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

Protestors at the Baltimore City State’s Attorneys Office

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.

Are Harris County Officials Trying to 'Sabotage' Bail Reform with Misleading Data?

Are Harris County Officials Trying to 'Sabotage' Bail Reform with Misleading Data?

Bail has been operating differently in Harris County, Texas, lately. In April, a judge issued an injunction in response to a lawsuit filed against the county by nonprofits Civil Rights Corps and Texas Fair Defense Project and law firm Susman Godfrey alleging that its practice of jailing people who couldn’t pay bail was unconstitutional. Under the injunction, no one is supposed to be kept behind bars because they’re too poor to afford bail.

Now, some people deemed to be low-risk through an assessment are getting released on a personal bond, or a promise to pay a certain amount if they fail to appear in court, without having to post it up front. Other defendants are given a secured bond, but must be released from jail within 24 hours if they say they can’t pay.

County officials are arguing that the new system isn’t working. Late last month, they shared data with the Texas Tribune, and more recently with In Justice Today, showing that nearly 45 percent of people released from jail after 24 hours failed to return to court for subsequent hearings.

But those numbers are not what they seem. Local public defenders and criminal justice advocates argue that judges and county officials themselves shoulder much of the blame.

“All of the failure to appear problems go back to the county,” Jay Jenkins, project attorney for Harris County with the Texas Criminal Justice Coalition, argued.

It used to be that defendants were typically required to return to court for a hearing seven days after being released. But earlier this year, the courts changed the rules to require misdemeanor defendants booked in the jail to come back within one business day. According to advocates and attorneys, the change was meant to improve due process by offering people a full hearing shortly after arrest.

But the requirement that defendants return within one business day of being booked has presented two challenges. One is technical: The county is trying to update its information system, but the system is still automatically, but incorrectly, setting arraignments for those charged with misdemeanors for seven days after release in the computer system, according to Alex Bunin, Chief Public Defender for Harris County.

So jail employees often tell people that they have to return in seven days, as it says in the computer, not one business day, said Sarah Wood, another public defender. Defendants take those instructions to heart, sometimes more than what’s on their physical paperwork, which should contain the correct date. “They’re very insistent: ‘No, the jailer told me it’s next week.’ They defer to authority,” she said. Others may have trouble understanding the paperwork, which can often be difficult to read due to small type, handwriting, legalese, and confusing instructions. Even “lawyers have a hard time figuring it out,” Wood said.

“The reason that [the failure to appear rate] is not higher is because lawyers working the bail hearings have been actually telling their clients, ‘I don’t care what the sheriff tells you… I don’t care what the court system says online when you look it up — your date is the next day,’” Jenkins of the Texas Criminal Justice Coalition said.

The county disputes this account. “I don’t think that the high failure rate has anything to do with confusion over court dates,” said Ed Wells, court manager for Harris County. He contended that if judges or court staff discovered that a defendant was given paperwork with a different court date, they would reset the hearing for that date. That wouldn’t necessarily account for those who are still being told by jailers to come back in seven days, even if their paperwork says one business day. But Wells argued he doesn’t think that’s occurring, although he noted the sheriff’s office would better be able to respond. (The sheriff’s office didn’t respond to a request for comment.) “All of the bond documents I’ve seen, when the sheriff is putting in that court date, they circle it and bring it to the attention of the person,” Wells said.

Even if everyone received a correct court date, many would still risk missing their hearings, since it can take as long as 20 hours for someone to be processed and released from jail.

“We had a person in court a few weeks ago … who was granted a personal bond [and released] at 7am inside the jail, and when they were filling out his bond paperwork they were putting the court date on there of the same day,” Wood said. “We were like, ‘Well how do you expect him to appear when you’re telling everyone it’s going to take five or six hours to process out of the jail?”

Emails reviewed by In Justice Today showed public defenders discussing clients who were still being processed at 3:30 a.m., even though their court hearings were later that morning. Given that the clients still had eight to 12 hours to go before getting released, there was no way they could make their scheduled hearings.

