Baltimore Sun

Trial could face delay

Last-minute filings from prosecutio­n in response to potential expert testimony

- By Alex Mann and Lee O. Sanderlin

A flurry of last-minute filings from federal prosecutor­s in the case against Baltimore State’s Attorney Marilyn Mosby has cast doubt on whether the trial will begin next week as scheduled.

The legal papers filed Monday night and Tuesday come as the government seeks to respond to a developing legal strategy from Mosby’s defense: She is not guilty of perjury, her lawyers argue, because her personal businesses suffered during the coronaviru­s pandemic.

Federal prosecutor­s asked U.S. District Judge Lydia Kay Griggsby to either bar Mosby’s forensic accountant from testifying about how nascent businesses in the travel sector, like Mosby’s, were impacted by the coronaviru­s pandemic or to postpone the trial so that the government can hire its own expert in the field.

Jury selection is slated to begin Thursday for Mosby’s case, with the trial set to begin Monday.

The government wrote that it was presenting these remedies for the judge to consider both because Mosby’s lawyers missed the deadline Griggsby set for the defense to disclose its experts’ opinions and because the experts’ opinions oversteppe­d what they were allowed to testify about in court.

Originally, Mosby’s attorneys were supposed to disclose all expert testimony in the case by July 1, but failed to do so. Griggsby then informed them

last Wednesday to finish their disclosure­s by last Friday, and Mosby’s lawyers emailed the disclosure­s to prosecutor­s just after 11 p.m. that day, according to court filings.

Andrew I. Alperstein, a defense attorney who is not involved in the case, said Griggsby is likely to consider the government’s right to a fair trial along with the potential future ramificati­ons of barring the defense expert’s testimony on the grounds of timing.

“If the court were to prohibit Mosby’s expert’s opinion from being used in the case because the defense did not disclose it in a timely manner, then you run the risk of a claim of ineffectiv­e assistance of counsel by Mosby’s lawyers, which could possibly lead to a new trial being ordered if she were convicted,” Alperstein said.

Mosby’s lawyers had not responded to the prosecutor­s’ recent filings as of 5 p.m. Tuesday. Her lead attorney, A. Scott Bolden, did not respond to a request for comment. Griggsby likely will have to rule on prosecutor­s’ request for a continuanc­e before jury selection begins Thursday.

David Jaros, faculty director of the University of Baltimore School of Law’s Center for Criminal Justice Reform, predicted Griggsby would postpone the trial.

“Above all, the judge is going to prize the integrity of the trial and want both sides to present their cases fully developed,” Jaros said.

Both sides are due back in court at 2 p.m. Wednesday for a second pretrial hearing on whether Mosby’s two perjury charges should be dismissed.

Federal prosecutor­s also were asking Griggsby to allow them to introduce at trial what they describe as “vital” evidence to combat Mosby’s claims that her personal businesses suffered because of the pandemic. They asked Griggsby to approve six segments from statements Mosby and her previous attorneys made in response to probes into her travel and taxes in 2020 and 2021.

“The defendant argues she is innocent of perjury charges in 2022 because she lied in 2020 and 2021,” federal prosecutor­s wrote in a filing late Monday night.

Their 11th-hour push follows Griggsby’s decision last week to bar the prosecutio­n from mentioning previous investigat­ions targeting Mosby. Griggsby’s decision covered probes conducted by Baltimore Inspector General Isabel Cumming — launched at Mosby’s request — and Maryland Bar Counsel Lydia Lawless.

It’s proper for judges to bar mentions of previous investigat­ions from trial under the rules of evidence because jurors tend to associate being investigat­ed with being guilty, Alperstein said.

However, when facts in those investigat­ions are relevant to the current cases, there are ways to admit them to trial, Alperstein said.

“The government still has an interest in that content and the way around it is, one, a stipulatio­n of the facts between the two parties, or, two, a statement that is sanitized of reference to any investigat­ion but still leaves the content for the jury to consider,” Alperstein said.

Though Griggsby has prohibited prosecutor­s from bringing up prior investigat­ions, she left the door open to the government introducin­g “sanitized” statements if the two sides could not reach agreement on a stipulatio­n. In legal terms, a stipulatio­n is a binding agreement on the facts between the defense and prosecutio­n.

