Judge postpones Marilyn Mosby’s federal trial

U.S. District Court Judge Lydia Kay Griggsby ordered Wednesday afternoon a postponement of Baltimore State’s Attorney Marilyn Mosby’s upcoming perjury and mortgage fraud trial due to a delayed disclosure on expert testimony.

Her trial was scheduled to begin Monday after jury selection on Thursday, and the postponement comes after the defense failed to disclose the details of its expert witness testimony by Griggsby’s mandated July 1 deadline. Mosby’s lawyers sent its last disclosure, at Griggsby’s direction, to prosecutors late Friday night.

Lawyers for Mosby opposed the postponement, describing federal prosecutors as hypocrites for raising a delay as a remedy for legal debates in the case.

The last-minute, pointed back-and-forth came just before jury selection was slated to start Thursday and as attorneys on both sides prepared for Wednesday’s hearing.

Late Monday night and during the day Tuesday, prosecutors made an attempt to undercut an evolving legal strategy from Mosby’s defense: Her lawyers plan to argue she’s not guilty of perjury because her personal business took a hit because of the coronavirus pandemic.

Prosecutors asked to introduce “sanitized” snippets of statements the state’s attorney made, while under unrelated investigations in 2020 and 2021, indicating that her businesses were inoperable and hadn’t made her a dollar.

Then, the government said Mosby’s defense team missed a deadline to provide a disclosure about what its forensic accountant planned to testify to at trial. Prosecutors received an email late Friday night — after the court’s deadline — indicating the defense expert planned to testify about the travel industry, Mosby’s investment portfolio and the stock market during the COVID-19 crisis.

Prosecutors asked Griggsby to either prohibit the accountant’s testimony because of the late disclosure and what they described as inappropriate testimony, or to postpone the trial so the government could hire its own expert on the travel industry and the economy to evaluate and potentially rebut the defense’s witness.

Two legal experts interviewed by The Baltimore Sun on Tuesday predicted Griggsby would find “good cause” and postpone the case in recognition of both sides’ right to a fair trial and the potential appellate ramifications of limiting the defense’s expert testimony the way prosecutors proposed.

In a Tuesday night filing, Mosby’s lawyers pushed back on the prosecution’s request. They urged Griggsby to deny a postponement, arguing prosecutors had missed their opportunity to file these pretrial motions and had enough time to prepare for trial.

The defense lawyers called the government’s late motions evidence of “’trial by ambush’ tactics.” Griggsby should deny prosecutors’ request “on their hypocrisy alone,” Mosby’s lawyers argued, citing the government’s opposition to Mosby’s push for a delay in April. Griggsby granted Mosby’s request then.

But Mosby’s lawyers also filed a pretrial motion outside of the deadline Griggsby set. The judge allowed the argument over whether to dismiss the perjury charges to go forward and scheduled the hearing Wednesday for the attorneys to debate it.

After unsuccessfully arguing for the case to be dismissed because of unfounded claims of racial and personal animus harbored within the Maryland U.S. Attorney’s Office, Mosby’s lawyers presented a nuanced legal argument targeting the perjury charges.

The defense said language Congress crafted to determine eligibility for CARES Act relief was fundamentally ambiguous and that Mosby couldn’t be prosecuted under those terms.

According to her indictment, Mosby applied for two early withdrawals from her city retirement savings account under the guise of having suffered financially because of the coronavirus.

State and city employees cannot access their retirement accounts before retirement unless they stop working for the government or experience an “unforeseeable emergency.” Congress loosened those rules temporarily when it passed the CARES Act, meaning government workers could draw retirement funds by claiming a business they owned had to shut down or took a loss, or they had suffered “adverse financial consequences” because of COVID-19.

Mosby checked a box, under the penalties of perjury, that she either suffered “adverse financial consequence” because of the pandemic — either being laid off or furloughed, having reduced work hours because of a lack of childcare or experiencing a monetary blow in her personal business, the indictment said. Federal prosecutors say she suffered none.

The indictment says Mosby used the approximately $80,000 from the two early withdrawals to make down payments on a pair of vacation homes in Florida: an eight-bedroom rental near Disney World and a condo on the state’s Gulf Coast.

“Without those two withdrawals, she would not have been able to make the down payment on either of the two Florida vacation homes she purchased in September 2020 and February 2021,” federal prosecutors wrote in a previous court filing. “Simply put, the defendant’s perjury allowed her to leverage $90,000 in funds she should not have had access to in order to get two vacation homes.”

Prosecutors also accused Mosby of lying on mortgage applications for both properties by obfuscating her intentions about the rental to lock in a lower interest rate, and neglecting to disclose a federal tax lien on both loan requests.

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