BALTIMORE — Lawyers for Baltimore State’s Attorney Marilyn Mosby presented a long-shot legal argument in their latest filing in federal court: The indictment against her should be dismissed because it is exclusively the result of federal prosecutors’ animosity toward her.
In making their case for a federal judge to throw out the charges against the two-term Democratic state’s attorney, Mosby’s lawyers revealed new information about the yearlong criminal tax investigation of her and her husband, Democratic City Council President Nick Mosby.
The motion, one of three defense pleadings filed this holiday weekend, asks U.S. District Judge Lydia Kay Griggsby to throw out the case against Baltimore’s state’s attorney because of “prosecutorial vindictiveness” on the part of U.S. Attorney Erek Barron and Assistant U.S. Attorney Leo Wise, the lead prosecutor on the case.
“Since its inception, the prosecution against State’s Attorney Mosby has been driven by malicious personal, political, and even racial animus on the part of the prosecutors,” Mosby’s attorneys wrote. They described her indictment as the culmination of a “crusade to ruin the political career of a young, progressive, Black, female elected official.”
Marilyn Mosby, 42, is charged with two counts of perjury and two counts of making false statements on loan applications to buy a pair of properties in Florida. Nick Mosby is not charged with any crimes.
She has maintained she is innocent, and the papers filed by her attorneys largely echo their public comments about the case. But now, Mosby’s attorneys also argue the U.S. attorney’s office is participating in discriminatory prosecution that violates Mosby’s constitutional rights to due process and equal protection.
Even if they’ve raised legitimate concerns about the appearance of bias, the effort by Mosby’s attorneys to shut down the prosecution is unlikely to succeed, said David Jaros, faculty director of the Center for Criminal Justice Reform at University of Baltimore School of Law.
“Simply showing that the prosecutor who filed the case doesn’t like her and wants her out isn’t sufficient to show the indictment wouldn’t have been filed if he wasn’t on the case,” Jaros said, adding that it’s even more difficult to prove when a public official is the defendant. “It’s hard to argue that a prosecutor wouldn’t think it’s appropriate [to file charges] because it is a big deal when a public official breaks the law.”
Andrew Alperstein, a criminal defense lawyer and former prosecutor, also said the subjective views of a prosecutor are not sufficient basis to have a case dismissed.
“Sometimes in litigation, lawyers file papers with the court that they believe are for the purposes of PR or to reach prospective jurors. That’s what I believe is happening here because there is no chance this is going to be dismissed based on that motion,” Alperstein said.
While Mosby’s defense has long targeted Wise in its public statements, Friday night’s filing is the first time her lawyers have gone after Barron. The lawyers wrote Barron has “expressed disapproval of her both personally and professionally,” accusing him of questioning her ability and repeating rumors about marital infidelity on Mosby’s part.
For instance, Mosby’s lawyers included in their filing a declaration from Sheaniqua A. Thompson, a top adviser of Nick Mosby at City Hall. She wrote that she worked with Barron between 2017 and 2019 while he was a Democratic state delegate and she was policy advocate for a nonprofit organization.
She said she was outside a State House committee room once when Marilyn Mosby walked by and Thompson expressed admiration for her. She said Barron responded by bringing up rumors about Marilyn Mosby’s “sex life” and said, “I don’t get how she got where she is.” Thompson said she was paraphrasing, but said Barron continued while working with Thompson to “tell me how much he disliked working with State’s Attorney Mosby, and how he didn’t like her style and approach.”
Mosby’s defense accused Wise of “being involved in several attempts to sabotage” Mosby’s career, “engaging in similar conduct aimed at other Black officials” and cited that Wise contributed to the campaigns of Mosby’s Democratic primary opponents for state’s attorney in 2018, Ivan Bates and Thiru Vignarajah.
They noted that Wise and then-acting U.S. Attorney Stephen Schenning brought up during the prosecutions of members of the Baltimore Police Department’s Gun Trace Task Force that an assistant state’s attorney from Mosby’s office leaked word of the investigation to corrupt officers. Mosby and her defense said that didn’t happen.
