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Trial begins in prosecutor’s suit over firing by Mosby

Baltimore City State's Attorney Marilyn Mosby. (File photo)

Baltimore City State’s Attorney Marilyn J. Mosby. (File photo)

A Baltimore jury will decide if State’s Attorney Marilyn J. Mosby violated the Maryland Constitution when she fired a line prosecutor who campaigned for her opponent in the 2014 election.

Keri L. Borzilleri’s lawsuit against Mosby began in federal court in 2015. A U.S. District Court judge dismissed her First Amendment claims and the dismissal was affirmed by the 4th U.S. Circuit Court of Appeals in 2017.

Borzilleri then filed suit on her state law claims in Baltimore City Circuit Court in 2018. A multi-day jury trial began Monday before Judge Shannon E. Avery. A jury was seated late Monday afternoon and proceedings are expected to resume Tuesday morning.

Borzilleri alleges free speech retaliation in violation of the Maryland Declaration of Rights and common law abusive discharge.

She was fired days after Mosby took office in January 2015. A career prosecutor, Borzilleri had worked in the office for more than nine years with “exemplary” performance, according to the complaint.

When Mosby challenged State’s Attorney Gregg Bernstein in the 2014 Democratic primary, Borzilleri offered to assist with his campaign and, while she held no title or official position with the campaign, she did not hide her support, hosting a meet-and-greet event and attending community meetings with Bernstein, according to the complaint.

After Mosby won, Borzilleri and other career prosecutors who had openly supported Bernstein were fired, according to the complaint.

“Ms. Mosby has not offered a coherent explanation for why she fired these prosecutors,” the lawsuit states.

Mosby moved to dismiss the lawsuit last year and argued that the logic of the federal court — which found Borzilleri’s free speech rights were trumped by Mosby’s right to assemble a team of prosecutors she could rely on to carry out her policies — applied to the state claims. A judge denied the motion, finding the state’s constitution and laws provided greater protections than federal law.

In a motion for summary judgment in January, Mosby argued that Borzilleri was a policymaker within the office and represented the state’s attorney in the courtroom and in the community. Borzilleri’s support for Bernstein had the potential to impede the performance of her duties and interfere with the operation of the agency under Mosby, according to the motion.

“Given this important public contact role, Ms. Mosby was entitled to conclude that Ms. Borzilleri’s support for the prior State’s Attorney would make her less effective as a proxy for the current State’s Attorney,” Mosby argued in the motion.

Mosby also argued that Borzilleri failed to state a claim for abusive discharge because she could not point to a public policy that precludes a state’s attorney from terminating an assistant state’s attorney for supporting a political opponent.

The defense motion for summary judgment was denied earlier this month.

The case is Keri L. Borzilleri v. Marilyn J. Mosby et al., 24C18000010.

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