Baltimore State’s Attorney Marilyn Mosby earlier this week commented on an Instagram post about the repeated prosecutions of Keith Davis Jr., potentially violating an order prohibiting lawyers involved with the case from talking publicly about it for a second time.
Attorneys for Davis cited Mosby’s comment in a legal paper supporting their argument earlier this month that she should be held in contempt of court. The new filing brings yet more attention to a case that has become a sore spot for the Democrat, who is seeking a third term as the city’s elected prosecutor.
Circuit Court Judge John Nugent found the original motion from the defense, which accused Mosby of violating the so-called gag order within an hour of it taking effect in June, was “not frivolous on its face” and ordered the state’s attorney to appear in court Aug. 12 for a hearing to explain why he shouldn’t hold her in contempt of court.
This time, Davis’ lawyers drew attention to Mosby’s social media comment. The Instagram account @murder_ink_bmore posted a video July 3 created by Campaign Zero, the nonprofit organization started by activist DeRay Mckesson, featuring audio from some of Davis’ five criminal trials, along with past video of Mosby talking about the case. A caption calls the repeated prosecutions of Davis “alarming persecution.”
The Instagram account has approximately 156,000 followers; one commenter said Mosby had lost her vote.
With the Democratic primary election looming July 19, Mosby’s official campaign Instagram account responded: “You really shouldn’t believe everything you read.”
Defense lawyers for Davis say that statement violated Nugent’s order and are using Mosby’s latest public comment to bolster their previous argument and undermine prosecutors’ rebuttal.
Issued June 7, the order bars attorneys involved in the case from making comments outside court “intended to influence public opinion regarding the merits” of Davis’ murder and attempted murder cases.
According to the latest defense motion, Mosby’s prosecutors argued that their boss’s comments last month on the radio were not willful or directly related to the case. They also said the defense argument was “moot” because Mosby’s radio interview was over and asked Nugent to withdraw his order mandating Mosby appear in court.
Davis’ lawyers argued the Instagram comment showed Mosby would continue to make extrajudicial statements about the case without the judge’s intervention.
“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,” Davis’ lawyers wrote.
Public defender Deborah Katz Levi declined to comment, as did a spokeswoman for the state’s attorney’s office, both citing the gag order.
Mosby’s prosecutors sought the gag order in the first place but asked that it be extended to Davis’ wife, Kelly, and Mckesson, the activist who launched a public campaign to support Davis and pressure Mosby to drop his charges. Nugent found he had no authority over Kelly Davis or Mckesson and that their commentary was protected by the First Amendment.
Within an hour of the order going into effect, Mosby appeared on the Baltimore public radio station WYPR-FM‘s “Midday” program.
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Mosby acknowledged that a gag order had been granted. She did not refer to Davis by name, nor his alleged victim, Jones. She expressed a commitment to advocating for Jones and others slain in the city. Mosby mentioned that a jury deadlocked in two of Davis’ trials and referred to his two overturned convictions. She said the office was committed to pursuing the case.
Davis has endured a protracted legal saga that has spanned six years.
Mosby’s office brought murder charges against Davis seven days after he was largely absolved in an armed robbery case, allegations that stemmed from an incident the same day as the fatal shooting. 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.
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 has been criticized.
His first murder trial, 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.
Mosby’s office charged Davis with attempted murder about two weeks after Davis won the latest retrial. The alleged jail fight happened almost a year before prosecutors approved charges. At first, prosecutors told correctional officials to withhold charges from the alleged fight.
Nugent separately found there was a presumption of vindictiveness in the attempted murder prosecution in part because of the timing of the charges. In the memorandum he authored explaining his opinion, which required Mosby’s office to turn over evidence of animosity, Nugent highlighted several of Mosby’s public statements about and spats over the case.