Baltimore State's Attorney Marilyn Mosby is set to appear in city Circuit Court on Friday morning to address allegations that she violated a court order in the controversial criminal cases of Keith Davis Jr.
The lame duck prosecutor faces allegations that she twice violated an order prohibiting lawyers and legal staff involved in Davis' murder and attempted murder cases from making comments outside of court "intended to influence public opinion regarding the merits of the cases."
Circuit Judge John Nugent issued the so-called "gag order" June 7 as public discourse about the case approached a crescendo while Davis's fifth murder trial loomed and Mosby sought a third term in office.
Davis' attorneys accused Mosby of violating the order within about an hour of it taking effect. That morning, the two-term prosecutor went on the Baltimore public radio station WYPR-FM 's "Midday" program and responded to a question from host Tom Hall about her office's repeated prosecutions of Davis. The defense asked Nugent to hold Mosby in contempt of court and to dismiss Davis' charges.
Nugent found that the allegation was "not frivolous on its face" and issued another order requiring Mosby to come to court to explain why she shouldn't be held in contempt. That order was June 21.
About two weeks later, Davis' lawyers were bringing attention to a comment Mosby made on social media and accusing her of violating the gag order again. The popular Instagram account @murder_ink_bmore posted a video July 3 about Davis' case. One person commented on the post that Mosby lost her vote because of the repeated prosecutions of Davis.
With the Democratic primary set for July 19, Mosby responded that the person "shouldn't believe everything you read."
Mosby finished last place in the primary, with defense attorney Ivan Bates winning by a comfortable margin. Nobody is slated to challenge him on the ballot in November. The city's state's attorney-to-be has previously vowed to dismiss Davis's charges if elected. A fifth murder trial for Davis was recently scheduled for May.
In response to the allegations that their boss violated the gag order, Mosby's prosecutors said her comments on the radio were not directly related to the case or willful. They had previously noted in court that Mosby mentioned neither Davis nor Kevin Jones, the Pimlico Race Course security guard who police and prosecutors say Davis gunned down in 2016, by name.
But Davis' attorneys pointed out in subsequent papers that Mosby referred to specifics about his case and acknowledged knowing about the gag order before responding to the radio host's question. They said Mosby's comment on social media buoyed their arguments about her conduct being in violation of an order her prosecutors asked for.
"Ms. Mosby's unrestrained, continued conduct on [Instagram], wherein she encourages the general public to disregard assertions about Mr. Davis's innocence and refutes comments about the facts of the case clearly demonstrate an ongoing controversy that's likely to continue," the defense lawyers wrote.
The back-and-forth has added fuel to a contentious legal saga spanning seven years.
Over that time, Mosby has engaged in heated exchanges with Davis' supporters and pushed back on calls to drop his charges. Mosby said her office is committed to the prosecution because it is seeking justice for the family of Jones.
Comments by Mosby and some of her deputies served as part of the foundation for the defense's argument that Davis is being prosecuted again and again because of Mosby's animus for him. They asked for Davis' charges to be dismissed.
Mosby's prosecutors refuted those claims.
But, in a ruling rarely issued in the courts, Nugent found the defense had shown a "presumption of vindictiveness" underlaid Davis' attempted murder case. He stopped short of dismissing that case, but expressed concerns about the timing of the charges: Mosby's office filed them about a year after an alleged jail fight and less than two weeks after Davis won a fifth murder trial.
Nugent's order requires that prosecutors turn over potential evidence of animus to the defense. It's unclear when that legal matter will come up in court.
Davis' four murder trials went like this: His first, in 2017, resulted in a hung jury. After his second trial the same year ended with a conviction, a judge threw it out, finding prosecutors had withheld information from the defense. A jury deadlocked in his third murder trial. His fourth, in 2019, resulted in a guilty verdict that later was reversed.
Under Mosby, prosecutors filed murder charges against Davis a week after he was mostly absolved in an attempted armed robbery case stemming from an incident later in the same day Jones was killed.
Suspecting Davis of robbing an unlicensed cabdriver and alleging he was armed, police chased him into an auto garage and fired 32 rounds at him, striking him three times. Police said they found a handgun in the garage after the first shooting by officers since the death of Freddie Gray in police custody.
At a trial on armed robbery charges, a jury acquitted Davis on every count save being a prohibited person in possession of a firearm. But police and prosecutors say the handgun was used to shoot Jones, though the testimony of the firearms examiners who claimed the ballistics matched is facing criticism.
Aside from her expected court appearance Friday, Mosby is facing federal perjury and mortgage fraud charges. She was indicted in January and is scheduled to stand trial in September.
This article will be updated.