For a second time, a Baltimore judge declared a mistrial after jurors were unable to reach a unanimous verdict Thursday for Keith Davis Jr., who has been tried three times in the killing of a Pimlico security guard three years ago.
A spokeswoman for the Baltimore state’s attorney’s office would not say Thursday if the office will pursue a fourth murder trial for Davis, who has maintained his innocence. However, a November court date has been scheduled.
Prosecutors alleged that Davis, 26, of Columbia, fatally shot Kevin Jones as he was walking to his job at the track on June 7, 2015. Hours after the killing, prosecutors said, Davis ran from a robbery and was chased by police, who shot and wounded him in a nearby garage.
Almost a year later, police said a .22-caliber pistol they recovered from where Davis was shot matched the gun used to kill Jones.
Davis’ first trial in May 2017 ended in a mistrial after jurors deadlocked. He was found guilty of second-degree murder last October, but a judge reversed the conviction and ordered a new trial because information about a key witness was not disclosed.
“I’ve very saddened there was a mistrial in this case,” Davis’ attorney, Natalie Finegar, said outside the courthouse Thursday. “I actually think it should have been dismissed with prejudice very early on.”
Finegar cited three surveillance videos from near where the shooting occurred that the state had not previously disclosed.
“It was one of the worst discovery violations I’ve actually seen in my career as a criminal defense attorney,” she said.
She said Davis is “exhausted” after having to go through another trial. “Imagine having your life hanging in balance for three years while you are waiting for the outcome of this trial,” she said.
The case has drawn strong reaction from Davis’ family and local activists who have criticized police and accused the state’s attorney’s office of prosecuting Davis unfairly a third time.
Davis’ wife, Kelly Davis, and the activists attended every day of testimony, and have confronted State’s Attorney Marilyn J. Mosby about the case at public events as she seeks reelection in the Democratic primary Tuesday. Without a Republican challenger, the primary will decide the city’s top prosecutor.
Kelly Davis wrote on Twitter Thursday, “Keith will not be coming home today,” but she vowed to fight for his freedom.
Melba E. Saunders, a spokeswoman for the state’s attorney’s office, said the office is reviewing its options.
“We are committed to obtaining justice for the victim in this case, so we will re-assess and make a determination about the next steps soon,” she said in an email.
Several relatives of Jones, including his mother, attended the trial, but could not be reached for comment Thursday.
A fourth trial would be unusual but not unprecedented. Last year, jurors convicted Gregg Thomas of attempted first-degree murder in the 2014 shooting of Baltimore Police Sgt. Keith Mcneill. Thomas’ first three trials ended in mistrials.
The state’s case against Davis relied largely on firearms analysis and cell phone location records. Prosecutors said Davis’ handprint and DNA were on the murder weapon. And they noted that the gun was empty when it was recovered by police, but could hold 11 bullets, which assistant state’s attorney Andrea Mason said were fired into Jones, who was shot 11 times.
Mason said cellphone records showed Davis in the area where Jones was shot, and that Davis had been texting two people consistently until the shooting, and then stopped.
“There is dead time for more than an hour,” Mason said during closing arguments.
Finegar questioned the evidence in her closing arguments, arguing that cellphone records could only provide a general area, and did not place her client in the location of the killing. She said a lack of gunshot residue on the recovered weapon showed that the gun was never fired. She also questioned why there was blood on the gun, but not on top of the refrigerator in the garage where it was found, suggesting it had been placed there afterward.
“Interesting inconsistencies,” Finegar told jurors.
The police-involved shooting that injured Davis in June 2015 was the first since the death of Freddie Gray from injuries suffered in police custody and the days of protests and unrest that followed that April. At the beginning of the trial, Finegar told jurors how the investigation of the police-involved shooting of her client fell by the wayside, but that investigators relentlessly pursued Davis in Jones’ death.
The most controversial evidence from the five days of testimony at Davis’ latest trial was surveillance video from a convenience store on Park Heights Avenue, across an intersection from the Pimlico parking lot where Jones’ body was found.
During testimony by Batimore Police homicide Det. Mark Veney, Finegar accused the state of discovery violations for failing to disclose that and two others, one from the race course and another from a nearby convenience store, which had not been discussed at previous trials.
Mason said the videos were not considered to have evidentiary value, but Finegar questioned why investigators did not attempt to speak with people seen in them.
In the one convenience store video, Finegar pointed to a man wearing a dark shirt, jeans and white tennis shoes walking down the street just before the shooting, who appeared to be pulling a mask over his face. Finegar said the unknown person’s description did not match her client, and said it could have been the gunman who shot Jones or a potential witness, and should have been explored by investigators and turned over to the defense months before.
Finegar called it “an egregious” discovery violation, and asked the judge to dismiss the case.
Circuit Judge Althea Handy agreed that the state should have disclosed the videos previously to the defense, but found it was “an unintended” nondisclosure. She also permitted Finegar to show the videos to jurors during cross-examination of Veney, and instructed jurors on the issue.
In her closing arguments, Mason said that the unknown man seen in the surveillance video walking near where the shooting occurred was Davis. She noted he was wearing similar ripped jeans and white tennis shoes with black markings when he was arrested. But Finegar said the unknown person did not resemble her client, saying the shoes had different markings and police never recovered a shirt from Davis.
At Davis’ second trial, prosecutors had brought forward an inmate who claimed Davis confessed to him. But a judge later reversed the conviction, saying jurors received a “sanitized” version of the inmate’s criminal record, which could have prompted questions about his credibility.
David Gutierrez, the jailhouse witness, testified again at the latest trial. Finegar questioned Gutierrez on the stand about his motivation for testifying, which Gutierrez agreed was partially an effort to lessen his sentence and return home to his family in Texas. Gutierrez was at the Jessup Correctional Institution in 2017 when he claimed he met Davis through his cellmate who made homemade alcohol.
Finegar called the cellmate, Itisham Butt, as a witness on Monday. Butt denied making alcohol or that Davis ever came to his cell, saying security procedures at the prison prohibited it.
Davis was previously acquitted by a jury on 14 of the 15 counts relating to the robbery that initiated the chase by police. He was convicted of unlawful possession of the handgun that was found inside the garage and received a mandatory five-year sentence. Davis has maintained that he was walking in Northwest Baltimore holding his phone when police yelled “gun” and began chasing him.
Finegar said on Thursday that her client had served his sentence for the gun charge, and that she would pursue bail for him.
“It’s the most appropriate thing if they are not going to dismiss this case,” she said.