The Trials of Keith Davis, Jr: How Baltimore Prosecutors Pursued a Police Shooting Victim

“Victory,” the Baltimore State’s Attorney’s Office tweeted in October after Keith Davis Jr. was found guilty of second-degree murder.

Keith’s wife Kelly and members of the activist group Baltimore Bloc who have been advocating for Davis for years called attention to the language: the SAO, headed by celebrated, purportedly progressive prosecutor Marilyn Mosby, best known for indicting the six officers charged in the death of Freddie Gray, declared “Victory” instead of invoking “Justice.”

It was evidence that, in Kelly Davis’ words, Mosby and the SAO have “a vendetta” against her husband.

Keith Davis Jr.’s story begins on June 7, 2015, when he was shot by the Baltimore Police three times near the Park Heights neighborhood in West Baltimore. The police claimed he robbed an illegal cab driver or “hack,” then ran away. Police took off in pursuit and shot at him a total of 44 times. Kelly Davis was on the phone with her then-fiancee as police first fired the dozens of shots. “Baby,” he told her, “I’m gonna die.”

Eventually, Davis was chased into a nearby garage, where police say he hid and refused to surrender. Police continued their gunfire and said that when they finally approached Davis, he lay shot, barely conscious, and holding a handgun.

Davis survived but was hit with 15 charges by the SAO, including assault on police officers and armed robbery. In December 2015, the SAO added firearm possession with a felony conviction. When Davis went to trial in February 2016, he had been in jail for more than 200 days, far longer than Maryland law requires as part of the right to a speedy trial (180 days). Davis was then found guilty on that possession charge only, likely because the hack cab driver testified that Davis did not resemble the man who robbed him.

Not long after the trial, on March 2, 2016, Davis was charged with the murder of Kevin Jones, a man shot hours before Davis was shot by police. The state said ballistics evidence proved the weapon Davis was found guilty of possessing when he was shot was related to Jones’ murder. There were, however, no eyewitnesses to the Jones murder and there was no personal connection between Davis and Jones.

At the murder trial in May 2017, Davis’ defense attorney Latoya Francis-Williams claimed that the gun was planted and that Davis’ fingerprints (really, a partial palm print) were put there while he was unconscious in the garage. Davis’ attorneys also said that the state violated Brady v. Maryland when it failed to disclose DNA evidence that contradicted the state’s narrative at his trial on armed robbery and firearm possession charges.

Kelly Davis and Baltimore activists suggested that the police covered up what was the first police shooting after Freddie Gray’s death by planting the gun. Accusations of such high levels of police misconduct have become particularly compelling given the massive scandal surrounding the Baltimore Police Department Gun Trace Task Force, which was federally indicted this year for, among other things, stealing money and stealing, dealing, and even plantingdrugs.

Unsurprisingly, given the weak and circumstantial evidence, Davis’ trial ended with a hung jury.

At Davis’ second murder trial, in October 2017, the state introduced a star witness, David Gutierrez, who testified that Davis confessed to the murder while he was in Gutierrez’s cell, purchasing jailhouse liquor from a cellmate.

On Oct. 17, Davis was found guilty of second-degree murder.

But on Dec. 4, the Circuit Court for Baltimore City granted Davis a new trial — mostly due to Gutierrez’s specious testimony. At the motion for a new trialhearing, Davis’ lawyers presented Gutierrez’s cellmate, Itisham Butt, who testified that he did not sell liquor (he is a devout Sunni Muslim) and that he had never even met Davis in jail at the time Gutierrez claimed. Davis’ lawyers also argued that, whereas the SAO had presented Gutierrez as just a drug dealer, he had actually been more involved in a RICO case tied to a Texas drug cartel, and had committed violent crimes such as disposing of a dead body by burning it. Francis-Williams, Davis’ attorney, characterized Gutierrez as an “enforcer” who is now “parading around the country testifying in homicide cases in order to gain leniency for his gruesome crimes.”

According to a study by the Northwestern University School of Law’s Center on Wrongful Convictions, such “jailhouse snitch” testimony is the leading cause of wrongful convictions in capital cases. “For the most part,” the study’s authors wrote, “the incentivised witnesses were jailhouse informants promised leniency in their own cases or killers with incentives to cast suspicion away from themselves.”

In September, a superior court judge in Orange County, California ruled that mass shooter Scott Dekraai could not be sentenced to death because the local sheriff’s department failed to disclose information about its use of what has been described as a network of jailhouse informants.

The Circuit Court in Baltimore did not go so far as to say there was “misconduct” by the SAO, but it granted Davis a new trial anyway—due to what Judge Mays referred to as the state presenting a “sanitized” version of Gutierrez’s criminal record to the jury.

“If you recall in October the State’s Attorney for Baltimore City sent a tweet to the world, ‘victory’,” Davis’ attorney Francis-Williams said in a statement released after Davis was granted a new trial. “Well, we just snatched victory from the jaws of defeat. Our message to the world is that this is what Justice looks like and we will not stop fighting until Mr. Davis’ name is cleared. The State will rue the day she decided to use Mr. Davis’ case as a political football.”

Undeterred, the SAO announced they would try Davis once more.

It will be the third time he faces murder charges. Kelly Davis, meanwhile, maintains the only thing her husband has ever been guilty of is surviving a police shooting.