Prison or probation? Attorneys make conflicting recommendations for Marilyn Mosby’s sentence

Federal prosecutors argue that former Baltimore State’s Attorney Marilyn Mosby has shown “no remorse or contrition” and should serve 20 months in prison for perjury and mortgage fraud, while her attorneys contend the crime involved “no victims or financial loss” and that a judge should spare their client from incarceration.

Mosby, 44, a Democrat who served two terms as the city’s top prosecutor from 2015 to 2023, is set to be sentenced May 23 on two counts of perjury and one count of making a false statement on a loan application related to her purchase of two luxury vacation homes in Florida. The government and defense on Thursday laid out their recommendations for sentencing and reasoning in court documents.

In their 23-page sentencing memo, Assistant U.S. Attorneys Sean Delaney and Aaron Zelinsky said Mosby, out of greed, took advantage of a law meant to help struggling Americans during the COVID-19 pandemic while she was healthy and earning her full salary of almost $248,000.

“Ms. Mosby was charged and convicted because she chose to repeatedly break the law, not because of her politics or policies,” Delaney and Zelinsky said. “Two separate juries of her peers in the venue of her choosing rejected her self-serving claims and found her guilty.”

”By imposing a sentence of 20 months incarceration, the Court will make clear that those who break the law, including those in positions of public trust, will be held accountable.”

Mosby has been on a national media blitz in recent weeks, a campaign that’s blasted the prosecution as racially, personally and politically motivated and called on President Joe Biden to pardon her. Prosecutors said they factored her lack of remorse into their recommendation, which they note falls in the middle of the sentencing guidelines of 18 to 24 months.

Her attorneys have sought to temper those sentiments, stating that, while she maintains her innocence, she wishes she would have acted differently and has learned a lesson. They’ve objected to the federal sentencing guidelines and contend they should be 12 to 18 months.

In their 68-page sentencing memo, Mosby’s attorneys, Federal Public Defender James Wyda and Assistant Federal Public Defenders Maggie Grace and Sedira Banan, asked the judge to impose a “non-incarceration sentence” and one year of supervised release.

“Jail is not justice for Marilyn Mosby,” they wrote.

In 2020, Mosby twice certified that she experienced an “adverse financial consequence” to withdraw a total of $90,000 from a retirement account that she otherwise would not have been able to access using a provision of the Coronavirus Aid, Relief, and Economic Security Act. A jury determined she lied on those documents.

Mosby used that money to buy a home in Kissimmee, Florida, not far from Walt Disney World, and a condominium in Longboat Key, Florida, on the state’s Gulf Coast. A second jury concluded she also lied when she claimed in a letter that her husband at the time, Nick, who’s president of Baltimore City Council, had agreed to gift her $5,000 at closing. They’re now divorced.

Ivan Bates defeated Mosby in the Democratic primary in 2022 and ran unopposed on Election Day.

As Baltimore state’s attorney, Mosby was in a position of public trust, Delaney and Zelinsky said.

Everyone, they said, has the “absolute right to vigorously defend themselves against accusations.”

But Mosby has alleged race, personalities and politics motivated the prosecution from the beginning as part of her effort to delegitimize the case, Delaney and Zelinsky said.

U.S. District Judge Lydia Kay Griggsby ruled there is no evidence to support those claims, they said, adding that Mosby has “demonstrated a continued disrespect for the law and the Court—both in her disregard for this Court’s ruling and in her continuing attempt to retry her case through the media.”

Of all people, they said, Mosby “knows that such advocacy is misplaced, misguided, and shows a lack of respect for the law.”

Delaney and Zelinsky pointed to the case of former Baltimore Police Commissioner Darryl De Sousa, who pleaded guilty to tax crimes and was sentenced to 10 months in prison plus 100 hours of community service and one year of supervised release.

Both cases involved white collar crimes. But Mosby has “expressed no remorse or contrition,” they said, while De Sousa accepted responsibility for his conduct.

“Ms. Mosby’s convictions appear to have in no way caused her to believe that she did anything wrong,” Delaney and Zelinsky said. “In fact, it appears from her continued public comments the Defendant believes that she has been targeted for her crimes, and that she does not accept responsibility for her actions.”

“If she believes she did no wrong, there is every reason to believe she will do wrong again,” they added. “As such a significant sentence of incarceration is warranted.”

Wyda, Grace and Banan said their client is awaiting sentencing for “convictions of a highly unusual nature.” Though Mosby served as an elected official, they said, the crime was “purely personal and solely involved the access and use of funds that were generated from her income for the down payment of two properties.”

They outlined her life story: being born in a primarily Black, working-class community in Boston and bussed to the suburbs for school, becoming a first-generation college graduate and obtaining a law degree, serving as an assistant state’s attorney and growing a family, and rising to become one of the youngest top prosecutors in the United States.

The memo also walks through her progressive policy agenda and array of programs aimed at helping the youth.

“To be clear, Ms. Mosby accepts the Court’s finding that there has been no vindictive or selective prosecution,” Wyda, Grace and Banan said — in direct conflict with the talking points of the pardon campaign.

Mosby, they said, has “lost significantly in every aspect of her life.”

“In rising to the level she did, advancing the prosecution priorities she had, and weathering pressure and protest from powerful entities, her dramatic fall is stunning, painful, and embarrassing,” they said.

Former Baltimore Mayor Kurt Schmoke, former U.S. District Judge George J. Hazel and former NAACP Legal Defense Fund President Sherrilyn Ifill were among those who wrote letters on Mosby’s behalf.

Hazel wrote that his “greatest professional regret is that it took me too long to realize that as a society we are much too comfortable with incarceration as the solution to all things.” He served as chief deputy state’s attorney under Mosby’s predecessor, Gregg Bernstein.

“As much as I disagreed with some of Marilyn’s policies, I respect that much of her time in office was directed towards reducing the prison population,” Hazel said. “It was the ultimate demonstration of mercy by one who wielded tremendous power in the criminal justice system.

“With her power already taken away, she will now seek what she has given.”

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