Baltimore State’s Attorney Marilyn Mosby’s federal perjury and mortgage fraud trial is now set to begin March 27, more than a year after she was originally indicted and months after she will have left office.
U.S. District Judge Lydia Kay Griggsby ordered the new trial date Thursday, a day after postponing Mosby’s trial for a second time. The two-term Democratic prosecutor was scheduled to start trial Monday.
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The second postponement came after the defense failed to adequately 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 last Friday night — 10 days before the trial was supposed to begin. The defense asked for the first continuance in April after saying the prosecution had not turned over discovery fast enough for them to prepare for a May trial.
Lead prosecutor Leo Wise said Thursday that final disclosure by the defense was still insufficient, and is asking Griggsby to order Mosby’s attorneys to fully comply with the rules of evidence.
At issue is the testimony of Mosby’s hired forensic accountant, Jerome Schmitt, who will 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.
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. In Mosby’s case, the defense needs to supply the rationale behind Schmitt’s opinions.
Defense attorney Kelley Miller said in court 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, an allegedly inoperable travel company she formed in 2019. Miller compared Disney, as well as other large hospitality companies like MGM Resorts, to Mosby’s business.
“I have no idea how Walt Disney World is comparable to Mahogany Elite Enterprises and I have no idea why Mr. Schmitt thinks that,” Wise said.
Wise said Wednesday that the defense “ambushed” prosecutors with their late disclosure about Schmitt’s testimony, calling the idea the government could proceed to trial without preparing “ridiculous.” Miller said she felt her side had disclosed plenty, and pointed to a spreadsheet that offered limited details about the state of Mosby’s finances during the pandemic’s nascent days.
There is no publicly available information about the finances of Mahogany Elite Enterprises LLC, but Miller said Wednesday that Mosby had a business plan and a website developed. Schmitt is expected to testify that COVID-19 would have severely hampered Mahogany Elite Enterprises LLC’s ability to earn any revenue.
However, Mosby made statements in 2020 and 2021 that she never planned to operate the company while in office and had not taken on any clients. Her lawyers are seeking to suppress those statements from being introduced as evidence when she goes to trial.
Prosecutors had sought to either ban Schmitt’s testimony in its entirety, something Griggsby seemed disinclined to agree with, or to get the postponement and hire their own expert for rebuttal. Wise said the government would need time to recruit and procure its own expert, and Griggsby ordered prosecutors to finish that process by Dec. 1.
In a separate motion Wednesday morning, prosecutors asked Griggsby to issue a gag order prohibiting attorneys in the case from making out-of-court comments aimed at influencing potential jurors.
In the motion, prosecutors raised concerns about seating an impartial jury for Mosby’s trial, citing extensive media coverage. Responses to a questionnaire sent out to prospective jurors for Mosby’s trial showed the jury pool was familiar with the case because of what they’d read, watched or listened to, according to the government’s motion.
”[A] substantial portion of the individuals indicated they had already made up their mind about the case based on press coverage,” prosecutors wrote about the questionnaire.
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Prosecutors criticized lead Mosby attorney A. Scott Bolden for his comments to reporters on the courthouse steps after Mosby’s trial was delayed on Wednesday.
Bolden warned government employees to be wary of federal prosecutors, repeating unsubstantiated claims that the case against Mosby is the product of racial and personal animus the U.S. Attorney’s Office harbors against her.
Prosecutors said Bolden’s comment would taint the jury pool in Mosby’s favor.
”This case should be tried inside the federal courthouse, not on its steps,” prosecutors wrote.
In court Thursday, Bolden apologized to Griggsby for calling the postponement of Mosby’s trial “bull****” outside of the federal courthouse.
“I was very frustrated. I apologize again. It will never happen again. I am very disappointed in my choice of words,” Bolden told Griggsby.
As he led Mosby to her motorcade, Bolden said the defense attorneys planned to file a legal response to prosecutors’ request for a gag order.