The Maryland Attorney General’s Office has signaled that a fifth murder trial is likely in the controversial case of Keith Davis Jr., the man who was shot by police in 2015 and was later convicted of killing a Pimlico Race Course security guard.
The disclosure came from Davis’ public defender, Deborah Katz Levi, who read from pleadings filed by the Attorney General’s Office at a bail review hearing Wednesday morning. Davis’ appeal is still pending.
“The state agrees with Mr. Davis that ... it appears he is likely to succeed in obtaining a new trial in this appeal,” Levi told Circuit Court Judge Philip S. Jackson, quoting the pleading.
Levi asked that Davis be released from custody to avoid exposure to COVID-19, and pointed to the prospect of a new trial as one of the supporting reasons. Walking through Davis’ increased vulnerability to coronavirus due to asthma, Levi asked Jackson: “What if he dies before he is vindicated?"
Assistant State’s Attorney Patrick Seidel did not dispute the characterization of the Attorney General Office’s comments. But he called the issue a “technicality" and that Davis would be tried again on evidence he considers to be strong.
“The remedy [if the conviction is overturned] is not that the defendant goes home — it’s that we’re going to try him again,” Seidel said. “Mr. Davis belongs in jail for what he did.”
Seidel also said that early warnings that coronavirus would spread rapidly in prison and jails have not come to pass.
“We have over a month’s worth of data and the steps the Department of Public Safety is taking to ensure safety and health of inmates is working,” Seidel said.
State’s Attorney Marilyn Mosby has been calling for a thinning of jail and prison populations due to coronavirus concerns, instructing low-level offenders and others with medical conditions who meet certain conditions to be released. Seidel credited those efforts with helping contain a possible spread.
Davis has maintained his innocence through five trials, the first when he was charged with an armed robbery in the incident in which he was shot by police in June 2015. Davis was acquitted of the robbery but convicted of a gun charge. Police then charged Davis with the murder of security guard Kevin Jones, who was killed the night before Davis himself was shot by police.
Over heated protests of his supporters, Davis was sentenced to the maximum penalty of 50 years in prison.
The current move for a new trial focuses on a ruling by the state’s highest court related to pre-trial questioning of jurors, which Levi had raised during the latest trial. The Court of Appeals issued the ruling on the day of Davis’ sentencing.
Levi tore into Seidel, warning Jackson not to trust Seidel’s assertions and accusing him of misconduct in the case.
“I don’t know any other way to say this, the state is lacking in candor to this court,” Levi said. “This person is so wedded to the idea that he must win this case at any cost that he is failing to see the facts as they are.”
Seidel took on the case from another prosecutor following the third trial, and said previously that he conducted a fresh review with the intention “to prove Mr. Davis did not commit these crimes.”
“We did a fresh look on all this stuff, and what we ended up finding was more evidence of guilt,” Seidel said last year.
He was convicted on evidence that his clothing matched that worn by the killer in surveillance footage, that cellphone records placed him in the area around the time of the killing, and that police found him with the murder weapon. There was no alleged motive presented.
“Two separate juries have now convicted beyond a reasonable doubt — unanimous, 12-person juries who said this is the person who killed Kevin Jones," Seidel said.
Levi argued at trial that officers planted the gun to cover their tracks after shooting him. She presented the defense theory that police chased Davis, mistakenly thought he was armed and opened fire. They shot at him 30 times, hitting him in his face, neck and arm.
Jackson, the judge who heard arguments Wednesday, did not rule on the request that Davis be released on home monitoring. He previously denied the request. He said he would issue a written ruling by late Thursday.
Judges generally have ordered defendants facing serious charges to continued to be detained during the coronavirus pandemic.