STATE OF MARYLAND IN THE CIRCUIT COURT FOR KEITH DAVIS, JR. BALTIMORE CITY Case Nos. 116090001, 121159010 MEMORANDUM OPINION AND ORDER Pending before the Court are motions to dismiss for vindictive prosecution filed by Defendant Keith Davis, Jr. in the above-referenced cases. The Baltimore City State's Attorney's Office (‘the State’s Attorney's Office” or “the State”) filed oppositions. The motions have been fully briefed. The parties appeared before the Court for a hearing on June 7, 2022. After the hearing, the Court took the motions under advisement. ‘The motions are now ripe for decision. For the reasons set forth below, the motion to dismiss for vindietive prosecution will be denied in Case No. 116090001. With respect to the motion in Case No. 121159010, the Court finds that Mr. Davis has established a presumption of vindictiveness and is entitled to discovery. Procedural Background ‘The procedural background of these cases is well-documented and extensively set forth in the memoranda submitted by the parties. The Court will not repeat it in detail here. Essentially, Mr. Davis is pending his fifth jury trial for second-degree murder and related offenses for the alleged killing of Kevin Jones in the Pimlico areaof Baltimore City on June 7, 2015 (“the Pimlico murdez”).! The fifth trial results from the Court granting his motion for a new trial on May 13, 2021. Mr. Davis was acquitted of numerous charges stemming from the attempted robbery of an unlicensed taxicab driver on June 7, 2015, (“the armed robbery”), but convicted of illegal possession of a firearm. (Circuit Court for Baltimore City Case No. 115387016) While awaiting his fifth trial on the Pimlico murder charges, the State charged Mr. Davis with attempted first-degree murder and related offenses for an incident that occurred on June 2, 2020, while he was in pretrial incarceration at the Maryland Reception, Diagnostic and Classification Center (“the MRDCC incident”). Mr. Davis has moved to dismiss both cases on the grounds of vindictive prosecution. Factual Background Mr. Davis produced numerous exhibits establishing verifiable facts supporting his claim of vindictive prosecution, ‘The exhibits reveal that the cases against him have garnered wide-spread attention and clearly have led to animosity between his supporters and the State's Attorney's Office. While the State's Attorney's Office has vigorously defended its prosecutorial decisions, the record demonstrates a history of antagonism towards Mr. Davis and his supporters. The incidents in isolation might be construed as benign but taken together as a whole establish a pattern of hostility. The problems appear to have started at a town hall meeting in April 2016, when a supporter of Mr. Davis questioned the State's Attorney on why she did not 1 The Court refers to the murder of Kevin Jones as the “Pimlico murder” solely for ease of reference for purposes of this Memorandum Opinion.prosecute the police officers who allegedly shot Mr. Davis on June 7, 2015. (Keith Davis Jr. Question for Marilyn Mosby, YouTube (April 12, 2016), hetps:/www.youtube.com/watch?v=X_1o0JJUInM); (Def’s Mem. at 18-19). The supporter implied that the State’s Attorney's Office never interviewed the officers. Id. The State's Attorney responded by stating “do you know anything about the Fifth Amendment?” Id. Later that week, Mr. Davis's wife, Kelly Davis, criticized the State’s Attorney at a town meeting. (Questioning Marilyn Mosby about Tyrone West & Keith Davis, Jr, YouTube (April 14, 2016) https:/iwww.voutube.com/watch?v=X_100JJUInM); (Def's Mem. at 19). She specifically raised her husband's case to the State's Attorney and complained about the way in which the State's Attorney's Office handled the case. Id, While the State's Attorney showed notable restraint, she ultimately tuned and walked out of the meeting. Id. On October 18, 2017, jurors found Mr. Davis guilty of second-degree murder after he was tried for the second time for the Pimlico murder. On the same day, an entry was posted on the official twitter account of the State’s Attorney's Office about the case. (Def, Ex. #29.) Rather than a press release detailing the facts of the case and the guilty finding, the post read “Victory. Keith Davis, Jr. was found guilty” along with a photograph of the State's Attorney hugging one of Mr. Jones's family members. Id. Shortly thereafter, Mr. Davis was granted the right to a third trial after it was revealed that discovery material had not been provided to the defense related to a prosecution witness in the second trial.On June 9, 2018, the State's