Baltimore State’s Attorney Marilyn Mosby violated a court order last month when she commented about Keith Davis Jr.’s controversial criminal cases on social media, a judge ruled Friday, holding the city’s top prosecutor in contempt of court.
Circuit Court Judge John Nugent fined Mosby $1,500 but said she could avoid that fee if she abided by a more restrictive “gag order” for 90 days. Rather than restraining from comments intended to sway public opinion, as Nugent’s first order required, Mosby would not be allowed to say anything about the case at all under the judge’s proposed mandate.
Mosby, a Democrat in her second term as state’s attorney, did not take the witness stand during Friday’s hearing. She observed arguments from the audience.
Nugent issued the original gag order June 7 as public discourse about the case approached a crescendo with Davis’ fifth murder trial looming and Mosby seeking a third term in office.
The order, which Mosby’s prosecutors requested, barred attorneys and legal staff from making comments outside of court “intended to influence public opinion regarding the merits of the cases.”
Davis was charged with murder after a fatal shooting in 2015 and with attempted murder in 2021 following an alleged jail fight. He has been tried four times for the homicide, with his supporters decrying the repeated prosecutions and becoming a thorn in Mosby’s side. She vowed to secure a conviction for Kevin Jones, the Pimlico Race Course security guard who her office says Davis killed.
“I am trying, by issuing the gag order, to ensure there is a fair trial for everyone,” Nugent said Friday.
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 dismiss Davis’ charges and to hold Mosby in contempt.
Despite his making “clear the gag order was immediately effective and in no uncertain terms applied to State’s Attorney Mosby,” Nugent said he was giving Mosby the “benefit of the doubt” for speaking about the case on the radio because he had not yet written the order by the time she spoke, only voiced his ruling in court.
But a few weeks after Mosby’s radio appearance, the defense brought 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.”
Nugent said he viewed Mosby’s social media post differently than her radio appearance because she surely had an opportunity to view the order. He said he believed it was intended to sway public opinion about the case.
“I cannot see the social media comments on Instagram as anything other than a willful violation of this court’s gag order,” he said.
Erin Murphy, chief counsel for the State’s Attorney’s Office, argued in court on Mosby’s behalf. While she conceded Mosby’s response on social media was “unwise,” Murphy said that the comment was about her election rather than Davis’ case.
“Why would you possibly go on that website with a gag order in place and the contempt issue pending?” said Nugent, noting that Davis’ lawyers already had accused Mosby of violating his order.
Public defender Deborah Katz Levi described the comments by Mosby, who she described as the foremost law enforcement authority in the city, amounted to an assault on Davis’ presumption of innocence.
She urged Nugent to dismiss the cases or to hand down one or more of her proposed penalties: A $10,000 fine held in escrow until the cases concluded, a public apology by Mosby made “on the steps of the courthouse with the press surrounding” or additional questions during jury selection about whether prospective jurors had heard Mosby’s remarks.
“There was a clear violation of this court’s order ... there must be a sanction,” Levi said.
Davis’ wife, Kelly, cheered Nugent’s ruling after court alongside several supporters and activists who have persistently called on Mosby to “Free Keith Davis Jr.”
“I’m happy that today a judge decided that his presumption of innocence was more important than an elected official or them believing they are above the law,” Kelly Davis said.
Though Nugent did not dismiss either of Davis’ pending cases, there already were questions about what will happen to them under state’s attorney-to-be Ivan Bates.
Mosby finished in last place in the Democratic primary, with Bates, a defense attorney, winning by a comfortable margin. Nobody is slated to challenge him on the ballot in November. On the campaign trial, he vowed to drop Davis’ charges. A fifth murder trial for Davis was recently scheduled for May.
The back-and-forth over Mosby’s comments 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.
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.
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But, in a ruling rarely issued in the courts, Nugent found the defense had shown that a “presumption of vindictiveness” underlaid the attempted murder case against Davis. 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 previous 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. It was the first shooting by officers since the death of Freddie Gray in police custody. Police said they found a handgun in the garage.
At a trial on armed robbery charges, a jury acquitted Davis on every count save 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 is facing criticism.
Aside from Friday’s finding that Mosby violated an order in Circuit Court, she is facing federal perjury and mortgage fraud charges. She was indicted in January and is scheduled to stand trial in September.