A federal judge has allowed Baltimore State’s Attorney Marilyn Mosby’s renewed push to have some of her charges dismissed to go forward, paving the way for another round of legal papers and, eventually, arguments in court.
U.S. District Judge Lydia Griggsby on Thursday issued an order granting Mosby the ability to go forward with a new argument for why two of the four charges brought against her should be dismissed.
In January, a federal grand jury indicted Baltimore’s two-term Democratic prosecutor on two counts of perjury, alleging that she lied about claiming financial hardship from the coronavirus pandemic to withdraw money from her city retirement account, and two counts of making false statements on loan applications to buy a pair of properties in Florida with the roughly $81,000 she drew from the retirement savings.
Initially, Mosby’s defense targeted the lead prosecutor, Assistant U.S. Attorney Leo Wise, and the U.S. attorney for Maryland, Erek Barron, with personal attacks. Her lawyers argued the case should be dismissed because the indictment was tainted by the alleged animus for Mosby harbored by Wise, Barron and other officials in the federal prosecutors’ office.
The prosecutors vehemently disputed the claims, and Griggsby wasn’t convinced by Mosby’s lawyers, calling portions of the defense argument “problematic.” She denied their motion, and kept the case on course for a trial currently scheduled for Sept. 19.
With the appearance of two new lawyers for Mosby, bringing her defense team to six attorneys, Mosby raised a new position earlier this month: The perjury charges related to her retirement savings withdrawals should be dismissed, the defense argued, because the language in the federal government’s guidelines for who was eligible for coronavirus relief was fundamentally ambiguous.
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The significance of the pleading was twofold: One, it marked a shift in her defense strategy from personal attacks to nuanced legal argument. Two, the assertions Mosby made to secure the retirement withdrawals go to the heart of the government’s case, and now prosecutors will have to defend those charges against a legal claim.
State and city employees cannot access their retirement accounts before retirement unless they stop working for the government or experience an “unforeseeable emergency.” Congress loosened those rules temporarily when it passed the CARES Act, meaning government workers could draw retirement funds by claiming a business they owned had to shut down or took a loss, or they had suffered “adverse financial consequences” because of COVID-19.
According to Mosby’s lawyers, that phrase is fundamentally ambiguous and she can’t be prosecuted for perjury under that language.
Because they filed the motion outside of Griggsby’s deadlines, Mosby’s lawyers needed permission from the judge to allow the argument to proceed. That meant Griggsby had to find the defense presented good reason to file something outside of the schedule she mandated. The defense argued there was ample time before trial to handle the matter, and that they’d presented a new and legitimate legal argument.
The government has until June 30 to respond in writing to the defense’s new motion to dismiss the indictment, and Mosby has until July 8 to reply to that.
Mosby is running for reelection, with the primary set for July 19. She faces two familiar challengers — Ivan Bates and Thiru Vignarajah — and is experiencing a prosecutorial staffing shortage at her office, along with low morale.
According to Griggsby’s most recent scheduling order, the lawyers are next due in court Sept. 14.