Attorney participated in a debate as part of her 2018 reelection campaign. During the debate, Kelly Davis protested the prosecution of her husband. (Def. Ex. #31.) The State's Attorney responded by stating “violent repeat offenders don't like me” even though Mr. Davis only stood accused of the Pimlico murder at the time. Mr. Davis has no prior convictions for a crime of violence. On May 19, 2021, the State's Attorney was present at an outdoor establishment in the Harbor East area of Baltimore City. A supporter of Mr. Davis wearing a shirt reading “free Keith Davis, Jr.” road near her on a bicycle and yelled “free Keith Davis’. (Def. Ex. ##37-38.) After the bicyclist was past, the State's Attorney raised her middle finger towards the bicyclist. Id. The entire event was captured on video and became the subject of numerous media reports. The State's Attorney's Office initially denied that the State's Attorney had raised her middle finger towards the supporter suggesting that it was her thumb. (Def. Ex. #38.) After enhanced video showed the State's Attorney with her middle finger raised, the State's Attorney's Office admitted to it. Id. Approximately one week later, on May 24, 2021, the State’s Attorney appeared as a guest on a Baltimore radio station. (Def. Ex. #40.) While discussing the case against Mr. Davis, she stated “Keith Davis is a convicted murderer, he's been convicted on three occasions. ...” Id. Mr. Davis had already been granted a new trial on the Pimlico murder charges as of the date of the State’s Attorney’s radio appearance. While it was the prerogative of the State’s Attorney to decide to pursuea fifth trial against him, Mr. Davis had a presumption of innocence based on the conviction having been vacated. The animus between the State's Attorney's Office and Mr. Davis's supporters was further evidenced by text message exchanges between the Deputy State's Attorney and a then journalist. Ina text message dated October 17, 2017, the Deputy State's Attorney summarized the evidence against Mr. Davis. (Def. Ex. #42.) The message then disparaged Kelly Davis and her parenting skills, Id. It even referred to protected information acquired through a prior relationship having absolutely nothing to do with the prosecution of Mr. Davis. Id. As recent as the evening before the hearing on the instant motions, the State’s Attorney appeared before the City Council and was questioned about the prosecution of Mr. Davis. (Def. Mot. Hearing Ex. # 1a, 1b). The State’s Attorney responded by stating that Mr. Davis had been convicted three times. Jd. The statement failed to acknowledge Mr. Davis's position under the law ~ that he is presumed innocent pending trial before this Court. Regarding the MRDCC incident, the State's Attorney's Director of Communications and spokesperson, Zy Richardson, suggested that the State's charges were linked to Mr. Davis being granted a new trial. (Def. Ex. # 34.) Specifically, when asked about the timing of the State's charges, she stated “[w]e were waiting on the decision from the [Court of [S]pecial [A}ppeals before deciding how to proceed.” Id. She further stated that Mr. Davis was a public safety threat and “oncehis sentence was disturbed” the State's Attorney's Office decided to move forward with the new charges. Id. ‘The June 2, 2020, MRDCC incident was investigated by Department of Public Safety & Correctional Services (“DPSCS") investigators. DPSCS investigative notes reveal that on February 26, 2021, “at the express request of the [Chief of the Major Investigations Unit of the State’s Attorney’s Office]” no charges were to be filed at that time against Mr. Davis for the MRDCC incident. (Def. Ex. #35.) The DPSCS investigators were directed to forward the file to the State's Attorney's Office for review and disposition. The notes further reflect that on May 19, 2021, six days after Mr. Davis was granted a new trial, homicide prosecutors met with DPSCS investigators and requested that the investigators proceed with filing criminal charges against Mr. Davis. Id. The prosecutors were the same prosecutors assigned to the Pimlico murder charges. Id. The meeting was held at the request of the homicide prosecutors. Id. Discussion IL _Vindictive Prosecution A. Standard of Review Due to the broad discretion afforded prosecutors, vindictive prosecution is very difficult to establish. It occurs only where the prosecutor's action was brought solely to punish a defendant in response to the defendant's exercise of a legally protected right. United States v. Goodwin, 457 U.S. 368, 380 n.12 (1982). It will “rarely, if