U.S. District Court Judge Lydia Kay Griggsby ordered a postponement Wednesday of Baltimore State’s Attorney Marilyn Mosby’s upcoming perjury and mortgage fraud trial in part because of Mosby’s delayed disclosure of expert testimony.
Mosby, who will leave office in January, was scheduled to begin trial Monday and the postponement comes after the defense failed to disclose the details of its expert witness testimony by Griggsby’s mandated July 1 deadline. Mosby’s defense sent its last disclosure, at Griggsby’s direction, to prosecutors late Friday night.
Instead of selecting jurors for what would have been a three-week-long trial, the parties will reconvene at 2 p.m. Thursday to try and hash out a trial date for the third time.
“It’s regrettable that we are in the position we are in,” Griggsby said when announcing the postponement. “We are where we are.”
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A. Scott Bolden, Mosby’s lead defense attorney, said in and outside of court that a new trial needs to be scheduled as quickly as possible so she can get on with her life “good, bad or ugly.”
“My client’s been under investigation by the United States government for over 200 days,” Bolden said. “She’s got a family. She’s lost an election. She needs income after January 6 [when she leaves office], as you all well know. She’s ready for trial. She’s been ready for trial.”
Mosby, who was accompanied by husband, Baltimore City Council President Nick Mosby, declined to comment.
Federal prosecutors say Mosby lied about suffering financial hardship during the coronavirus pandemic to obtain early withdrawals from her city retirement savings account. According to Mosby’s indictment, she used the approximately $80,000 on two vacation homes in Florida and then misled lenders about her finances and plans for the properties on her mortgage applications.
Separately, Griggsby denied Mosby’s second attempt at having the perjury charges against her dismissed on the grounds the indictment against her was deficient. Griggsby said their arguments were not persuasive in terms of obtaining a dismissal and would be more appropriate for a jury at trial. Griggsby denied Mosby’s April attempt at having all the charges tossed on the claim that her prosecution was racially and personally motivated.
At issue Wednesday was the testimony of Mosby’s hired forensic accountant, Jerome Schmitt, who was expected to testify about Mosby’s personal businesses, her finances and the impact COVID-19 had on both the financial markets and Mosby’s personal travel and consulting businesses.
The defense said Schmitt would testify about how stock prices of large travel and hospitality companies, like Disney, had suffered during the early days of the pandemic, and then extrapolate that analysis to apply to Mosby’s Mahogany Elite Enterprises LLC, a fledgling, supposedly inoperable travel company she formed before 2020.
Lead prosecutor Leo Wise, in court, said the defense “ambushed” prosecutors with their late disclosure about Schmitt’s testimony, calling the idea the government could proceed to trial without preparing “ridiculous.”
Prosecutors sought to either ban Schmitt’s testimony in its entirety, something Griggsby seemed disinclined to agree with, or to get a postponement and hire their own expert for rebuttal. Wise said the government would need time to recruit and procure its own expert but did not offer a timeline.
Normally, the defense in a criminal case does not have to disclose what a witness will say in trial, but expert witnesses are different because they offer opinions, so the prosecution is supposed to be given a chance to prepare. Expert disclosures in the case were due July 1, per Griggsby’s order, but Schmitt’s full disclosure wasn’t sent to prosecutors until Friday, 10 days before trial.
Prosecutors, in court filings, had asked the defense for more extensive disclosures since July but had been met with opposition.
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Griggsby said the defense’s 11th-hour disclosure created a conundrum, and even if the government could find a witness in time for next week, Mosby would not have time herself to prepare for that testimony. The postponement, Griggsby said, was done to ensure the outgoing state’s attorney is given as fair a trial as possible.
Bolden disagreed with the characterization that the defense didn’t disclose testimony in a timely manner, but declined to say why he disagreed with the judge.
Schmitt’s opinions and testimony go to the heart of Mosby’s perjury defense and are central to the case, because he will testify the pandemic hurt Mosby’s businesses.
Mosby checked a box on a form requesting the retirement saving withdrawals under the federal CARES Act, Congress’s first pandemic relief package, claiming that she suffered an “adverse financial consequence” as a result of being furloughed or laid off, having reduced work hours, being unable to work due to a lack of child care, or if a business she owned had closed or taken a loss.
She made her first retirement account withdrawal under the CARES Act rules in May 2020.
Around that same time, Mosby, under fire for frequent out-of-state travel, asked the Baltimore inspector general for an investigation into her travel and consulting businesses to prove they existed in name only. The inspector general later found Mosby deducted $5,000 in business expenses on her federal taxes for losses associated with the travel business.
“I ask that you verify that I have not taken on a single client for these companies, nor have I taken in any money,” Mosby wrote in a July 2020 letter to the inspector general. “Any insinuation to the contrary is false, misleading, and unethical.”