The trial of Baltimore State’s Attorney Marilyn J. Mosby has been pushed back a second time, after a judge on Wednesday agreed the prosecution needed additional preparation time following recent defense disclosures.
“The court regrets that we are in the position that we’re in, for many reasons. We are where we are,” U.S. District Judge Lydia K. Griggsby said.
A new trial date could be set Thursday.
The city’s two-term top prosecutor, who will leave office in early January after losing her reelection bid, is charged with four counts of perjury and making false statements. Prosecutors say she lied about a financial hardship in order to access retirement funds under a federal coronavirus relief plan, the CARES Act, and then lied on paperwork related to the purchase of two Florida properties.
Mosby’s lead defense attorney, A. Scott Bolden, blasted the government in comments outside the courtroom, saying they were “throwing gasoline on an already troublesome prosecution” that they say is unprecedented.
“She’s charged with allegedly stealing her own money, lying to herself,” Bolden said. “They’ve never prosecuted anybody in the history of this country for taking their own money out of their own retirement fund. ... That ought to scare you.”
Federal prosecutors had argued since July that they believed the defense needed to provide more information about its expert witnesses, but Griggsby did not take up the issue until last week, when she agreed and told the defense to elaborate on expected testimony from its experts.
Additional information was provided late Friday.
“As Your Honor found last week, those disclosures were wholly deficient,” Assistant U.S. Attorney Leo Wise said.
Griggsby said she was postponing the trial not just so the prosecution could find an expert, but as a “fairness issue ultimately of the defense.”
“These issues are so central to two of the charges in this case,” she said.
The expert at issue is expected to testify about the side business Mosby created in 2019 as part of a possible defense argument that Mosby suffered losses related to the business, and thus was justified in making early withdrawals from her retirement account.
The defense said the expert would testify about how the travel industry generally was hit hard by the pandemic, citing stock performance of companies such as Carnival Cruise Line, United Airlines and Walt Disney World.
Prosecutors had previously said they did not plan to call experts of their own, and sought to have Griggsby exclude the defense experts.
But Griggsby did not do that, and Wise said prosecutors had no choice but to scout potential experts of their own. He said that would require researching, identifying and speaking to potential experts, finding out their availability to testify, and going through the procurement process to hire one.
The defense maintains that it had fulfilled its requirements and had provided enough information that the prosecution should have been ready with experts.
“The government knew all along that one theory of her defense would be that Mrs. Mosby has this business,” said defense attorney Rizwan Qureshi.
Wise said the defense had “ambushed us.”
Mosby’s side business first came to light in the summer of 2020 following a report in the Baltimore Brew about her travel. Mosby had created three companies under the banner of Mahogany Elite — Mahogany Elite Travel, Mahogany Elite Consulting, and Mahogany Elite LLC — a year earlier, and did not disclose them on ethics forms.
Facing questions about the city’s top prosecutor having a side company, Mosby responded that she had no intentions of running the company while in office, had not accepted “one cent” of revenue, and that the companies were a long-term venture.
But her attorneys are now saying she did intend to operate the business. Attorney Kelley Miller said Wednesday that Mosby had developed a business plan and website design, but that those plans were dashed by the pandemic affecting the travel industry. Mosby reported previously on tax forms that she put $5,000 into establishing the businesses.
“There was no ability for her to have income-producing events,” Miller said. “She can’t recoup [expenditures] because ... the travel industry is at a standstill due to COVID-19.”
Wise has said that Mosby was telling the truth in 2020 about not having plans to operate the business in office, and is lying now to justify having a financial hardship.
Bolden, the lead attorney, pleaded with Griggsby to find a way to let the trial start next week, or find a closer start date.
“She has a future she needs to get on with, good, bad, or ugly,” Bolden said. “My client has a life to lead. She doesn’t have any income after Jan. 6. How is she going to generate income if she’s still under indictment then?”