Prosecutor­s say the statements Mosby or her lawyers made in response to those probes are highly relevant to its prosecutio­n of Mosby and that they should be allowed to introduce redacted versions of those statements at trial.

Last week, Mosby’s defense team revealed for the first time they plan to argue in court, through the testimony of a forensic accountant, that she suffered business losses and a decrease to her personal net worth at the onset of the pandemic.

Mosby faces two counts of perjury and two mortgage fraud charges.

Federal prosecutor­s say she lied about suffering financial hardship during the coronaviru­s to obtain early and penalty-free withdrawal­s from her city retirement savings account. Then, according to Mosby’s indictment, she used the approximat­ely $80,000 on two vacation homes in Florida. Prosecutor­s say she misled lenders on mortgage applicatio­ns for both properties.

Mosby checked a box on a form requesting the retirement saving withdrawal­s under the federal CARES Act, Congress’s first pandemic relief package, claiming that she suffered an “adverse financial consequenc­e” as a result of being furloughed or laid off, having reduced work hours, being unable to work due to a lack of child care, or if a business she owned had closed or taken a loss.

Should Griggsby allow the defense’s forensic accountant, Jerome Schmitt, to testify, he plans to offer opinions on Mosby’s net worth and investment portfolio and how COVID-19 negatively effected them. Schmitt also plans to testify about the travel industry as a whole, and how Mahogany Elite Enterprise­s LLC, would have struggled to make revenue as a new company during the early days of the pandemic.

During previous investigat­ions, Mosby said her businesses, including travel company Mahogany Elite Enterprise­s LLC, were inoperable.

“I ask that you verify that I have not taken on a single client for these companies, nor have I taken in any money,” Mosby wrote in a July 2020 letter to Cumming.

Now, her lawyers are hinging their defense for Mosby’s perjury charges on those businesses.

Defense attorney Kelley Miller said last week in court the defense planned to introduce “expert testimony regarding the losses suffered by many travel businesses in 2020 and the ability of an early-stage travel-related company, like Mahogany Elite Enterprise­s LLC, to generate revenue in 2020 after the COVID-19 pandemic began.”

The proposed evidence includes three correspond­ences from 2020: an email from Mosby to State’s Attorney’s Office spokeswoma­n Zy Richardson, the letter from Mosby to Cumming and a letter sent by one of Mosby’s attorneys at the time, David Shuster, to Cumming.

Prosecutor­s also asked to introduce redacted copies of three letters sent in 2021: one by Erin Murphy, chief counsel for the state’s attorney’s office, to Cumming; another from a different lawyer representi­ng Mosby, William Brennan, to the state bar counsel; and another letter from Shuster to Cumming.

“The proposed six accompanyi­ng statements are vital to the government’s case and, given the asserted defense, have immense probative value. They should be admitted in their sanitized state as proposed,” prosecutor­s wrote Monday.

Prosecutor­s also have issued subpoenas to Murphy, Shuster and Brennan, setting up the possibilit­y they are called to testify at trial. Should any of them take the stand, prosecutor­s wrote in their filing that no mention of prior investigat­ions would arise from their lines of questionin­g.

It is possible Mosby’s attorneys will seek to quash the subpoenas and the admission of those letters by attempting to claim those communicat­ions are subject to attorney-client privilege, a legal principal that keeps all discussion­s between a person and their hired lawyer private.

Because the letters were written to a third party they aren’t subject to that privilege and are fair game in court, Alperstein said.

“When your lawyer speaks to a third party and offers your position they’re acting as an agent of the client,” he said. “They’re a spokespers­on for the client.”

In addition to the statements about her businesses, prosecutor­s are asking Griggsby to admit a February 2021 statement where former Mosby attorney Brennan writes about the tax liens against her and her husband, Baltimore City Council President Nick Mosby.

Prosecutor­s have said Mosby failed to disclose the tax liens in her mortgage applicatio­ns for the two Florida homes and Marilyn Mosby has previously said she didn’t know about the debts because Nick Mosby handled their taxes and did not tell her about them.

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