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Mosby fined $1,500 for ‘willful violation’ of gag order in Davis case

Baltimore State’s Attorney Marilyn Mosby. (AP Photo/Julio Cortez, File)

A Baltimore circuit judge fined city State’s Attorney Marilyn Mosby $1,500 Friday for willfully violating a gag order when she made a comment about a controversial homicide case on Instagram last month.

Mosby can avoid paying the fine by following an even more restrictive order to avoid making any comments about the case against Keith Davis Jr. for the next 90 days, Judge John Nugent ruled.

“I cannot see the social media comments on Instagram as anything but a willful violation of this court’s gag order,” Nugent said. He oversaw a hearing Friday to determine whether Mosby should be held in civil contempt for violating the gag order in the Davis case.

Mosby was present in the courtroom but did not have to testify or address Nugent. She shook her head as Nugent found that she had violated the gag order and she received permission from court deputies to leave the courtroom before any other members of the public after the hearing ended.

Mosby made the Instagram comment in early July, after a popular account posted a video asserting Davis’s innocence. A user tagged Mosby and commented that Mosby had lost her vote in the upcoming Democratic primary for Baltimore state’s attorney.

Mosby responded: “You really shouldn’t believe everything you read.”

Davis is set to face trial for a fifth time 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.

His case has become a high-profile cause for local activists who argue he is innocent and the charges should be dropped. Prosecutors requested a gag order to quell public commentary about the case ahead of Davis’s fifth trial.

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

Davis’s lawyers first asked Nugent to hold Mosby in contempt after she made comments on WYPR’s “Midday” show the same day the gag order was issued. She responded to a question about Davis from host Tom Hall.

Mosby acknowledged that a gag order was in place and did not discuss the case in detail during the interview, but she made comments about how she was willing to go to trial repeatedly in order to get justice for crime victims. She also referenced the outcomes of Davis’ past trials.

Nugent on Friday declined to find Mosby in contempt for the comments she made during the WYPR interview. The judge found that Mosby had not yet seen the written order and so could not have willfully violated it at that time.

But he questioned why Mosby would comment about the case on Instagram in July, well after she knew the details of the gag order.

“Why would you possibly go on that website when there is a gag order and a petition for contempt against you?” Nugent asked.

Chief Counsel Erin Murphy, who represented the State’s Attorney’s Office at Friday’s hearing, acknowledged that the comment was “an unwise choice.”

Murphy said the Instagram comment was intended as a response to the user saying Mosby had lost her vote.

Murphy suggested that Nugent could enforce the gag order by offering Mosby a “repeated reminder to not react when attacked” instead of another sanction.

But Deborah Katz Levi, a public defender who is one of several lawyers defending Davis, said in court Friday that Mosby should face a more serious sanction. She suggested that Nugent could dismiss the case against Davis as a possible sanction, fine Mosby $10,000 to be held in escrow until the conclusion of the case, or require her to make a public apology.

“Ms. Mosby has shown a pattern,” Levi said. “She can’t help herself.”

Davis’ defense team declined to comment on the contempt ruling after court Friday.

The debate over Davis’ case has come to a head in the lead-up to Davis’ fifth trial, which his supporters say makes him one of the most prosecuted men in American history.

Nugent previously found a “presumption of vindictiveness” in prosecutors’ handling of one of Davis’ cases, a highly unusual rebuke that will allow the defense team to collect discovery about charging decisions in the case.

The ruling was related to charges prosecutors brought against Davis in a 2020 prison fight just weeks after he was granted a new trial in the Pimlico murder case.

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

Nugent declined to throw out the murder charges, however, and found the defense did not prove vindictiveness in that case.

Mosby, a two-term incumbent, lost the Democratic primary last month to defense attorney Ivan Bates. Bates has said he believes the charges against Davis should be dismissed.

Bates will be in office by the time Davis’ fifth trial is scheduled to begin in May.