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A Baltimore judge ruled that city prosecutors appeared to have acted vindictively when they brought a new case against Keith Davis Jr., and has ordered them to produce objective evidence that they did not.
Judge John S. Nugent said that prosecutors took a path to bringing charges that was “atypical and outside the normal protocols,” and if the case was placed “overtop of any similar set of facts in other cases, it would result in a presumption of vindictiveness every time.”
He also said that State’s Attorney Marilyn Mosby and her staff have “engaged in conduct establishing personal animosity towards Mr. Davis outside the bounds of legitimate prosecutorial conduct.”
The ruling comes on the heels of the same judge ordering Mosby to appear at an August contempt hearing in the controversial case, regarding whether she violated his gag order.
Davis is awaiting his fifth trial for the fatal shooting of Kevin Jones in 2015; he maintains that he is innocent. The case has become one of the most controversial in recent memory, with Davis’ supporters decrying the continued prosecutions through a campaign that has included protests, billboards and a website.
Davis was shot by police officers in June 2015, after police said they responded to a report of an attempted robbery of a hack cab driver and chased Davis into a garage. Davis was acquitted of all charges except for a handgun charge, related to a gun found inside the garage after he was shot.
Following the conclusion of that case, authorities charged Davis with killing Jones near Pimlico Race Course, just hours before the alleged robbery and police shooting.
Prosecutors say there is ample evidence to convict Davis, and two juries have. But those convictions were overturned. Two other cases ended in mistrials after jurors were not able to reach a verdict. Mosby said she is fighting for Jones’ family.
David Jaros, a professor of law and faculty director of the University of Baltimore School of Law’s Center for Criminal Justice Reform, who has been following the case, said Nugent’s Thursday ruling was “pretty unprecedented.”
“Courts afford massive discretion to prosecutors in their charging decisions and are loathe to interfere — except in truly exceptional circumstances where there’s strong evidence of animus,” Jaros said, adding it’s rare that a judge would issue such a opinion pretrial.
Just two weeks after his latest conviction was overturned, in May 2021, prosecutors pushed forward with charges in a jail fight that had occurred nearly a year earlier.
The fight had occurred in June 2020, and Nugent said a homicide prosecutor assigned to the Pimlico murder case met with officers assigned to the Department of Public Safety and Correctional Services’ intelligence unit at the time. That prosecutor instructed prison investigators to hold off on bringing any charges, Nugent said.
Then, six days after Davis was granted a new murder trial, prosecutors assigned to the Pimlico case met with prison investigators and advised them to push forward and charge. The judge said that is not the way prison assault cases typically occur, as prison investigators have authority to charge cases on their own.
The evidence also raises questions, Nugent said: A corrections officer who witnessed the incident issued a sworn statement saying that the fight involved closed-fist punches between inmates. But Davis was charged with stabbing the inmate.
Also, at a hearing June 7, prosecutors conceded that no weapon was found despite the fact that the cell was immediately locked down. The statement of charges asserted that Davis is on camera withdrawing an object from his waistband, but prosecutors now say the video only shows Davis holding his hand against his side.
The state also provided no clarity about whether the inmate’s injuries were from stab wounds or superficial cuts and scratches, and “no evidence supporting premeditation to support the charge of attempted first-degree murder.”
Nugent said Mosby and her staff have “continually refused to recognize Mr. Davis’ presumption of innocence in public even though he had been granted new trials vacating his prior guilty findings.”
“Thirty-six individuals have found him guilty,” Mosby said at a City Council budget hearing on the eve of a hearing on a gag order her office was pursuing. At the hearing, she also said that Davis killed Jones “over $12.” There has been no evidence at the trials that Jones was killed over $12.
Nugent issued a gag order in the case prohibiting public comment. Just hours later, on WYPR, Mosby acknowledged she was aware of the gag order but commented on the case again.
“I will just tell you in that particular case, I’m concerned about the victim,” she said. “I can’t talk about the specifics of that case but I can tell you that we are going to fight. If a case [being overturned] has nothing substantively to do with the fact that we believe this is an individual who committed that offense, we’re going to fight for justice.”
Prosecutors sought to move the trial out of Baltimore, and to have not only attorneys involved in the case prevented from speaking, but also Davis’ wife and the activist DeRay Mckesson. Nugent denied the change of venue motion and granted the gag order, though he said he could not limit speech from non-attorneys.
Mckesson said Thursday that Mosby is “unfit for public office.” “Today, the court affirmed what we knew to be true the entire time — Mosby’s prosecution of Keith Davis Jr. is both vindictive and personal.”
Jaros, the law professor, has said he believes the case should be abandoned. He said he has no opinion about whether Davis is guilty, but said there are times when the legal system has to recognize that people cannot feel confident in a conviction.
The case has drawn outsize attention, and has even become a question asked of candidates in the primary election for state’s attorney. At a candidate forum Wednesday night, the candidates were asked if they would continue the prosecution against Davis. Ivan Bates said he definitively would not; Thiru Vignarajah said he would have to look closely at the case before deciding. Roya Hanna, who is running as an independent in the general election, said she would continue the case but also need to look more closely at it.
Reporter Dylan Segelbaum contributed to this article.
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Justin Fenton is an investigative reporter for the Baltimore Banner. He previously spent 17 years at the Baltimore Sun, covering the criminal justice system. His book, "We Own This City: A True Story of Crime, Cops and Corruption," was released by Random House in 2021 and became an HBO miniseries.
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