Endless Trials

KEITH DAVIS JR. was supposed to die. He had been on the phone with his girlfriend when four police officers cornered him into a dimly lit garage in West Baltimore. They had mistaken him for a robbery suspect, and they mistook his phone for a gun. After yelling at him to drop the gun, they fired 44 rounds at him. “Baby, I’ma die,” he told his girlfriend over the phone. Then she heard him ask the officers, “Why y’all tryin’ to kill me?”

It was June 2015 and tensions in Baltimore had just started simmering after the death of Freddie Gray, who in April of that year had suffered a severed spine when officers loaded him handcuffed, shackled, and unrestrained into a police van. For days, Baltimore had been engulfed in protests and confrontations with police — what half the city called a riot and the other half an uprising. Baltimore police were under scrutiny: The state’s attorney, Marilyn Mosby, had pressed criminal charges against the officers involved in Gray’s death, and the Department of Justice had opened an investigation into the department’s use of force and discriminatory policing. Had he died, Davis would have been the first person killed by city police since Gray, and the 68th in less than a decade.

But Davis didn’t die. Instead he was taken to the hospital, unconscious and in critical condition, where he underwent an emergency surgery that left bullet fragments lodged in his neck and perilously close to his spine. Then, days after the surgery, he was taken to jail.

Nearly four years since that day, bits of shrapnel still in his neck, Davis remains in prison and is now facing his fifth trial stemming from the events of that day. As The Intercept reported at the time, a jury acquitted Davis of the robbery accusation and a host of other charges, but convicted him of possessing a gun, which hadn’t been fired, but was found on top of a refrigerator in the garage where he was shot. Davis and his attorneys maintain that the gun was planted. Then, days after that verdict, prosecutors charged Davis with murder, saying that the gun was connected to the unsolved killing of a security guard named Kevin Jones. They have been trying to convict him ever since. His fifth trial, and fourth for the same murder accusation, was scheduled for early April but has been postponed to the summer. With each trial, new evidence has emerged calling into question both police testimony and prosecutorial conduct in the case. Meanwhile, while Davis went between prison and court, trial after trial, Baltimore saw soaring murder rates and one police and political scandal after the other. And while Davis’s case is known to relatively few in Baltimore, and even fewer outside the city, his ordeal — which will be chronicled in a new podcast launching this week — is reflective of a city plagued by broken institutions and deep distrust in its justice system.The Baltimore Police Department did not respond to requests for comment and a detailed list of questions from The Intercept. A spokesperson for the State’s Attorney’s Office said the case is “an open and pending matter” and declined to comment. A spokesperson for the Maryland Office of the Public Defender, which is representing Davis in his fourth murder trial, also declined to comment.

Had Davis died in the shooting, people in the city might have rallied around his name as they had for Freddie Gray, but police would have easily been able to dismiss his death, as they so often do in these cases, as the “justified” killing of an armed suspect.

“They wanted him to die,” said Larry Smith, an 18-year veteran officer, who worked with the Baltimore police’s internal affairs unit at the time of Davis’s shooting. Smith, who left the department two years later and has since been an outspoken critic of its culture and practices, said that he wasn’t directly involved in the investigation, but that several of his supervisors and colleagues in the unit had “expressed the hope that Keith would die.”

“The mentality behind that was that it would be a lot easier if he was dead,” Smith told The Intercept. “Because then he wouldn’t be able to tell his story. There would be no alternate version of events; there would only be the police’s version of events.”

“This Is Not a Prosecution. It’s a Persecution.”

Police and prosecutors’ initial version of the events is that on the day he was shot Davis had robbed a cab driver and then fled the scene, pointing and firing a gun at a group of officers who had chased him. Prosecutors filed 15 charges against him relating to the incident, but dropped the firearm discharge when it turned out the gun in question had been empty and all the shots fired had come from police. Then, months into the case, they tacked on a new charge: firearm possession by an individual with a felony conviction.

