Judge to consider criminal contempt for Marilyn Mosby’s defense attorney, won’t move trial from Baltimore

A federal judge on Tuesday issued a gag order and threatened to hold A. Scott Bolden, the lead defense attorney for former Baltimore State’s Attorney Marilyn Mosby, in criminal contempt of court, potentially removing him from the case.

U.S. District Judge Lydia Kay Griggsby blocked lawyers for the prosecution and the defense from making statements about the perjury and mortgage fraud case, or releasing information with the intent to prejudice jurors. More specifically, Griggsby prohibited Mosby’s attorneys from claiming the case against the Democratic former prosecutor is racially motivated.

Griggsby also denied Mosby’s motion to have her trial moved out of Baltimore, to Greenbelt, citing a lack of evidence for needing to do so. However, she left the door open for attorneys to try again if they are unable to seat an impartial jury ahead of the trial scheduled for late March.

Mosby’s attorneys wanted the trial moved to the federal court’s southern division in Maryland because they felt the Baltimore-area juror pool was prejudiced against her, with many having made their minds up about the two-term prosecutor’s innocence based on local news coverage and her notoriety.

“Notoriety alone is not enough to justify a transfer of venue,” Griggsby said.

The gag order comes after prosecutors asked for one in September, immediately following Bolden’s profane comments about prosecutors’ request for a continuance.

On Sept. 14, the eve of trial, Griggsby postponed the case because Mosby’s lawyers did not turn over expert witness information in a timely fashion, leading prosecutors to request a delay. Bolden, standing on the courthouse steps, called the government’s request and subsequent postponement “bulls---,” while also suggesting that the U.S. Attorney’s Office in Maryland was targeting African American government employees for prosecution. He apologized for the profanity in court the next day.

Griggsby said Tuesday that the comments were “hurtful” not only to her, but to court staff and the institution itself.

Bolden’s September remarks were the latest in a series of claims that Assistant U.S. Attorney Leo Wise’s prosecution of the former Baltimore state’s attorney was racially motivated.

“The court issued a ruling that found there was no evidence to support those statements,” Griggsby said Tuesday, referencing an April hearing where she denied Mosby’s request to dismiss her charges on the grounds she was being prosecuted for racist and vindictive reasons.

Bolden has until Jan. 31 to explain, in writing, why Griggsby should not hold him in criminal contempt of court for using profanity in criticizing the court, why he divulged confidential juror information in a court filing and why he filed court papers without a Maryland lawyer signing on with him. Because the Washington, D.C.-based attorney is not licensed to practice in Maryland, Bolden needs to co-file all papers with someone who is, per the court’s rules of attorney conduct.

Walking out of court Tuesday, neither Mosby nor Bolden offered comment, with Mosby only nodding yes when asked if she was confident about her upcoming trial.

Bolden’s antics may have an impact on the trial itself, and Mosby may not believe she is getting a fair trial if the judge is mad at her lead attorney, said Andrew I. Alperstein, a prominent local defense attorney and former CNN legal analyst.

“Certainly Marilyn Mosby is entitled to a fair trial,” said Alperstein, adding that she might want to change lawyers, which could postpone the case for a third time.

“I’ve seen it happen, where a client loses confidence in their lawyer because of [contempt] findings against them,” he said.

Because he may be held in criminal contempt, Bolden is afforded due process, meaning he is able to hire a lawyer to represent him and will have a hearing. If he is found in criminal contempt, the severity of penalties vary: He could be removed from the case, prohibited from practicing in Maryland, referred to the U.S. Attorney’s Office for prosecution or even made to spend time in jail.

Bolden apologized again Tuesday, saying his actions to date were never meant to offend or violate any rules, while also conceding that in zealously representing his client he likely had stepped out of bounds.

“It certainly was not my finest hour,” he said.

Bolden said the gag order Griggsby issued was sufficient, and that he would not offend again. A hearing date for his potential contempt has not been set and would be separate from Mosby’s criminal proceedings.

The cursing, while regrettable, is a byproduct of a “frustrated” lawyer under “a lot of stress,” Alperstein said.

However, the court filing without a Maryland lawyer’s signature — a response to the government’s request for a gag order in which Bolden and fellow D.C.-based attorney Anthony Todd divulged confidential juror responses to a pretrial questionnaire — presents a procedural issue for the court.

Griggsby had the filing removed from the court record, and Alperstein said the lack of other lawyers’ signatures is “telling” about how they may have viewed the filing’s content.

“I find it curious that the other four lawyers who are on the other pleadings didn’t sign on to that specific one,” Alperstein said.

Bolden, in remarks to Griggsby, said the defense is unified and while the other lawyers’ signatures were missing, they were still a part of it.

Mosby herself was previously subject to a gag order and was subsequently held in contempt of court. In August, a Baltimore Circuit Court judge held her in contempt of court, finding that she violated a gag order in the controversial murder case of Keith Davis Jr.

Newly sworn-in Baltimore State’s Attorney Ivan Bates dismissed Davis’ charges last week — he had been tried four times for the same murder — citing what he called Mosby’s vindictive prosecution of him over the years.