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Shot By Police, Then Convicted In A Murder He Says He Didn’t Commit. Now He’s Facing COVID-19 Behind Bars.

The 2015 shooting left Keith Davis Jr. with respiratory issues. His defense attorney says that as he appeals his case he should be freed from prison.

Photo illustration by Elizabeth Brown. Photo by Getty Images.

Kelly Davis feels helpless. She worries about her husband, Keith Davis Jr., who is incarcerated at the Maryland Reception, Diagnostic and Classification Center. As of Sunday, there have been a total of 29 cases of COVID-19 (two incarcerated people and 27 employees) at the Baltimore intake and classification facility, known as MRDCC, according to the Maryland Department of Corrections.

Although her fears about Keith are new, Kelly has been a fearless advocate for Keith and his highly unusual case for nearly five years. In 2015, Keith was shot by Baltimore police officers, then later charged in an unrelated murder and tried four times. Last year, Keith was convicted of second-degree murder.  At Keith’s sentencing in March, he was hit with a 50-year prison term. Now he says he is especially vulnerable to COVID-19 at MRDCC because he has respiratory issues stemming from when the police shot him. 

“Keith was completely healthy before he was shot by Baltimore City Police in his face,” Kelly told The Appeal. “It did severe damage to his nasal and sinus as well as, I believe—when he was intubated—it messed with his lungs and so he has had severe asthma attacks. I feel so helpless because the reality is I can do everything I need to do to keep myself and my children safe, but I can’t do anything in Keith’s case.” 

On June 7, 2015, Keith was chased by police, who said he had just tried to rob a cab driver. During the chase, Keith fled into a garage where officers fired 44 shots at him. Keith was struck three times, and officers said they found a gun on top of a refrigerator in the garage. Among the 15 charges against him were assaulting a police officer and armed robbery. 

Months after Keith’s arrest, the Baltimore City state’s attorney’s office added a firearm possession with a felony conviction charge. When he went to trial in February 2016, the cab driver he was charged with robbing testified that Keith didn’t resemble the man responsible for the crime. The sole charge on which he was convicted was the possession of a gun with a felony conviction. 

Days after the trial, Keith was charged with the murder of Kevin Jones, who was killed near the scene where he was shot by police. The Baltimore City state’s attorney’s office claimed ballistics evidence showed that the gun police allegedly found near Keith—which he was convicted of possessing—was used to shoot Jones. Kelly has long argued that Keith was maliciously prosecuted because he survived a police shooting that occurred after the in-custody death of Freddie Gray. She has become a fierce proponent of her husband and a harsh critic of Baltimore City State’s Attorney Marilyn Mosby.

At his 2017 trial, Keith’s lawyers argued the gun found on him was planted and stressed that evidence linking him to the Jones murder was circumstantial. Keith’s trials were also marred by allegations of a Brady violation and testimony of a jailhouse informant with credibility issues. 

On Feb. 28, Keith was supposed to be sentenced for his 2019 second-degree murder conviction. But in court, during a short recess, Keith began gasping for air, which Kelly said was an asthma attack. Circuit Judge Sylvester Cox then postponed sentencing, but resumed on March 2, where Keith was sentenced to 50 years. The conviction is now being appealed.

In MRDCC, Keith shares a cell, which makes social distancing impossible. Kelly said Keith received a mask only in early April. She worries about staff members coming in and out of the jail and potentially infecting incarcerated people. Keith’s cell has a door rather than a gate, so guards cannot simply walk by and see how he is doing. “Keith has severe respiratory issues and he is in a cell with a steel door where if he is in any distress, just on a regular day not being able to breathe, the guard is very far and they would have to find the keys to open his door,” Kelly said.

“He doesn’t have unlimited access to soap to wash his hands as often as he would need to,” Davis’s public defender, Deborah Katz Levi, told The Appeal. “He has no choice about how far he can keep himself from people when he is sleeping or eating or walking in the hallway.”

On March 23, Levi filed a motion for emergency conditional release. Because of the pandemic and Keith’s respiratory issues, Levi argued that he should be temporarily released and put on 24-hour GPS home monitoring only for the duration of the pandemic, not the duration of his appeal.

At a hearing on April 7, assistant state’s attorney Patrick Seidel opposed Keith’s temporary release. According to notes provided to The Appeal by the state’s attorney’s office, Seidel cited the details of the Jones murder and “conflicting information” regarding Keith’s health issues. Seidel seemed to argue that there are medical records from 2017 in which Keith “denied having asthma or any breathing problems” and argued that medical records indicating that he has taken medication for asthma do not necessarily prove he has asthma.

“He really kind of went into Keith being the boogeyman and then he said, ‘Well, we don’t know that he has asthma’ and Keith’s defense attorney said, ‘That’s the state’s position, that he doesn’t have asthma?’” Kelly Davis said. “Everyone knows it’s heavily documented that we got out of court back in February because Keith had an asthma attack.”

Seidel said another piece of “conflicting information” was a Feb. 28 jail call between the Davises that occurred about an hour after Keith suffered what Levi characterized as “extreme pulmonary distress” due to asthma. During that call, Keith said he still wanted to go through with his sentencing that day.

But in the 2019 “Undisclosed” podcast “The State v. Keith Davis, Jr.,” host Amelia McDonell-Parry reported that “the gunshot to his face severely fractured his jawbone, requiring major surgery, and the incisions to his cheek and neck had become seriously infected. The damage to his sinus cavity hindered his breathing and caused painful nerve damage.” 

“Not only is his breathing really bad and his lungs really bad,” Kelly said, “but he’s losing oxygen somewhere and the medical treatment in the prisons are so poor that there’s no specialist to go in to see. He has severe respiratory issues and the reality is that if he were to contract this disease, he has a higher probability of dying because his body just can’t fight it.”

When he comes to court, Keith brings an inhaler. And after seeing Keith struggle to breathe during visits and wheeze during their phone calls, Kelly has organized mass call-ins to the prison to try to get him medical attention. “He has significant respiratory issues that make him particularly vulnerable,” Levi said. “He has no ability to follow the social distancing guidelines within MRDCC.”

Zy Richardson, communications director for the Baltimore City state’s attorney’s office, said she could not specifically comment on Keith’s case. But in a email statement to The Appeal, Richardson described her office’s review process for release recommendations in the COVID-19 pandemic. 

“We assessed and recommended over 160 individuals for release, we’ve reduced the pre-trial population by almost 10 percent and we drafted and provided the Governor with a comprehensive proposal that will lead to the release of hundreds of prisoners,” Richardson wrote. “We have never considered certain serious offenses for release, including murder, rape, domestic violence, and gun offenses. Anyone charged and/or convicted with those offenses would not be eligible for review.”

On April 16, Judge Philip Jackson denied Keith’s request for temporary medical release.

On April 23, the Justice Policy Institute issued a policy brief that demanded “a much more ambitious decarceration strategy” from the state of Maryland as coronavirus spreads. The institute cited a forecasting model predicting that the current number of people in Maryland prisons diagnosed with COVID-19—157 staff and 50 incarcerated people—could significantly increase to “6,474 incarcerated individuals and 1,418 staff” in just three weeks. 

“I sat on a call and listened to [Mosby’s] prosecutor basically do everything he could to essentially make sure my husband dies because Keith will not survive this if he gets sick,” Kelly said. “We don’t even have the death penalty in Maryland and leaving these men like Keith in there—we’re reactivating it.”