Wells argued that that this issue wasn’t common. “I don’t think it’s the norm at all,” he said.

Even if defendants get released early in the morning, that gives them little time to go home and then return. After a night in jail, many will want to sleep and shower. It can be tough to get back quickly if they don’t have cars or money to pay for a cab, according to Elizabeth Rossi, an attorney with Civil Rights Corps.

Meanwhile, because the judges aren’t yet comfortable with the new system, they’re more likely to release someone who is deemed to be low risk on a personal bond. That person can then access pretrial services. But that means the higher-risk people, who may face barriers to returning to court, are being booked into the jail. After 24 hours, if that person can’t afford bail, he’s released — but typically without any conditions or services like text message reminders that could help him come back.

“Any problems with nonappearance simply indicate that the county needs to figure out a better system for accurately informing people of their court dates, providing reminders of those court dates, and providing transportation or services to people who have trouble getting to court,” Rossi said. “The answer is not to lock up those people who can’t pay money bail until they plead guilty in order to get out.”

Wells declined to comment on the risk levels of people failing to appear. “That is something we’ll be looking at,” he said.

The data itself may also be misleading. In a letter to Harris County Attorney Vince Ryan reviewed by In Justice Today, Commissioner Rodney Ellis, who had received a copy of the report, raised questions about how failures to appear were being calculated. “While the data in this report is interesting, it lacks some key context that would be useful for interpretation,” including how bond failures were defined and reported, he wrote.

Wells acknowledged that a person who failed to show up for a single court hearing over one arrest would be counted as multiple failures to appear if he or she faced multiple charges — one count for each charge, if each was assessed with a bond, which is typical. “I don’t know how you would count that differently,” he said.

But that means the failure rate isn’t just counting individuals — instead, a small group could be driving up the numbers. “Just a small population of people are really making the percentage extremely high,” Bunin, the public defender, said. He noted one client was facing three charges for the same incident, and when he missed three court dates, that was counted as nine failures to appear. Yet it was just one person and one case.

And many of the people failing to come back to court are the public defenders’ homeless or severely mentally ill clients. “Those people cycle through our system constantly,” Bunin said. “I think if you took those people out of the mix, the number would drop down quite a bit.”

Some advocates see the county’s data, and the practices driving the numbers up, as a form of opposition to the court order reforming Harris County’s bail system. “The judges are doing this to make the failure rates high so when the case comes up they can say, ‘See, we tried and it didn’t work,’” Jenkins argued. “This is sabotage.”

The data also belies the positive side of the story: fewer people behind bars. “We shouldn’t lose sight of the fact that more than 6,000 people have gone home to their families and homes and communities as a result of this order,” Rossi said.

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Baltimore’s Latest Plan To Clamp Down On Crime: Tricking And Trapping Youth

Once again, police are vilifying kids.

Children from the Pleasant Hope Baptist Church attend a rally and news conference held by the Campaign for Justice, Safety and Jobs in Baltimore, Maryland. During the rally, the advocacy group called for a ‘six-point plan for police reform in Baltimore.’
Win McNamee/Getty Images

Baltimore’s Latest Plan To Clamp Down On Crime: Tricking And Trapping Youth

Once again, police are vilifying kids.

With the number of lethal and nonlethal shootings, robberies, and assaults on the rise in Baltimore, police and government officials are clamoring for ways to make sense of what is happening and stem the violence. There’s been public finger pointing and posturing, but there isn’t a consensus about who among them should be blamed for the current dilemma. Some say the responsibility falls on judgesSome say it is the fault of State’s Attorney Marilyn MosbyOthers say Mayor Catherine Pugh is the problem. But there is at least one narrative that the Baltimore Police Department, city leaders, and some community members seem to agree on: that crime isn’t just an adult problem but a juvenile one as well.