The officers at the scene, who against department policy were allowed to go months without giving statements about the incident, presented contradictory accounts in court, disagreeing on details like who had arrived at the scene first and who had cuffed Davis. There were other serious inconsistencies: The cab driver had said the robber had pointed a silver gun at him; the one recovered in the garage was green and multicolor. Davis’s fingerprints on the gun were partial and according to his attorneys, inconsistent with the firm grip on the weapon he would have needed to point it at anyone. Most damning perhaps was the cab driver’s description: He said the robber was a man wearing shorts, a short-sleeve shirt, and plaited hair. The robber was holding the gun in his right hand, but the driver didn’t notice any tattoos. That day, Davis was wearing long blue jeans and a tank top. His hair was cropped short and his arms are covered in tattoos. At trial, the driver got up from the witness stand to take a better look at Davis, then said flatly, “To my recollection, that don’t look like him to me.”

The jury in the case seemed unconvinced by prosecutors’ account and acquitted Davis of the robbery and of carrying or wearing a gun. But there was a gun in the garage, and Davis had a felony record, which was enough to convict him of the one count prosecutors had tacked on at a later date. Davis was sentenced to the required five-year minimum.

That’s when prosecutors doubled down. Within days, they said the gun had been used in Jones’s murder on the day Davis was shot. Davis and Jones didn’t know each other, and there was no clear motive for the killing. Davis had an alibi witness and another witness described an older suspect at the scene of the murder. Prosecutors, for their part, said that cellphone records put Davis in the vicinity of the crime scene. And then there was the gun, which Davis had already said was planted on him, but remained the main piece of evidence against him.

Davis’s first murder trial, in May 2017, ended in a mistrial after all but one juror voted to acquit.

Still, prosecutors pushed to retry him, and at his next trial, in October 2017, they produced a last-minute, surprise witness, David Gutierrez, an inmate from Texas who testified that he had met Davis in jail and that Davis had admitted to the murder when visiting his cell to buy alcohol from Gutierrez’s cellmate. This time, a jury convicted Davis of second-degree murder, acquitting him of the first-degree murder charge.

On the day of the verdict, Marilyn Mosby tweeted “Victory” from her official account.

Victory. Keith Davis Jr. was found guilty : https://t.co/1tEMkuXIXN – Baltimore pic.twitter.com/Q3v78fVwlt

— Baltimore SAO (@BaltimoreSAO) October 18, 2017

But Gutierrez’s story had holes. “His testimony was that Keith came to his cell and bought alcohol and randomly had this conversation with him, and it seemed kind of funky,” Latoya Francis-Williams, who represented Davis in the robbery and the first two murder trials, told The Intercept. “We didn’t get to speak with him, we didn’t get to see him, we didn’t know a name. We didn’t know anything.”

After the trial, Davis’s attorneys investigated Gutierrez and quickly figured out that he and Davis had never been housed in the same section of the jail at the same time, making an encounter virtually impossible. They also discovered that Gutierrez was not just the drug dealer prosecutors had presented him as, but an enforcer for a Texas cartel who had been involved in a series of violent crimes, including attempted murder and disposal of a murder victim’s body. Most damning, Gutierrez appeared to have a history as a “jailhouse snitch.” In a motion arguing for a new trial, the attorneys claimed that Gutierrez was recorded by corrections officials as a “confidential informant” and “had been parading around the country testifying in homicide cases in order to gain leniency for his gruesome crimes.” Prosecutors, they added, had kept that information from jurors, as well as details of Gutierrez’s past that could have challenged his credibility as a witness. At a hearing to dismiss the case, they presented Gutierrez’s cellmate, a devout Muslim who testified that he did not sell alcohol and had never met Davis.

Davis’s attorneys believed that the case should have been dismissed at that point. Instead, Judge Lynn Stewart Mays granted Davis a new trial because of what she called prosecutors’ “sanitized” presentation of Gutierrez’s record to the jury. But she found no misconduct in prosecutors’ actions. Mosby’s office quickly announced its intentions to try Davis once more.

At the third murder trial, in June 2018, there was one more last-minute surprise: security camera footage from near the scene of the murder that Davis’s new attorney, Natalie Finegar, said she had never known existed until it was mentioned in court. One video in particular showed a man resembling the victim, followed by a potential suspect who appeared to be bulkier than Davis and was wearing different clothes. Then, less than a minute later, another man appeared in the video, seemingly a witness who had never been identified. “I assumed that footage didn’t exist,” Finegar told the judge, according to local news reports. Prosecutors argued that Francis-Williams, Davis’s attorney in the prior trials, had seen the footage. Francis-Williams denies it. The judge conceded that prosecutors should have disclosed the video’s existence to the new attorney as well, but found the failure to disclose had been “unintended” and allowed the trial to proceed. Later, Finegar told a Baltimore Sun reporter that this had been “one of the worst discovery violations I’ve ever actually seen in my career as a criminal defense attorney.”

