No Interim Suspension For Marilyn Mosby Perjury Conviction

The former Baltimore City State’s Attorney has not been interim  suspended by the Maryland Supreme Court in the wake of her perjury conviction per an order entered today.

In pertinent part

ORDERED, pursuant to Maryland Rule 19-738(h)(2), that the hearing shall be delayed until the completion of appellate review; and it is further

ORDERED, that the request for immediate suspension of Respondent from the practice of law in Maryland is denied without prejudice.

The dissent of Justice Gould, joined by Justice Biran. described the conviction

Respondent, Marilyn J. Mosby, was elected as the State’s Attorney for Baltimore City in 2014 and was re-elected in 2018. As a public servant, Ms. Mosby was eligible to participate in the deferred compensation plan offered by the City of Baltimore under 26 U.S.C.A. § 457(b) (“457(b) plan”), and she did.

On March 27, 2020, in response to the coronavirus epidemic, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-136, 134 Stat. 281 (2020 (“CARES Act”). Among other things, the CARES Act offered favorable tax treatment for distributions to qualified individuals made from eligible retirement plans, including 457(b) plans, during the pandemic. Such treatment included waiver of the 10 percent penalty otherwise imposed on early withdrawals.

In 2020, Ms. Mosby directed two requests, roughly six months apart, to the City’s Deferred Compensation plan administrator for early withdrawals under the CARES Act, resulting in distributions of $36,000 and $45,000.

The ensuing federal charges resuled in a guilty verdict

In November 2023, after a seven-day jury trial in the United States District for the District of Maryland, Ms. Mosby was found guilty of two counts of perjury. One count was based on her signature on the first withdrawal form and the other was based on the second.

The present issue

The Court issued a show cause order under Rule 19-738(d) directing Ms. Mosby to “show cause in writing why she should not be suspended immediately from the practice of law in the State of Maryland until further order of this Court[.]” In her response, Ms. Mosby does not dispute that she was convicted of serious crimes. Instead, Ms. Mosby emphasizes the “utter panic,” “closure of entire industries,” and the deaths “in the thousands” that resulted from the COVID-19 pandemic, all of which, she says were compounded by the “racial reckoning in [the] United States.”

She contends that in “this tumultuous period, [she], like thousands of other Americans, withdrew money from her ‘own’ retirement savings account.” Ms. Mosby notes that according to a government witness at trial, 739 Baltimore residents did the same thing, but “none of [them] were prosecuted.” She points out that she had every right to withdraw her own funds from her retirement account and insists that her conduct involved neither deceit nor dishonesty. Ms. Mosby contends that neither a client nor the public was harmed and thus her convictions amount to “a personal tragedy amidst the backdrop of an otherwise unimpeachable legal career.” As to what the convictions reveal about her character, Ms. Mosby said this:

The crime itself offers little insight into her character. At best, she withdrew her own money. At worst, she committed perjury in obtaining her own money.

Ms. Mosby’s assertion that no client was harmed by her conduct is beside the point. She was not a lawyer in private practice serving clients; nor was she a government lawyer representing an agency of the State or local government. She was the State’s Attorney, representing the State of Maryland in criminal prosecutions in Baltimore City. What matters is what her conduct, as found by the jury, says about her character.

Ms. Mosby has not come to terms with the gravity of the offenses of which two juries found her guilty. Her insistence that the public was not harmed by her conduct, as found by the jury, is simply wrong. Because of the shutdown of large swaths of the economy, millions of Americans lost their jobs. Others were furloughed; others saw their hours reduced; and still others had their wages reduced. Ms. Mosby, a public servant whose salary was paid by Maryland taxpayers, was one of the lucky ones who continued to receive her full salary without interruption.

