Judge rules prosecutors can’t mention previous investigations of Marilyn Mosby at her criminal trial
Baltimore Sun (MD)
A federal judge barred prosecutors Wednesday from mentioning any of the previous investigations into Baltimore State’s Attorney Marilyn Mosby at her perjury and mortgage fraud trial later this month, making it harder for the government to introduce Mosby’s previous comments about her side businesses.
U.S. District Court Judge Lydia Kay Griggsby said during the first of two pretrial hearings that any mention of previous investigations into Mosby would be “very prejudicial” at trial, meaning it could influence jurors into thinking she was guilty.
Statements Mosby made in those investigations, specifically statements that businesses she owned were inoperable, are at the heart of her defense, and making it harder to introduce those statements at the Sept. 19 trial was a small win for the embattled Democrat.
While Griggsby granted Mosby’s motion to exclude evidence of past investigations into Mosby, she did deny three other defense motions: A motion to stop an FBI accountant and IRS revenue officer from testifying, a motion to preclude prosecutors from using the term “financial hardship” as it relates to her COVID-19 retirement withdrawals, and a motion to deny prosecutors from telling jurors how she spent the money she withdrew.
Griggsby also granted prosecutors’ motions placing limits on what Mosby’s experts could say at trial and prohibiting the defense from entering previously disproven evidence of personal and racial animus on the government’s behalf.
Mosby’s lead defense attorney, A. Scott Bolden, said before the hearing his client would not take a plea deal in the case.
“We’re going to trial,” he said.
Charged with two counts of perjury and two counts of mortgage fraud, prosecutors have claimed Mosby lied about experiencing adverse financial consequences as a result of COVID-19 to make two early withdrawals from her city-managed retirement account. Under the CARES Act, the first pandemic-relief bill Congress passed, government workers could draw those funds if they claimed — under penalty of perjury — a business they owned had closed or taken a loss.
She made her first retirement account withdrawal under the CARES Act rules in May 2020.
Around that same time, Mosby, under fire for frequent out-of-state travel, asked the Baltimore inspector general for an investigation into her travel and consulting businesses to prove they existed in name only. The inspector general later found Mosby deducted $5,000 in business expenses on her federal taxes for losses associated with the travel business.
“I ask that you verify that I have not taken on a single client for these companies, nor have I taken in any money,” Mosby wrote in a July 2020 letter to the inspector general. “Any insinuation to the contrary is false, misleading, and unethical.”
In January, Bolden suggested something to the contrary in an appearance on Roland Martin’s YouTube show.
“Remember, Marilyn Mosby has businesses, if you will,” Bolden said then, referencing LLCs she registered in the travel and consulting sectors. “And so, those businesses were in the travel space and they were affected by [the coronavirus] and her accountant urged her to take that money.”
In court Wednesday, another of Mosby’s defense attorneys, Kelley Miller, said one of Mosby’s expert witnesses, forensic accountant Jerome Schmitt, will testify at trial that Mosby suffered business losses during the pandemic.
The government is paying for Mosby’s witnesses, at least in part, after a judge found she likely cannot afford them. Expert witness testimony can cost more than $10,000.
Lead prosecutor Leo Wise pointed out that Mosby and her previous attorneys’ statements about her businesses being inoperable are at odds with this new line of defense, suggesting that this is a defensive ploy to sway jurors.
While prosecutors are banned from discussing the previous investigations into her taxes and travel, Griggsby left the door open for them to introduce “sanitized” versions of the statements that keep the parts about her businesses without mentioning investigations.
Those versions would require defense counsel approval and have to be entered into the record as stipulations — a legal term for a fact both sides agree upon. Should the defense not agree, prosecutors said Wednesday they have already subpoenaed Mosby’s previous attorneys and are prepared to call them to testify if Griggsby allows it.
Prosecutors made their own pretrial motion to prevent Mosby’s lawyers from accusing them of racial and personal animus against the state’s attorney, Bolden’s original defense to the charges.
Griggsby ruled in favor of the government, banning Mosby and her defense from presenting the same arguments they did in April when they tried to have the case thrown out on grounds of racism and vindictiveness. Griggsby ruled then there was no objective evidence prosecutors were acting out of any animus toward Mosby.
Mosby’s two perjury charges are based on her withdrawal of about $81,000 from her retirement account on two separate occasions in 2020 to purchase two Florida properties: An eight-bedroom home near Disney World and a condo on the state’s Gulf Coast.
Should the government win at trial, prosecutors have filed notice of plans to seize the condo. Mosby sold the Disney home in November 2021.
Assistant U.S. Attorney Sean Delaney said how Mosby spent the money she withdrew gets to whether she suffered adverse financial consequences at all.
“If the defendant had adverse financial consequences, presumably she would use the funds to address the adverse financial consequences that caused that withdrawal,” Delaney said.
When Mosby purchased the home near Disney World, she signed a document known as a second home rider promising she would not hire a management company or rent it out for at least a year, according to publicly available mortgage filings. Mortgages for investment homes are typically more expensive, with banks requiring higher interest rates and a 20% down payment compared to the 10% needed for second homes.
However, prosecutors claim that a week before closing, Mosby signed a contract with a management company, giving it control over renting the home, a violation of her mortgage terms and grounds for one of the fraud charges.
Miller, in court, did not deny the existence of the agreement, but said instead prosecutors have mischaracterized it and that Mosby did not believe it would remove the property from her control.
Prosecutors also filed a motion to stop Mosby’s hired expert witnesses from testifying. Griggsby granted that motion in part, setting limits on what the experts could testify about while also requiring the defense to disclose more details about the experts’ opinions ahead of trial.