Once again, the jury couldn’t agree on a verdict, leading to another mistrial. “They played the video and the jury came back a hung jury, no one could tell who was in this video,” said Francis-Williams, who remained involved in Davis’s case after new attorneys took over his representation. “They allegedly had this since 2015. I had never seen it.”

Prosecutors pledged to retry Davis. A fourth trial — a rare though not unprecedented occasion — was scheduled to start on April 2, but has been postponed to July to allow the state more time to turn evidence over to the defense.

“So here we are again. The irony is, with each trial that goes by, there is another tidbit of information that is expository, exonerating Mr. Davis, and yet the state is still insisting to press on,” said Francis-Williams, who plans to represent Davis in a civil lawsuit over his shooting and the medical neglect she said he has been suffering in jail once the criminal case wraps up.

“But it won’t wrap up,” she added. “This is not a prosecution, it’s a persecution.”

“Baltimore Standards”

As Davis sat in prison and endured one trial after another, efforts to reform the Baltimore Police Department and restore residents’ trust in the city’s criminal justice system have flailed amid a disastrous string of leadership failures. Baltimore went through five police commissioners and one nominee in four years, replaced one after the other because of personal scandal, or for failing to rein in both the crime surge and police misconduct. Baltimore Mayor Catherine Pugh, who was elected shortly after Davis’s first trial, is now facing calls for her own resignation over yet another scandal.

Since Freddie Gray’s death, there have been more police killings, and many more instances of police abuse. In July 2017, shortly after Davis’s first murder trial, body camera footage was released showing Baltimore police officers apparently planting drugs at a crime scene. Police suggested the incident might have been “re-creation” of evidence — but the charges against the man who had been accused in that crime were dropped, and prosecutors reviewed dozens of other cases involving those officers, throwing out many of them. A year later, new video emergedshowing another officer pummeling a man against a wall and beating him bloody into a sidewalk.

But perhaps the biggest department scandal was the federal corruption indictment of nine officers with the department’s Gun Trace Task Force, an elite unit that was accused of robbing people of cash and drugs, as well as carrying guns to plant as evidence in case they killed unarmed suspects — a scenario eerily similar to what Davis always said police did to him. “They have done it before,” Smith, the former cop, told The Intercept, noting that officers would also sometimes clear murder cases by blaming other murder victims for them. “The police department has done this a lot, where they will pin open murder cases on other dead guys.”

Smith added that the department’s internal affairs division, which was tasked with investigating these very abuses, was “completely broken” in the years he served on it. The Gun Trace Task Force’s abuses, he noted, were not caught internally, but discovered when another local jurisdiction came across evidence of them and turned the case over to the feds. “[Internal Affairs] was a huge reason that the Gun Trace Task Force was allowed to begin, continue, and continue as long as it did,” he said. “There were conflicts of interest everywhere, cops investigating cops that they worked with, that they knew. Rumors of people leaking information to cops under investigation, warning them about investigations.”The Gun Trace Task Force scandal came to a peak in November 2017, when Sean Suiter, a veteran police officer and father of five, was found shot in the head with his own gun in a vacant lot after he told his partner he had seen someone there. A day later, Suiter was scheduled to testify before a federal grand jury in connection with the task force’s investigation. Suiter’s death rocked the city and a police department already scrambling to contain scandal. But nearly a year later, the independent panel tasked with investigating Suiter’s death found that he had killed himself, possibly because of his own connection to the corruption case, and staged the suicide to make it look like a murder. Few in Baltimore accepted that conclusion.