The CARES Act aimed to alleviate such financial hardships by, among other things, permitting qualified individuals to tap into their retirement accounts without incurring the 10 percent penalty. The federal government went deeper into debt to provide this and other forms of financial relief to those in need. This had a cost—a cost to be borne by, among other people, the same Americans (including Marylanders) who lost their jobs, saw their income go down, and depleted their savings to weather the coronavirus storm. And future generations who will be saddled with the federal government’s growing debt will share in the costs as well. So, contrary to Ms. Mosby’s assertions, the public was harmed by her perjury, as found by the jury, that enabled her to avoid paying a penalty on the early withdrawals.

To be sure, Ms. Mosby had a right to withdraw funds from her retirement account. But as Ms. Mosby should know, that’s not the point. Because she did not qualify under the CARES Act, she was required to pay the penalty associated with her withdrawals. As one of the lucky ones who continued to be paid a full salary with public funds, that’s not too much to expect. But she did not do that; instead, as the jury found, she perjured herself to take advantage of a federal benefit for which she did not qualify. And by avoiding the penalties that she was required to pay, she did so at the expense of the very people she was elected to serve, as every dollar she saved by committing perjury was another dollar the federal government had to borrow…

I assume Ms. Mosby will file post-trial motions in the trial court and, if need be, pursue an appeal. Of course, she has a right to do so, and no member of this Court would ever hold that against her. But at this stage, we must determine, based on the information that we have, whether Ms. Mosby’s immediate suspension is warranted “to protect the public from acts of an attorney who has been convicted” of crimes involving intentional dishonesty. Attorney Grievance Commission v. Protokowicz, 326 Md. 714, 715 (1992).

Ms. Mosby was convicted by two juries of her peers of separate crimes that speak directly to her character. Although I may be persuaded otherwise if this matter comes back to us on a full record, for now, based on the findings of both juries, I am constrained to conclude Ms. Mosby presents an unacceptable risk of harm to the public if permitted to practice law in Maryland. This conclusion is informed by my concern that the public perception of the judicial system would be undermined if an attorney convicted of such crimes is not promptly sidelined.

Ms. Mosby made powerful enemies in the Freddie Gray prosection of police officers.

The Washington Informer published an opinion piece by E. Faye Williams  that  suggests that her claim of selective prosecution is well-founded.

Slate had extensive coverage of the prosecutor and the prosecution.

There was one major red flag in [prosecutor] Wise’s Baltimore portfolio, though: His targets continued to be almost all Black. Shortly after he took office, he indicted police commissioner Darryl DeSousa, a Black man, for failure to pay taxes. He did not indict the white police commanders who oversaw the Gun Trace Task Force, one of whom was named in court as a conspirator. Wise did indict two white Gun Trace Task Force officers, but only because they ended up being heard on a wiretap that was tracking a drug crew. The officers had extraordinary records of complaints but were not under investigation until the wiretap.

Wise seemed to approach his new role in Baltimore as he did his position in Congress. The Baltimore defense bar also became concerned with his apparent antagonism toward lawyers. He indicted and convicted Kenneth Ravenell, a prominent Black attorney, for money laundering. He then indicted Ravenell’s own attorney and defense investigator for obstruction of justice. He was unsuccessful in those additional cases. Wise even accused the National Association of Criminal Defense Lawyers of taking laundered money from Ravenell at one point…

In 2023, Wise was demoted and removed from his position as anti-corruption chief. He was also removed from prosecuting the Mosby case. His boss, U.S. Attorney Erek Barron, had taken over in 2021 and had put some checks on him. As in Congress, Wise had a brief but intense reign in Maryland that ended with a whimper. He transitioned to the DOJ’s public integrity section, where he has been attracting controversy during his prosecution of Hunter Biden for tax and gun offenses—a case Biden’s team claims is “politically motivated.”

Ultimately, Wise’s impact in Baltimore was to indict a handful of police officers for racketeering and try a series of other financial cases with narrow targets. But the cultures of police brutality, cover-ups, prosecutorial misconduct, and even purchasing political influence in Baltimore largely remain unbothered, and both Mosby and Wise played important roles in limiting the fallout.

I would note that it is highly unusual for a court to decline to impose an interim suspension after a “serious crime” conviction. (Mike Frisch)