ever,” be applied to pretrial decisions because of the discretion given to prosecutors and the factors that a prosecutor must consider in making pretrial decisions. United 6States v. Wilson, 262 F.3d 305, 315 (4th Cir. 2001). The relevant inquiry is whether the prosecutor's actions were designed to punish the defendant for the exercise of a legal right - not whether the prosecutor acted in bad faith or maliciously. See Goodwin, 457 US. at 376 (explaining that the Blackledge Court stated that it did not matter that there was no evidence that the prosecutor sought a felony indictment in bad faith or with malice). The avenues available to a defendant to establish vindictive prosecution are well-established. To prevail on a claim of vindictive prosecution, a defendant must demonstrate either (i) actual vindictiveness on the part of the prosecutor through objective and direct evidence, or (ii) evidence establishing a reasonable likelihood of vindictiveness raising a presumption of prosecutorial vindictiveness, Burton v. Mumford, 219 Ma. App. 673, 706 (2014) (citing United States v. Wilson, 262 F.3d 805, 315 (4th Cir. 2001)). Actual vindictiveness requires evidence that “(1) the prosecutor acted with genuine animus toward the defendant and (2) the defendant would not have been prosecuted but for that animus.” Wilson, 262 F.3d at 314. Direct evidence of vindictiveness is rarely available. See Goodwin, 457 U.S. at 373 (recognizing that improper vindictive motive is difficult to prove). In the alternative, a defendant may establish a presumption of vindictiveness by producing evidence demonstrating a realistic likelihood of vindictiveness, i.e., the prosecutorial action was “more likely than not attributable to the vindictiveness on the part” of the prosecutor. Alabama v. Smith, 490 U.S. 794, 801 (1989). The presumption of vindictiveness results only where “there is a realistic likelihood ofvindictiveness” resulting from the prosecutor's hostility in response to defendant's exercise of protected rights. Goodwin, 457 U.S. at 384, As the United States Court of Appeals for the Fourth Circuit has explained, the Goodwin decision stands for the proposition that a presumption of vindictiveness will only arise ‘when circumstances warrant it for all cases of the type presented.” Wilson, 262 F.3d at 315 B. Analysis The Pimlico Murder There is no direct evidence demonstrating that the State brought the Pimlico murder charges against Mr. Davis solely for his exercise of a legally protected right. See United States v. Johnson, 171 F.3d 139, 140-41 (2nd Cir. 1999) (citing Goodwin, 457 U.S. at 380-81 & nn, 12-13, 384 & n. 19) (statements by prosecutors constituting direct evidence of actual vindictiveness available “only in rare case”). Mr. Davis fails to point to any evidence that the State acted with genuine animus towards him at the time it brought the Pimlico murder charges against him in 2016, or that he would not have been prosecuted “but for” that animus. See United States v. Lucas, 62 F. App'x, 53, 56 (4th Cir. 2003) (a defendant may prove an improper motive with direct evidence). Absent direct evidence of actual vindictiveness, this case must be analyzed on whether Mr, Davis has established a presumption of vindictiveness. 1. Pretrial Decision under Goodwin Mr. Davis attempts to make his vindictive prosecution claim by suggesting that the State's decision to bring the Pimlico murder charges was a post-trial decision made in retaliation for the exercise of his right to a jury trial. This is because post-trial decisions are much more likely to result in a presumption of vindictiveness. See Goodwin, 457 U.S. at 381 (post-trial increase in charges unlikely to be based on new information and more likely to be improperly motivated). He argues that the State’s decision to bring the Pimlico murder charges after resolution of the armed robbery charges was a post-trial decision because the cases are so inextricably intertwined that they constitute the same criminal episode or arise out of the same factual nucleus. See United States v. Robison, 644 F.2d 1270, 1272 (9th Cir. 1981) (‘a more serious or an additional charge arising out of the same nucleus of operative facts as the original charge” after invocation of a right creates presumption of vindictiveness). Mr. Davis uses reasoning from the law interpreting Md. Rule 5-404(b) governing “other crimes” evidence finding it does not apply to evidence of other crimes arising from the same transaction and intrinsic to the charged crime. Odum v. State, 412 ‘Mad. 593, 612 (2010). For purposes of vindictive