Will Mosby get a public defender? Here’s what that process looks like

There already were signs, even before the likely departure of her attorneys, that Baltimore State’s Attorney Marilyn Mosby was under financial duress because of the cost of her defense against federal charges. (The Baltimore Sun via AP)

A day after former Baltimore State’s Attorney Marilyn Mosby’s entire defense team made the stunning request to withdraw from her federal criminal case, the question of what comes next now hangs over the proceedings.

Mosby’s lawyers wrote in their motion late Thursday that the Office of the Federal Public Defender is available to take over her legal defense.

But will Mosby, who was until recently Baltimore’s top prosecutor, qualify for a public defender? The answer is complicated.

The judge overseeing her federal case, U.S. District Judge Lydia Kay Griggsby, will decide if  Mosby is eligible for free legal representation based on a financial affidavit.

RELATED: Mosby’s defense team asks to withdraw from her federal perjury case

The process in the federal system is fairly subjective and doesn’t use a specific income cutoff, like some state public defenders’ offices. Under the local court guidelines, Griggsby must consider “the cost of providing the person and his or her dependents with the necessities of life, the cost of securing pretrial release, asset encumbrance, and the likely cost of retained counsel.”

Mosby likely has racked up enormous legal bills to defend herself in federal court, said Andrew I. Alperstein, a local defense lawyer who is not involved with Mosby’s case.

“She’s hired very skilled, probably very expensive lawyers,” Alperstein said. “I’m sure her legal bills are astronomical.”

And there have been signs during the case that Mosby is struggling financially.

Griggsby previously found that Mosby qualified for extra funding to pay for experts in her case, though the order also required Mosby to make periodic reimbursement payments.

“I think we can safely read into that there’s some financial problems,” Alperstein said.

Still, he said, it can be jarring to see a highly paid public official apply for a public defender. Mosby made $247,955 in 2020, according to her indictment.

Latoya A. Francis-Williams, another Baltimore defense lawyer, said legal bills can take a serious toll on a defendant’s finances.

“It’s not uncommon that, even at the outset of a criminal case, one may not qualify, but spending the resources that you have for your defense team … can really put someone in a different bracket,” she said. “Then you will be able to qualify.”

It wouldn’t be the first time a high-profile official in Maryland used a public defender or court-appointed lawyer, which can happen when the public defender’s office has a conflict.

Former state Sen. Nathaniel T. Oaks was represented by public defenders in his 2017 corruption case, which ended with a guilty plea and a three-year prison sentence.

State Sen. Ulysses Currie, now deceased, also had public defenders when he was acquitted of federal extortion and bribery charges in 2011.

In both cases, one of the lawyers appointed to handle the case was Lucius Outlaw, who is also serving on Mosby’s defense team. He has asked to withdraw from her case.

Outlaw did not return a phone call requesting comment. Another Mosby attorney who has asked to withdraw, Gary Proctor, declined to comment. Mosby could not be reached for comment.

Mosby’s lead attorney, A. Scott Bolden, also did not return a phone call requesting comment.

Bolden’s actions in the case are what led to the defense team’s request to withdraw. Griggsby this week threatened Bolden with criminal contempt and possible criminal penalties because of a series of local rule violations.

Griggsby pointed specifically to a news conference Bolden held outside the federal courthouse in September, after Mosby’s trial was postponed for a second time.

Bolden said at the news conference that state and federal employees and African American politicians like Mosby were at risk of being targeted for prosecution if they withdrew money from their retirement account under emergency pandemic rules, which Mosby is accused of violating.

He also said it was “bulls—” that federal prosecutors blamed the defense for the postponement, though the delay was caused by delayed expert witness disclosures from the defense team.

Griggsby said both statements were violations of local court rules related to comments lawyers can make about a pending case.

She said Bolden also violated the rules in a Sept. 29 filing that quoted from confidential juror questionnaires to argue that potential jurors were biased against Mosby. Bolden submitted that filing without the signature of any Maryland defense counsel in another violation of local rules.

Griggsby gave Bolden until Jan. 31 to explain why he shouldn’t be held in criminal contempt or referred to the U.S. Attorney’s Office for possible prosecution. She also threatened to revoke Bolden’s admission to district court in Maryland.

In Thursday’s request to withdraw from the case, Bolden said the judge’s findings created a conflict that made it impossible for him or the other lawyers at his firm to remain on the case. Mosby’s other lawyers, Proctor and Outlaw, said they could not take over the case as lead attorney because of scheduling constraints.

Francis-Williams said Bolden “rolled the dice” when he decided to make arguments about Mosby’s case to the public.

“I highly doubt that this is what they saw at the end of this road,” Francis-Williams said of Bolden’s censure.

“At the end of the day, the persons that are going to judge credibility would be the jury, so really that is the audience that perhaps her team should have been looking to speak to, but instead spoke directly to the wider community,” she said.

Mosby’s trial will almost certainly be postponed again if she gets new lawyers. The U.S. Attorney’s Office declined to comment.

Mosby is accused of lying about suffering a pandemic-related financial loss in order to withdraw money from her city retirement account, as well as making false statements when she applied for mortgages on two Florida vacation properties. The $90,000 she pulled from her retirement account went toward down payments on the properties.

She is also accused of failing to disclose a $45,000 IRS lien, lying about the source of a $5,000 “gift” from her husband, and making other false statements when she applied for mortgages on the Florida properties.