Former Baltimore State’s Attorney Marilyn Mosby is headed to trial next week, and the judge overseeing the case agreed to limit some of the prosecution’s arguments at a pre-trial hearing Monday.

But the defense didn’t get everything it was seeking, and other issues remain unsettled.

Mosby was originally charged with perjury and making false statements on a mortgage application, with prosecutors alleging she lied about suffering an “adverse financial consequence” related to the COVID-19 pandemic in order to gain early access to retirement funds, then used that money to purchase vacation homes in Florida, and, in doing so, lied in related paperwork.

Earlier, U.S. District Judge Lydia K. Griggsby ruled that there would be two separate trials, one about the retirement withdrawal and a separate one about the mortgage statements. To that end, Mosby’s defense attorneys asked that prosecutors be prevented from describing the properties as “luxury” homes or from going into details about the homes in the perjury trial, saying it could engender resentment or jealousy from jurors and wasn’t relevant.

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“She was allowed to ... use it for whatever investment she wanted,” said federal public defender James Wyda.

Mosby’s attorneys have signaled they plan to argue that Mosby took steps to establish a side company in the travel industry, while serving as Baltimore’s top prosecutor at a salary of $250,000 a year, and that she suffered a loss when the pandemic derailed those plans. At the time the companies came to the public’s attention, Mosby said she had no intention to operate them while in office.

Griggsby said prosecutors should limit their comments about the homes to their purchase price as well as any evidence that Mosby wanted to use them as vacation homes. That may be all prosecutors need, as Assistant U.S. Attorney Aaron Zelinsky said they weren’t seeking to do a “Zillow presentation.” The fact that Mosby used her retirement funds to invest further in the travel industry “cuts to whether the [her] travel business had suffered adverse financial consequences,” he said.

Griggsby gave defense attorneys a win when she told prosecutors she didn’t agree with them that there was any sort of minimum dollar amount required in order to claim an “adverse financial consequence” related to the pandemic when Mosby withdrew her retirement funds early.

Prosecutors and the defense have repeatedly sparred in various motions over the issue of how the term “adverse financial consequences” is understood and how it should be explained to jurors. The Coronavirus Aid, Relief and Economic Security Act was vague — intentionally so to stimulate the economy, the defense has argued.

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Previously, Griggsby settled on the definition of an “unfavorable or negative outcome related to money.” Defense attorneys said because the definition was unspecific, prosecutors shouldn’t be able to say that her alleged financial impact had to be significant, and Griggsby agreed Monday, saying the statute didn’t set any bar.

But Griggsby denied a defense request to prohibit prosecutors from showing evidence of Mosby’s personal finances, showing that her salary went up during the time she said the travel business negatively affected her finances.

The CARES Act required someone withdrawing funds to certify that they had been negatively affected financially as a result of being quarantined, furloughed, or laid off; having reduced work hours; being unable to work due to lack of child care; or the closing or reduction of hours of a business they owned or operated.

Since Mosby is only claiming an impact related to the closing or reduction of hours of her business, public defender Maggie Grace said prosecutors shouldn’t outline her broader finances, calling it “irrelevant to the defense we are putting forth.”

Assistant U.S. Attorney Sean Delaney said prosecutors don’t believe she met any of the requirements of the CARES Act, and want to be able to prove that.

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“At the end of the day, it’s the government’s job to prove the government’s case,” Delaney said.

Zelinsky, the other prosecutor, said Mosby “had no savings to speak of” and did not have the ability to purchase the homes “except for gaining improper access to the retirement funds.” Wyda countered that prosecutors seemed to be going back and forth between her motivations being “greed” or “need.”

Griggsby agreed to allow prosecutors to present the financial information.

Defense attorneys say Mosby plans to take the witness stand in the perjury trial, and expressed concerns about information about the mortgage case coming out in cross-examination. Griggsby said they’d find a way to tackle those issues if they arose.

She also denied a defense request filed last week to push back the trial, over concerns about questionnaires sent to jurors. Griggsby said the jury pool was large enough to work around the issues cited by the defense, which were filed under seal and not discussed in detail at Monday’s hearing.

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Jury selection will take place on Oct. 31, with the court taking a midday break — so Mosby can take part in proceedings in Baltimore related to her divorce from City Council President Nick Mosby.

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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