Earlier in the investigation of Mosby, lead defense attorney A. Scott Bolden raised concerns with the U.S. Department of Justice. He filed complaints in March that asked for Wise and Schenning, then in charge of the U.S. attorney’s office, to be removed from the probe. The department’s Office of Procedural Responsibility declined, saying there was no evidence to support Bolden’s assertions and that he could raise those arguments with a judge during litigation.
Federal prosecutors have not responded yet to the motions from Mosby’s defense lawyers, but wrote in a status report filed earlier Friday that they planned to ask the judge to “preclude personal attacks on government counsel.”
A spokeswoman for the U.S. attorney’s office, Marcia Murphy, declined Saturday to comment. Barron did not respond Saturday to a separate request for comment. When asked publicly in the past about the Mosby case, he has defended his office’s work by saying his prosecutors follow the evidence and the law.
The motion for dismissal does little to address the specifics of charges she faces.
Mosby made two early withdrawals of a combined $81,000 from her retirement savings account without penalty under the federal CARES Act by claiming to have suffered financially from the coronavirus pandemic, according to the indictment. However, federal prosecutors say she suffered no such hardship, and noted her salary increased. She is paid nearly $248,000 a year.
She is also accused of using the money from the withdrawals for down payments on an eight-bedroom rental home near Disney World and a condo on Florida’s Gulf Coast. Federal prosecutors said she lied on mortgage applications for those properties by neglecting to disclose a federal tax lien and declaring the Orlando, Florida-area house would be a second home, when she planned for it to be a vacation rental.
The documents attached to the motion show Bolden went to great lengths to quash the criminal tax investigation before charges were filed. The motion repeatedly says prosecutors neglected to consider exculpatory evidence, but do not detail that evidence.
The supplemental attachments are rife with details not previously known about the origins of the case against Mosby and her financial relationship with her husband, the City Council president.
Nick Mosby did not respond Saturday to a request for comment.
The documents include an email from Wise to Bolden in April in which he said an earlier probe by Lydia Lawless, the bar counsel for the Maryland Attorney Grievance Commission, “raised numerous questions” about Mosby’s taxes. Wise does not say Lawless referred the matter to him.
The filing also includes a detailed account of what Lawless was seeking from Mosby during her investigation. After requesting Mosby’s taxes for 2014 through 2019, Lawless filed a request for documents substantiating Mosby’s charitable donations for those years, as well as business records for Monumental Squared, a business owned by Nick Mosby.
Documents included in the filing show Marilyn Mosby refused the request, arguing it was overly broad and amounted to an audit of Mosby’s taxes, which Lawless was not authorized to perform.
The motion to dismiss said that Lawless referred the case to Wise.
“The irregular manner in which this referral was made, instead of initiating a civil audit, demonstrates how Ms. Lawless and Mr. Wise conspired together to effectuate their mutual goal of damaging State’s Attorney Mosby’s reputation,” the motion states.
The documentation exchanged between Lawless and Mosby’s attorneys at the time seeks to suggest she was unaware of the content of the joint tax returns she filed with Nick Mosby. According to the exhibit, Nick Mosby filed an affidavit stating that he was responsible for filing their federal income taxes from 2014 to 2018. The state’s attorney reviewed the forms before signing only to confirm her income figures, Nick Mosby attested.
In that affidavit, Nick Mosby said his wife was unaware of a withdrawal he took from his 401(k) and the resulting tax liability, as well as ensuing installment payment plans he established with the Internal Revenue Service. Nick Mosby also said he did not inform his wife of the tax issues they faced until he learned of a $45,000 tax lien against them in an October 2020 article in The Baltimore Sun.
“My client is clearly an innocent spouse,” wrote attorney William C. Brennan Jr. of Mosby in a March 2021 letter to Lawless.
A separate attached letter from Bolden in September 2021 attempts to explain why Mosby began filing her taxes separately from her husband.
“In 2019, State’s Attorney Mosby contemplated separating from her husband for a host of reasons,” the letter states. “At this time, she decided to change her tax status from married filing jointly to married filing separately. Her knowledge of the couple’s pre-2019 taxes was very limited, and her experience with tax filing was equally limited.”
While documents attached to the motion show federal officials considered filing tax charges against Marilyn Mosby, no such charges have been filed. Her husband also faces no tax charges.
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