To hear them tell it, youth in Baltimore have gone stark raving mad — robbing, assaulting, breaking property, and swearing in front of children. They are miscreants who are “out of control” and committing a “rash of violent juvenile attacks” and “wreaking havoc.” They are kids who must be stopped. But a new approach to tackling these so-called violent culprits points to a much more unnerving problem: that Baltimore is reviving disastrous narratives about kids that prevailed during the 1990s.

During a public safety event early this month, Baltimore Police Commissioner Kevin Davis announced a new decoy unit of undercover, “young-looking officers” that will patrol the streets for misbehaving youth. “I’m convinced that these juvenile offenders travel in packs. I’m convinced that they look for people who appear vulnerable to them,” he said.

At a press conference days later, Davis noted that many violent crimes are committed by repeat offenders who have been arrested and released. “They either need to be interrupted with a jail cell or some other type of intervention. But the way we’re doing it now is not working,” he said. The commissioner has also decried the number of kids transferred from adult court to juvenile court. In addition to the new decoy unit, more officers will be stationed in South Baltimore and the Inner Harbortwo of five neighborhoods with the most white residents.

“For the rest of the year, you will see an enhanced police presence, and that is not going to go away,” Davis reportedly told an applauding crowd.

Not everyone is clapping, though.

“It, for me, sounds like a return of the myth of the superpredator,” juvenile public defender Jennifer Egan told In Justice Today. “Baltimore police, media, and public officials have started using the same fear-mongering terms — roving gangs, violent youth, brazen attacks — the exact same language that [John] Dilulio, criminologists, and police used in the 1990s to vilify black youth in urban centers.”

While this year has seen an uptick in juvenile arrests for assault, carjacking, and robbery, BPD hasn’t said definitively that more crime is actually happening. What is clear, though, is that juvenile crime has been trending downward for years. Between 2014 and 2016, juvenile complaints fell 38 percent. Juvenile homicide rates have also plummeted for decades. Despite a recent spike in murders and shootings in Baltimore, kids haven’t been committing them, Egan says. Yet the rhetoric surrounding the new police unit and recent assaults does not reflect this reality, according to the public defender. Instead, it is re-upping racialized narratives that previously painted kids as monsters and led to their mass incarceration.

“Kids are not mini adults,” Egan said. “All kids are kids. Another way to describe ‘brazen daylight attacks’ is ‘immature, impulsive, and unsophisticated.’” And the Supreme Court agrees with her. More than once, it has ruled that kids are reckless, irrational, susceptible to peer pressure, and impulsive — precisely because their brains aren’t fully developed. As such, they cannot be treated like adults.

The latest narratives also ignore the fact that youth are underfunded, under-resourced, and heavily policed already, says 16-year-old activist Chelsea Gilmer of the Baltimore Algebra Project, an organization that fights for education and human rights of local youth. For instance, bus stops have turned into their own “gated communities” due to barricades set up by militarized police officers, according to both Gilmer and Egan. Gilmer says patrol officers park their cars near the bus stops and brandish pepper spray and guns as a form of intimidation. “It’s really crazy to me that there’s systems put in place to target us and put us in institutions to keep us from society. But there’s not a lot of systems put in place to help us,” she said.

Egan and criminal defense lawyer Jason Downs agree that any violence committed by young people in Baltimore is not a symptom of depraved, monstrous youth but a result of systemic neglect. Downs points to the new $35 million juvenile detention facility that received three times more funding than a local job program for the city’s youth. “The idea of targeting youthful offenders by creating a unit full of ‘young looking officers’ is, at best, the equivalent of putting a Band-Aid on gunshot wound to stop the bleeding,” he said. “Until we seriously invest in deterring children from the criminal justice system, our City will not be truly safe.”

Reviving the superpredator myth while ignoring educational neglect, unsafe housing, lead paint, and other forms of societal abuse, does the exact opposite, says Egan. “Right now I’m very worried that people are trying to score political points on the backs of children who they have personally failed.”

This article was published in partnership with The Root.

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