 Keith Davis and his wife, Kelly (Photo: Deborah Levi)
Jones was shot 11 times. A Pimlico employee saw the shooting, but was unable to identify the gunman.
About five hours later, shortly before 10 a.m., police investigating a report that someone attempted to rob an unlicensed cab driver confronted 23-year-old Keith Davis Jr. in a garage about a mile and a half from the race course. Police fired 32 times, striking Davis three times—in the face, arm and back.
Davis was badly wounded, but he survived.
The shooting came several weeks after the death of Freddie Gray, who had died in April 2015 while being transported to a police station in an unsecured van. The death prompted massive demonstrations and riots over police treatment of civilians and arrestees.
On June 15, 2015, Davis was charged with 17 counts, including the attempted robbery of the driver of an unlicensed taxi, assaulting police, and illegal possession of a firearm.
On February 25, 2016, following a week-long trial, Davis was acquitted of all the counts except illegal possession of a weapon. The evidence against Davis was almost non-existent. The unlicensed cab driver did not identify him as the robber.
A Baltimore police latent fingerprint examiner, Elizabeth Patti, said she compared a partial palm print and a partial fingerprint found on the handle of a .22-caliber semi-automatic pistol found on top of a refrigerator in the garage where Davis was shot. She said she concluded that the prints were made by Davis.
Baltimore police firearms examiner James Wagster Jr. testified that 32 shell casings were found at the scene, and all, he concluded, were fired by the police. Wagster testified that there was no evidence that the .22-caliber pistol had been fired.
On March 3, 2016, a week later, Davis was arrested for the murder of Jones at Pimlico. He was also charged with weapons violations. On March 30, a grand jury indicted Davis on one count of first-degree murder and one count of using a firearm in the commission of a crime of violence.
The murder prosecution would stretch over the next seven years. It spawned demonstrations as well as public outcry about police brutality and accusations that Davis had been falsely accused of the murder because police had shot him after mistakenly believing he had been the man who tried to rob the unlicensed taxi driver.
In April 2016, Davis was sentenced to a mandatory term of five years in prison for the firearm conviction. The jury had inexplicably convicted him of possessing a firearm, but acquitted him of carrying or transporting a firearm.
On May 8, 2017, Davis went to trial in Baltimore City Circuit Court on the murder charge. The defense contended that police had planted the gun in the garage where Davis was shot and falsely accused him of the robbery because they had shot him. When Davis was acquitted of nearly all of the charges in that case, the defense claimed, the police falsely accused him of possessing the gun that shot Jones.
FBI agent Richard Fennern, an expert in cell phone analysis, said that the cell phone confiscated from Davis after he was shot showed the phone was in a geographical area near the race course when a call was made at 4:57 a.m.—minutes after Jones was shot.
The defense contended that evidence was inconsequential since Davis had been visiting an acquaintance in that neighborhood at the time of the shooting.
Wagster, who had testified at Davis’s attempted robbery trial about the shell casings found at the garage, testified that he concluded, after a microscopic comparison, that nine shell casings found near where Jones was killed were fired by the .22-caliber pistol recovered when Davis was shot. He said that microscopic markings on the casings were “exactly the same.” He testified, “The nine fired cartridge cases…were fired by this firearm.”
He said he could not give a percentage of confidence in his conclusion. “It’s basically that there was sufficient individual characteristics exist that I could state [the casings] were fired with [the .22-caliber] pistol…And that, basically, the sufficient agreement means that the random patterns were of such random quality and quantity that it’s improbable that any other gun fired it.”
Elizabeth Stasik, the same fingerprint examiner who testified at Davis’s attempted robbery trial when her last name was Patti, again testified that Davis’s palm print and fingerprint were found on the gun. She testified that fingerprints were unique to each person from birth. Asked by the prosecution if that applied to identical twins, Stasik said, “They are unique, too. That makes us a little better than DNA.”
Davis denied killing Jones and denied attempting to rob the unlicensed cab driver. He told the jury that he tried to take cover from police behind a refrigerator in the garage when officers began shooting at him. He said the officers planted the handgun, with no ammunition in it, on top of the refrigerator.
On May 16, 2017, the jury reported that it was unable to reach a unanimous verdict. A mistrial was declared.
Davis’s second trial began on October 17, 2017. The prosecution evidence now included testimony from David Gutierrez, a prison inmate. Just a few weeks prior to this trial, Gutierrez had written the prosecution and claimed that Davis had bragged about killing Jones.
In addition to testifying about Davis’s alleged admission, Gutierrez said that although they were in different sections of the prison, Davis visited him to purchase alcohol from Gutierrez’s cellmate.
On October 17, 2017, the jury convicted Davis of second-degree murder and illegal use of a firearm. Prior to sentencing, Davis’s defense lawyer, Latoya Francis-Williams, filed a motion for a new trial.
The motion said that the prosecution had turned over a “sanitized version” of Gutierrez’s criminal history that did not include Gutierrez’s participation in a Texas gang murder. In addition, at a hearing on the motion, Itisham Butt, who had been Gutierrez’s cellmate, testified that he was a devout Muslim who had never taken a drink of alcohol in his life. He said that he had never met Davis and never sold alcohol in the prison.
