Plea negotiations in the murder case against Keith Davis Jr. fell through Tuesday morning, with Baltimore prosecutors rejecting a counter-offer from the defense that would have seen Davis go free relatively soon.
The deal, according to attorneys, would have seen Davis sentenced to 12 years in prison for the fatal shooting of Kevin Jones under an Alford plea, which allows a defendant to admit the prosecution has enough evidence to convict him at trial while maintaining his innocence.
Prosecutors said in the morning that Jones’ relatives “couldn’t understand” how 12 years was a sufficient penalty for their loved one’s killing and in the afternoon that the State’s Attorney’s Office also was unwilling to accept the offer. In December, Davis rejected a plea of 50 years in prison with all but 15 years suspended for the homicide and an allegedly unrelated jail fight he was involved in while awaiting trial.
The stalemate meant that the contentious legal battle would continue, with Baltimore Circuit Court Judge John Nugent already tossing out the state’s request to try Davis in another county on Monday.
Seeking to subdue some of the intense discussion surrounding a case that’s become a political flashpoint in the city, Nugent issued a ruling Tuesday that bars lawyers involved in Davis’ two cases, including Baltimore State’s Attorney Marilyn Mosby, from making certain statements about the case outside of the courtroom.
The so-called gag order outlaws “extrajudicial statements” intended to influence public opinion about the case. It applies to the defense lawyers and prosecutors, as well as their legal support staffs and court personnel.
Nugent issued the ruling in the late morning.
Subsequently, Davis’ attorney accused Mosby of violating the order within hours of it taking effect. Public Defender Deborah Katz Levi returned from a lunch break with a recording of the two-term Democratic state’s attorney’s lunchtime appearance on the Baltimore public radio station WYPR-FM.
Appearing on the station’s “Midday” program and fielding a question about Davis’ case from host Tom Hall, Mosby acknowledged that the judge already had granted a gag order at her prosecutors’ request. She did not address case specifics, but expressed a commitment for advocating for Jones’ family and other homicide victims.
Levi contended that the state’s attorney’s comments about Davis’ case, which spanned roughly 2 minutes, amounted to a violation of the judge’s gag order. She said in court that she plans to file a motion to hold Mosby in contempt.
Mosby’s prosecutors said their bosses’ statements would hardly influence public opinion about the case. A spokeswoman for Mosby did not respond to a request for comment Tuesday evening.
Earlier, the judge described his order as “narrowly tailored” and necessary because of the “overwhelming pretrial publicity” surrounding the case.
He stopped short of granting prosecutors’ request to restrict the comments of Davis’ wife, Kelly; activist DeRay Mckesson, who launched an information blitz about the protracted legal saga; and attorney Latoya Francis-Williams, Davis’ civil lawyer. Nugent said their speech was protected by the First Amendment.
Prosecutors brought the request for a gag order, accusing the defense of creating a one-side public discourse that would prejudice the city and potential jurors against the prosecution.
Nugent asked prosecutors about comments made by Mosby throughout Davis’ five criminal trials, including Mosby’s remarks Monday night while presenting her office’s budget request to the City Council’s Ways and Means Committee.
City Councilman Zeke Cohen, a District 1 Democrat, asked Mosby whether it was a responsible use of her office’s resources to try Davis for the fifth time for the same murder considering the shortage of prosecutors.
Mosby rebutted that Davis has been convicted before. A jury found him guilty of a gun charge in 2016, but two previous guilty verdicts in murder trials have been overturned by the courts. His two other murder trials resulted in hung juries. Mosby’s office vowed to retry Davis after the latest verdict was overturned last year.
“What I am going to do,” Mosby said, “and what I do for every victim in the city of Baltimore, and that’s to fight for Kevin Jones and his family who did not deserve to die over $12.”
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In court Tuesday, Levi seized on the elected prosecutor’s statement: She said she’d poured over every transcript in the case, and represented Davis through at least one trial, and found no mention of $12.
Levi accused Mosby of tainting the public record with a “material misstatement,” and argued Nugent should not bind the defense team with a gag order because Davis deserved an opportunity to correct the record within the rules of commenting on pending cases. If anyone was to be subject to the gag order, Levi said, it should be Mosby, who’s made an obscene gesture to a supporter of Davis and talked about his case several times publicly.
“A defendant is allowed to say ‘I’m looking forward to my day in court’ and ‘I’m innocent,’” Levi said. “If you want to gag anyone, gag Ms. Mosby from calling him a convicted murderer.”
Nugent found the best solution would be to constrain all parties.
“Certainly, the court would expect when someone moved for a gag order ... while the motion is pending, would refrain from making public comment,” he said. “I do not understand why the defense would object to a gag order and then object to the statements by Ms. Mosby.”
Mosby’s statements serve as part of a basis for Davis asking the judge to dismiss his cases for vindictive prosecution. The lawyers argued the complex, and rarely utilized, legal criteria Tuesday afternoon.
Nugent will issue a written opinion on the dismissal request at an undisclosed date.