring this case/issue. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
