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Judge won’t toss Davis murder case but finds ‘presumption of vindictiveness’ in other charges

The 2015 murder charges against Keith Davis Jr. can proceed to a fifth trial, a Baltimore circuit judge ruled Thursday, but prosecutors will have to turn over evidence to prove they did not act vindictively when they added more recent charges involving a prison fight that took place in 2020.

Judge John Nugent’s finding of a “presumption of vindictiveness” in newer case is a highly unusual rebuke for the Baltimore State’s Attorney’s Office, which has aggressively pursued charges against Davis over the protests of his family and supporters.

“While the State’s Attorney’s Office has vigorously defended its prosecutorial decision, the record demonstrates a history of antagonism towards Mr. Davis and his supporters,” Nugent wrote. “The incidents in isolation might be construed as benign but taken together as a whole establish a pattern of hostility.”

Judges generally refrain from involving themselves in prosecutorial decisions, said David Jaros, the faculty director of the University of Baltimore School of Law’s Center for Criminal Justice Reform.

“This is pretty astonishing,” Jaros said. “I don’t know of any case in Maryland where, pretrial, they have found a presumption of vindictiveness, so this is really pretty significant.”

The finding means that the defense can collect discovery about charging decisions in the case and that prosecutors now have the burden of proving they did not act vindictively at an evidentiary hearing. That hearing has not yet been scheduled.

Nugent rejected a request to dismiss Davis’s original murder case, for which he is expected to go on trial for a fifth time next year. Nugent found the defense did not prove Davis is being prosecuted vindictively in that case.

Davis has been tried four times in the fatal shooting of Pimlico Race Course security guard Kevin Jones. Two of his earlier trials ended in hung juries, and two others ended in convictions but were later overturned. Davis was also tried and acquitted of an alleged robbery on the same day Jones was killed, June 7, 2015.

Prosecutors charged him with attempted murder in the prison fight last year, just weeks after a Baltimore judge threw out Davis’s most recent conviction in the Pimlico murder case.

Nugent found that the timing of the charges, and the fact that prosecutors in the Pimlico murder case met with prison investigators and advised them to charge Davis in the prison fight soon after Davis was granted a new trial, showed evidence of vindictiveness.

“It is evident to the Court that the State’s Attorney’s Office had a personal stake in the outcome of Mr. Davis’s prior request for a new trial and an interest in self-vindication in its continued prosecution of him,” Nugent wrote.

The ruling is another blow to prosecutors and Baltimore State’s Attorney Marilyn Mosby, who has repeatedly defended her handling of the case in public comments.

Nugent ruled last week that Mosby must appear in court to explain why she should not be held in contempt for discussing Davis’s case after a gag order had been issued.

Nugent previously granted prosecutors’ request for a gag order — though he declined to include Davis’s wife, Kelly Davis, and activist DeRay Mckesson, who are involved in an effort to bring public attention to the case — in the late morning of June 7. Mosby was included under the order.

Shortly after the ruling, Mosby appeared on WYPR’s “Midday” show and responded to a question about the Davis case from host Tom Hall. Mosby acknowledged that a gag order was in place.

Mosby did not discuss the case in detail, but made comments about how she would go to trial four or five times as part of her effort to get justice for crime victims. She also referenced the outcomes of Davis’s past trials.

Mosby must appear in court for the contempt hearing on Aug. 12, Nugent ordered.