Meanwhile, Baltimore’s seemingly intractable police corruption problem touched Davis’s case too. Last year, Catherine Filippou, one of the officers who had shot Davis and testified against him at his first trial, resigned from the department. It later emerged that she was under federal investigation for alleged drug trafficking. Prosecutors said they hadn’t been aware of the investigation, but Francis-Williams said she found it suspicious that Filippou, a key witness, had been mostly erased from the state’s case during Davis’s trials.Also last year, the key prosecutor in Davis’s first three murder trials, Andrea Mason, was fired after Keith Davis’s wife Kelly discovered that she had been arrested and convicted on drunken driving charges after causing a multi-car crash hours after a jury began deliberating in Davis’s first trial. The conviction was kept under wraps until Davis publicly questioned Mosby’s office about it. “It’s a pattern,” Kelly Davis told the Baltimore Sunat the time. “Professional ethics don’t matter to the state’s attorney’s office.”

Perhaps the biggest blow to the state’s case against Davis, however, came in the form of a report by the Baltimore Civilian Review Board, an independent agency tasked with reviewing police conduct. In April of last year, the board found that the officers who had shot and arrested Davis used excessive force and later gave contradictory and non-credible testimony to investigators and in court. The board recommended that two of the officers be fired and two suspended. To date, only Filippou, one of two officers the board said should be suspended, has resigned. But while the review board was the first official agency to raise questions about Davis’s ongoing ordeal and police’s role in it, the body has no say over criminal proceedings, and prosecutors pressed on despite growing calls to drop the case.

Unless there is an acquittal, they have the discretion to try a case as many times as they like — and in Davis’s case, they have made it clear that they have every intention of doing so. But in a city that continues to struggle to restore residents’ trust in its institutions, Davis’s continued prosecution comes at a cost.

“What I have always said is people really do have to have faith in the criminal justice system. Victims, witnesses, defendants, jurors, they have to really be able to believe that the system works,” said Francis-Williams. “But that’s not happening, that can’t happen when there’s a clearly innocent man and the state will continue to prosecute him in the name of politics.”

“Even by Baltimore standards, this is egregious,” she added. “Even by Baltimore standards, this is a new low.”

“The Wrong Man but the Right Wife”

I met Kelly Davis in April 2016, a year after Freddie Gray’s death and shortly after Davis’s first trial. In West Baltimore, the neighborhood where Gray had been living, there were rallies and cookouts to commemorate his life and take stock of what had and hadn’t changed in the tumultuous year since his death. Baltimore had a new police chief, and a crowded mayoral election was underway. The U.S. Department of Justice would soon issue a damning report about the Baltimore Police Department’s patterns of abuse, including excessive force, and everyone was talking about the need to rebuild trust between the city’s most heavily policed residents and its law enforcement and justice systems.

I met Kelly downtown, outside the city’s sprawling jail complex, surrounded by her four children and a handful of protesters as they unrolled a “Free Keith Davis Jr.” banner large enough for him to see from his window several floors up. They couldn’t see him, but they banged on drums loud enough to reach the brick building’s upper floors. Davis started banging on his window in response, and soon other inmates joined in.

“Freddie Gray passed away,” Kelly told me then. “Had he lived, he would have been arrested, had charges thrown on him, would have had to fight the court system, would have had to fight the State’s Attorney’s Office. And that’s what Keith is going through now.”

Just a year earlier, Marilyn Mosby had stood a short distance away, on the steps of Baltimore’s War Memorial, and announced in a nationally televised press conference that she was charging six Baltimore police officers with Gray’s death. “I have heard your calls for ‘no justice, no peace,’” she had said from the podium. “Your peace is sincerely needed as I work to deliver justice on behalf of this young man.”

Mosby’s swift indictment of the officers involved in Gray’s death stood in sharp contrast with the way that police killings had been handled elsewhere — most notably in Ferguson, where a botched process dragged on for months before a grand jury declined to indict the police officer who had killed 18-year-old Michael Brown. Virtually unknown outside Baltimore, Mosby, a black woman and the youngest prosecutor of a major U.S. city, became an overnight sensation and a heroine to those demanding police accountability. She has largely coasted on that reputation, winning re-election last year and recently gaining praise for joining other district attorneys — some more genuinely progressive than others — in announcing that she would no longer prosecute the possession of marijuana, which has disproportionately been enforced against African Americans, in Baltimore as virtually everywhere in the country.Yet by many measures — whether one prizes crime reduction and solved murders or police accountability — Mosby’s tenure has largely been a failure. The indictments that catapulted her into national fame ended in a mistrial and three acquittals, before she dropped charges against all remaining officers in Gray’s case. While hardly the responsibility of her office alone, the murder rate in Baltimore has been soaring — with 309 murders in 2018, up from 211 in 2014, the year before she was elected. Only 1 in every 4 murders were solved last year.

