Prosecution seeks delay in Marilyn Mosby’s federal trial if judge allows defense expert testimony

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 for Mosby’s case Thursday, 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 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 recent filings from prosecutors as of 3:30 p.m. Tuesday. Her lead attorney, A. Scott Bolden, did not respond to a request for comment. Griggsby will likely have to rule on prosecutors’ request for a continuance before jury selection begins Thursday.

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.

The government argues the statements she 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.

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, said defense attorney Andrew I. Alperstein.

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.

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 have also 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.

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

This story will be updated.