In a rare occurrence, Baltimore State’s Attorney Marilyn Mosby is set to appear in court on Friday to answer to allegations that she violated a gag order in the controversial case of Keith Davis Jr., a man who’s awaiting a fifth murder trial.

Mosby asked for the gag order, citing the amount of pretrial publicly. Circuit Judge John S. Nugent on June 7 granted the request.

She later appeared that afternoon on “Midday” with Tom Hall on WYPR. When asked about the case, Mosby noted that a judge had issued a gag order and stated that she could not go into specific details.

“I can just tell you, in that particular case, I’m concerned about the victim,” Mosby said. “I’m going to fight for them the same way I fight for every victim in the city of Baltimore, and you would want me to do the same if that was your loved one.”

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Here’s what the state and defense are arguing in court documents:

‘Ms. Mosby vilified Mr. Davis in a manner that undermines his presumption of innocence’

In a petition for civil contempt and dismissal, Deborah Katz Levi and Andrew Northrup, Davis’ attorneys, wrote that Mosby made statements with the intention of influencing public opinion about the case.

Davis, 31, of Reisterstown, is charged with second-degree murder and using a firearm during the commission of a crime of violence in the fatal shooting of Kevin Jones, a security guard at Pimlico Race Course, which happened on June 7, 2015.

Two trials ended with hung juries. Judges twice overturned convictions in the case.

Davis maintains his innocence, and civil rights activists such as DeRay Mckesson have taken up the cause. Davis is being held without bail in the Maryland Reception, Diagnostic and Classification Center.

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Mosby “used the WYPR interview as an opportunity to paint Mr. Davis as a guilty man and defend, justify, and garner public support for her controversial oft-criticized decision to re-prosecute him,” Levi and Northrup said.

That not only violated the gag order, they argue, but possibly the Maryland Attorneys’ Rules of Professional Conduct and their client’s right to due process.

“More specifically, Ms. Mosby vilified Mr. Davis in a manner that undermines his presumption of innocence and interferes with his right to a fair trial,” Levi and Northrup said. “She then cast another cloud of suspicion and prejudice over him when she mischaracterized the reasons for his prior reversals as rogue juries, publicly disfavored ‘technicalities,’ or unexpected changes in the law.”

They’ve asked the judge to dismiss the indictments against their client.

Later, Levi and Northrup asserted that a comment that Mosby made on an Instagram post about the case from @murder_ink_bmore — an account that has more than 164,000 followers — also violated the gag order.

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One woman commented, “Don’t know who story line this is but @marilynmosbyesq has definitely LOST MY VOTE!! #FreeKeithDavisJr.” Mosby replied, “You really shouldn’t believe everything you read.”

‘Frivolous on its face’

In response, Deputy State’s Attorney Noelle Newman and Assistant State’s Attorney Rita Wisthoff-Ito described the petition for civil contempt and dismissal in court documents as “frivolous on its face,” stating that the filing failed to show that Mosby violated the gag order.

Civil contempt, they said, is intended to force a party to comply with a court order — not to punish past behavior.

Mosby neither mentioned Davis nor Jones by name. She “simply explained a fairly commonplace belief that the role of a prosecutor, herself included, is to fight for victims and their families and this sometimes will require retrying cases that end in hung juries or have convictions overturned because of procedural missteps or changes in the law,” Newman and Wisthoff-Ito wrote.

They described the request to dismiss the indictments as “perhaps the most frivolous aspect” of the petition.

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“This request is not only unsupported by precedent but it is explicitly prohibited by it,” Newman and Wisthoff-Ito wrote.

The gag order, they said, “prohibits extrajudicial statements intended to influence public opinion regarding the merits of this case.” But it “neither prohibits extrajudicial comments unrelated to this case nor extrajudicial comments about this case that are not intended to influence public opinion regarding the merits of this case.”

Newman and Wisthoff-Ito described Mosby’s remarks as “banal and uninflammatory,” later adding that they were “little more than a brief mundane remark concerning the reasons why the State sometimes retries cases.”

Even if Mosby did violate the gag order, the evidence shows that was not a willful violation, Newman and Wisthoff-Ito argued. They asserted that there’s no legitimate reason for the state’s attorney to appear or testify in court “other than to cause further pre-trial publicity.”

In regard to the comment on Instagram, Mosby “simply replied to an apparent Baltimore City voter, who themselves had questioned the source of the video, and in effect told them to think critically about the information that they read online,” Newman and Wisthoff-Ito said.

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What’s next?

The hearing is scheduled for 9:30 a.m. in the Clarence M. Mitchell Jr. Courthouse.

Ivan Bates, the Democratic nominee and likely next state’s attorney in Baltimore, told The Baltimore Banner that he would drop the charges against Davis or, upon the request of the Jones family, refer the case to an outside jurisdiction for review.

Bates said he can no longer ethically discuss the case but added that he’s a “big believer of keeping my word.”

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