Some have also called into question the decision not to prosecute marijuana possession, no matter the amount, in a city plagued by violence and where the drug remains illegal. “On the surface, it sounds good,” said Ivan Bates, a former prosecutor who unsuccessfully challenged Mosby in last year’s re-election campaign. “Until you realize what you have done is you have now created a marijuana turf war, with these guys killing each other for control of the black market.”

Mosby’s own relationship to Gray’s case, too, was more complicated than the initial headlines let on. Just weeks before Gray’s death, Mosby, who had campaigned on the promise of alternative sentencing for nonviolent drug offenders, had asked police to target for enhanced drug enforcement a particular intersection in the West Baltimore district that her husband represented on the city council. Gray was picked up just a couple blocks away.

Kelly Davis had skipped out on the Freddie Gray protests. She was no activist then and had believed in the system until her husband was caught up in it. Still, when Mosby had pressed charges against the officers involved in Gray’s death, Davis had cheered her on. “I felt like she was on our side, and she could not be a pawn of the system,” she told me in 2016. “That’s why when this happened to Keith, we were like, as soon as it hits her desk, she’s going to make it right, she’s going to fix it.”

That hope quickly faded, and Davis has since become one of Mosby’s fiercest critics. In April 2016, Davis confronted Mosby at a heated community meeting. “You got the wrong man but you got the right wife,” she warned her, before the prosecutor walked out. “I will be everywhere you go because you are a public servant and you have to answer to us.”

Davis kept her word and kept publicly calling out Mosby’s practices. At a forum last year, Davis was escorted out of the room after once again confronting Mosby, who told the crowd “repeat violent offenders don’t like me” — a bizarre reference since Davis has no criminal record at all. Last month, as Mosby appeared in court to defend herself after a former prosecutor sued her for wrongful termination, Davis was in the gallery. Davis said Mosby tried to get her removed from the courtroom before a judge reminded her that the trial was a public proceeding. At times, Keith Davis’s own trials seem to have been overshadowed, even defined, by a battle that’s become deeply personal.

“I ran a race against her and had cases with her; she’s a person that will do anything to win, that’s just who she is,” said Bates, referring to Mosby. “Once she was challenged, and once the case was thrown out, that became her personal reason to win, at all cost.”

Bates, who over his 24-year career worked both as a city prosecutor and defense attorney, said he started paying attention to Davis’s case after the second murder trial. He was so bothered by the “jailhouse snitch” testimony and by Mosby’s “victory” tweet that he reached out to Davis’s legal team and offered to help, pro bono, with the motion to retry.

“I had never really seen anything like this from a prosecutor’s office, in my entire career,” Bates told me. “It was so evil, it was so personal, it was like, ‘win at any cost, do anything.’”

“This isn’t about justice, it’s about a victory for her,” he added. “Win by any means necessary, that’s the worst trait to have from a prosecutor.”

But if Mosby won’t give up, neither will Kelly Davis — though the only thing that drives her is her determination to get her husband home. “I don’t see an end to this,” she told me recently. “For us, it doesn’t stop until he’s free.”

Davis’s perseverance is also why anyone remembers her husband’s name and story in a city where headlines about violent deaths, corrupt law enforcement, and young black men charged with murder are so routine that it’s hard for anyone to keep track. “Kelly won’t go away,” said Smith, the former Baltimore cop. “If Kelly went away, I don’t think anybody would know Keith Davis’s name, the case, anything.”Davis believes her fierce advocacy for her husband has led, at least in part, to the state’s obstinacy to convict him despite three trials that failed to so. “Because I stood up, and advocated for Keith, they have now kind of personally gone after him,” she told me.

“My husband is innocent. That I’m clear on. That has never changed, no matter how many times they try him, no matter how many times we do this,” she added. “But this has opened my eyes in so many ways to what so many innocent men go through and suffer. And then you hear 30 years later that they’re free, but there was nobody to advocate for them, there was nobody to fight.”