Federal prosecutors and lawyers for State’s Attorney Marilyn Mosby continue to clash in the latest round of legal filings in the criminal case against Baltimore’s top prosecutor.
Charged with two counts of perjury and two counts of mortgage fraud related to early withdrawals from her city retirement account and the purchase of two Florida homes, Mosby’s lawyers are asking U.S. District Judge Lydia Kay Griggsby to stop the government from using certain evidence and terms against her at trial.
The two-term Democrat lost the July 19 primary and is slated to leave office in January. Her trial is set for Sept. 19.
Everything Mosby is asking the judge to rule out of bounds is in open court records, and much of it is in the indictment against her. For example, Mosby’s lawyers said Friday that they want Griggsby to bar prosecutors from telling jurors she used the $90,000 she withdrew to purchase the Florida homes.
Under the CARES Act, the first pandemic relief bill, Congress allowed government workers to take money out of their retirement accounts if they claimed — under penalty of perjury — that they suffered adverse financial consequences as a result of the pandemic or if a business they owned lost money.
Her defense team, led by A. Scott Bolden, also wants the government to be banned from using the term “financial hardship,” saying it and the details of how she spent the money are “prejudicial” and would bias jurors against Mosby and that “she was free to spend the money in any way she saw fit.”
In a filing by prosecutors, they included an attachment showing the inflows and outflows of cash from Mosby’s personal bank accounts, as well as her credit card purchases and debts. The attachment shows Mosby actually gained income in 2020 compared to 2019, and it’s likely to be presented at trial to support prosecutors’ claim she didn’t suffer the adverse financial consequences she claimed when making a COVID-19 withdrawal from her retirement funds. The annual salary for the state’ attorney is $248,000.
“Put simply, the inclusion of such personal information — without redaction — served no discernible purpose, and can only be attributed to a vicious desire to publicly embarrass, humiliate and shame State’s Attorney Mosby that the Court should not countenance,” Bolden wrote. “This is important for the Court to fully appreciate, because the government is anything but dispassionate in its unbridled pursuit of State’s Attorney Mosby, and the real basis for her prosecution.”
The government, in filings from prosecutors Leo Wise and Aaron Zelinsky, has said all of Mosby’s accusations against it are false, and has sought to block her or her lawyers from accusing it of vindictive or racially motivated prosecution.
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In an earlier attempt to have the charges against her dismissed, Mosby and her lawyers argued prosecutors targeted her because she is Black, due to her politics and because Wise doesn’t like her. Griggsby, in an April ruling, found Mosby had provided no “objective evidence” for those claims and that many of her allegations weren’t substantiated.
Despite that ruling, Mosby’s legal team continues to push that narrative, possibly on the grounds a jury would enter a “nullification,” letting Mosby off the hook, Wise wrote. In such a scenario, jurors can reject a prosecution they consider to be unfair.
“The truth is and always has been that the Defendant was not investigated or charged because of her race, her politics, or her personal decisions.” Wise wrote in his most recent filing. “She was investigated and charged because she committed multiple federal crimes. Any argument to the contrary is a distraction — a distraction now, and a distraction for the jury later.”
Also at issue is a lingering argument over expert testimony, chiefly whether the government is calling experts and if Mosby will disclose her own experts’ planned testimony, something she was supposed to do by July 1, but hasn’t. One of the reasons Mosby’s trial was postponed from May to September was because of her failure to disclose her experts’ planned testimony earlier in the proceedings.
Mosby and her lawyers also took issue with two witnesses, an FBI accountant and IRS revenue officer, who the government plans to call to testify about the facts in the case. The defense says they qualify as expert witnesses, a different category of witness who can offer opinions, and shouldn’t be allowed to testify because prosecutors didn’t disclose them as such. The government disagrees, noting past instances where similar witnesses were not required to be sworn as experts.
Because Mosby hasn’t properly disclosed her experts’ testimony, the September trial date may now be in jeopardy, prosecutors wrote.
Griggsby is expected to rule on all pending motions, including a second motion to dismiss Mosby’s perjury charges, in a Sept. 14 pretrial hearing.