Circuit Court Judge Lynn Stewart Mays granted the defense motion and granted Davis a new trial. The judge noted that Gutierrez, when questioned during the trial, admitted that when he pled guilty he said he had engaged in racketeering and drug trafficking. He did not disclose that he had admitted, as part of the plea agreement, that he was involved in a murder.
After ruling, Francis-Williams, in an indication of the heightened tension about the case, criticized State’s Attorney Marilyn Mosby. “The State will rue the day she decided to use Mr. Davis’s case as a political football,” Francis-Williams declared.
Davis went to trial a third time In June 2018. By this time, the case was marked by public demonstrations and marches organized primarily by Davis’s wife, Kelly, who insisted that Davis was innocent and was being framed to protect the police officers who shot him.
Two months earlier, the Baltimore Civilian Review Board had concluded that the four officers who shot Davis used excessive force. The board reported that the city’s crime laboratory determined that the gun recovered from the scene was never fired at the officers. The board said there were “inconsistent testimonies” among the officers as to whether Davis had a gun and found “serious discrepancies” between what the officers said in court and what they reported to internal affairs right after the shooting. The board recommended that two of the officers be fired and two others be suspended for 30 days. One review board member, Mel Currie, said it was “the worst case that the board had reviewed with regard to inconsistencies.”
The officers were never disciplined. They were absolved of any criminal charges, and the police department concluded their actions did not violate any police policies or procedures.
On June 21, 2018, the jury was unable to reach a unanimous verdict. Another mistrial was declared.
Davis went to trial a fourth time in July 2019, defended by public defender Deborah Katz Levi. She countered the prosecution case by pointing to the atmosphere in the city at the time of the shooting. She said the city was a “powder keg” in the aftermath of Freddie Gray’s death—the National Guard had only recently withdrawn from the city’s streets. She said police chased Davis into the garage, and when he tried to hide behind a refrigerator, they opened fire. The gun was found later on top of the refrigerator—placed there, Levi said, by the officers themselves.
“They blew a .40-caliber bullet through his face,” she told the jury in her opening statement. And then, the officers planted the gun when they realized he never had a weapon on him, she said.
On July 26, 2019, the jury convicted Davis of second-degree murder and illegal use of a weapon. He was sentenced to 50 years in prison.
On May 13, 2021, Davis was again granted a new trial. His convictions were vacated based on a ruling by the Maryland Court of Appeals in 2020. That ruling said that a judge must, if an attorney requests, question jurors about certain legal principles relating to impartiality, such as the presumption of innocence and a defendant’s right not to testify without drawing a negative inference from deciding not to testify. Levi had been denied such questions during jury selection for Davis’s fourth trial.
Weeks later, prosecutors charged Davis with attempted murder in a prison fight that had occurred a year earlier. A spokeswoman for Mosby said the charges were filed because Davis had won a new trial and that he was a “public safety threat.”
In March 2022, Levi filed a motion to dismiss the indictment on the basis of vindictive prosecution. The motion accused Mosby of pursuing the case against Davis with “vindictiveness and personal and political animus.”
The motion declared that Mosby “has lashed out at Mr. Davis’s supporters with profanity; and she has lied about her actions. She has also made false and misleading statements about Mr. Davis’s criminal record in public in order to defend her vulgar behavior and she has taunted Mr. Davis’s wife, Kelly C. Davis.”
At one point, Levi said, Mosby had demonstrated her animosity by “flipping off” a Davis supporter—a photo of Mosby with her middle finger raised was inserted in the motion—and then lied about it. (Mosby contended she was showing her thumb, not her middle finger, but later acknowledged it was not her thumb.)
The motion cited an almost blow-by-blow account of exchanges between Davis supporters and Mosby, who made some of her responses during radio interviews, as well as some of Mosby’s prosecutors, who took to social media to defend Mosby and disparage Davis’s wife.
On June 30, 2022, Circuit Court Judge John Nugent found there was a "presumption of vindictiveness" behind the decision to charge Davis with attempted murder for the prison fight. Judge Nugent ordered the prosecution to comply with a defense request for all internal communications regarding the decision to prosecute Davis on the jail fight allegation.
Davis’s fifth trial was scheduled for May 2023. The defense filed a motion to bar the firearms analysis testimony as unreliable. The motion was joined by a friend of court brief filed by the Innocence Project.
On August 12, 2022, Judge Nugent held Mosby in contempt of court, determining she violated an order prohibiting public statements about Davis's case when she went on social media to reply to a comment about the prosecution. Mosby declared, “You really shouldn’t believe everything you read.” The judge imposed a strict gag order, and said that if Mosby did it again, she would face a $1,500 fine.
The motion to dismiss was still pending on January 13, 2023 when newly elected State’s Attorney Ivan Bates announced that the charges were being dismissed. The attempted murder charges based on the alleged prison fight also were dismissed.
“As state’s attorney, I have a duty to ensure justice for all, not just the victim, but also the accused,” Bates said.
Davis was then released.
– Maurice Possley
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