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Confusion and Half-Truths Abound: My Hypothesis as to Why The Public is (Temporarily) Paying for Marilyn Mosby’s Expert Witnesses

July 6, 2022

Morgan T. Dilks

This article is pure conjecture and speculation on the part of the author, and the author’s opinion does not necessarily represent the opinion of RKW, LLC or its partners.

If you live in the Baltimore Metro Area, you’d have to be living under a rock to be unaware of the fact that Baltimore City State’s Attorney, Marilyn J. Mosby, has been indicted on perjury charges and faces a jury trial in September of this year. Various news bytes have trickled out over the ensuing months since the indictment, but none seems to have been so inflammatory, and so misunderstood, as the news that emerged on July 5, 2022.

Around mid-day, news broke across multiple outlets stating, in so many words, that the taxpayers, not Mrs. Mosby, would be funding experts necessary for Mrs. Mosby’s defense.  It may not be common knowledge, but expert witnesses retained for trial not only cost money, but they cost a lot of it!

Upon release of this news, I was inundated with text messages from numerous friends, family members, and colleagues interested to understand why a judge would grant one of the highest paid public servants in Baltimore the windfall of publicly funded expert witnesses for her defense.  

Having read a few headlines and clicked through a few articles, while seeking an explanation myself, I turned to the Honorable Lydia Kay Griggsby’s Order, which provided the clarity I sought.

Mrs. Mosby filed a request for funding for expert witnesses under the Criminal Justice Act (“CJA”).  An objective of the CJA is to attain the goal of equal justice under the law for all people.  The CJA is intended to ensure that those accused of a crime will not be deprived of the right to counsel, or any element of representation necessary to an effective defense, due to lack of financial resources.  

In order for a defendant to qualify to have expert witnesses funded under the CJA, there are two criteria that must be met.  First, expert testimony must be necessary for the defense.  Second, the defendant must be unable to pay for the expert witness or witnesses.

Judge Griggsby was satisfied based on Mrs. Mosby’s request that the expert services requested are necessary for Mrs. Mosby’s defense.  But what about the “financial” criterion? It sure seems like a person who is among the top paid public servants in Baltimore should be funding her own defense, doesn’t it? Judge Griggsby explains this as well. In her Order, Judge Griggsby identifies that “The Guide to Judiciary Policy provides that ‘any doubts as to a person’s eligibility should be resolved in the person’s favor; erroneous determinations of eligibility may be corrected at a later time.’”  

In plain English, if Mrs. Mosby is ultimately determined to not qualify financially, the Court can always order her to pay the money back.  This is a situation where refusing to grant Mrs. Mosby’s request could result in Mrs. Mosby being denied the access to justice that all of us are entitled to.  The Court can order Mrs. Mosby to return the money at a later date if she doesn’t qualify financially.  Essentially, there’s no harm in granting Mrs. Mosby’s request now; however, there could be harm in denying her request.

There’s another reason to grant this request if you look a few steps ahead.  If Mrs. Mosby is denied her request for funding, and as a result of that denial Mrs. Mosby doesn’t retain the experts she needs for her defense, then the seeds of an appeal will have been planted.  Should the United States prevail at trial, Mrs. Mosby would be in position to appeal on the grounds that she was denied an element of representation necessary to an effective defense due to lack of financial resources.

The criminal justice system works at its best when both sides are able to present the strongest cases that are available to them under the law.  The headlines I have seen don’t tell the story.  It is either that Judge Griggsby’s ruling on this issue is either completely misunderstood by the media at large, or it is simply that inflammatory news drives more clicks.  By granting Mrs. Mosby’s request, Judge Griggsby has cleared the path for both sides to present the strongest cases available to them, while nipping a potential issue for appeal in the bud.

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