prosecution, however, the armed robbery case and the Pimlico murder are not significantly intertwined to constitute a single transaction. The Pimlico murder charges can be fully shown and explained without reference to the armed robbery. See Odum, 412 Md, at 611 (defining “intrinsic” to mean in part that “the crime or crimes charged cannot be fully shown or explained without evidence of the other crime.”) The Pimlico murder was separate and apart from the armed robbery involving a wholly separate crime with a separate victim. ‘The fact that the Pimlico murder involved a separate incident required the State's Attorney's Office to undertake a different analysis of the societal interests inprosecuting the case. See State v. Adams, 293 Md. 665, 672 (1982) (explaining that prosecutors should have freedom to assess initial charging decisions). It follows that the State's decision to charge Mr. Davis in the Pimlico murder constituted a pretrial discretionary decision of the State, and a presumption of vindictiveness seldom applies to such decisions. Goodwin, 457 US. at 382. There also is authority that a presumption of vindictiveness would still not arise even if the Court assumed that the armed robbery and the Pimlico murder were predicated on the same criminal conduct. See United States v. Esposito, 968 F.2d 300, 304 (3d Cir. 1992) (holding that subsequent prosecution on separate charges arising out of same criminal conduct following an acquittal does not create presumption of vindictiveness). In Esposito, the defendant was acquitted by a federal jury of racketeering and related offenses, including drug dealing, 968 F.2d at 302. The government subsequently indicted the defendant for distributing cocaine based on the same transactions supporting the racketeering charge. Id. The United States Court of Appeals for the Third Circuit refused to find a presumption of vindictiveness explaining that the charges were not brought to punish the defendant for the exercise of some right. Id, at 304. It reasoned that applying a presumption could result in prosecutors overcharging cases for fear of being vindictive if additional charges were brought at a later time. Id. at 306. 2. No Presumption of Vindictiveness for All Cases of the Type Nor is a presumption of vindictiveness warranted for all cases matching the type presented by Mr. Davis in the Pimlico murder as required by Goodwin. 10Goodwin, 457 U.S. at 381. Applying such a presumption to all cases matching this type would lead to illogical results. Simply because a defendant is acquitted of charges in one case, the State does not act vindictively by pursuing more serious charges related to a separate victim of a separate incident occurring on the same day. Such a presumption would prohibit, for example, the State from prosecuting crime sprees against multiple victims occurring over the course of one day merely because of an acquittal in the first case. The appellate courts have explained repeatedly that the judiciary must not interfere with prosecutorial discretion so as not to usurp the role of the prosecutor in making such decisions. See United States v. Armstrong, 517 U.S. 456, 464 (1996) (prosecutor's exercise of discretion to prosecute violations of law is presumptively lawful); McNeil v. State, 112 Md. App. 434, 463 (1996) (“judiciary is ordinarily reluctant to inquire into the executive's charging decision”). Any inference of retaliation is further negated by the fact that the State did not lose the armed robbery case against Mr. Davis all together. While it is true that the State brought the Pimlico murder charges against Mr. Davis after he was acquitted of the most serious charges in the armed robbery case, he was not completely exonerated in the armed robbery case. He was convicted of illegal possession of a regulated firearm after a disqualifying conviction, in violation of Md. Code Ann., Pub. Safety § 5-133(c). The State alleges that same firearm was used in the Pimlico murder. It is extremely unlikely that the State would have retaliated against Mr. Davis simply because it lost the top counts in the armed robbery case. It is even less likely that it was the sole reason for bringing murder charges against him unas the State had a wholly independent reason ~ it was alleged to be the murder weapon in the Pimlico murder. The State’s strategic decision to move forward with the armed robbery case and then prosecute the Pimlico murder is protected by prosecutorial discretion. See Wilson, 262 F.3d at 315 (prosecutor should be free to exercise discretion to consider societal interests in prosecution) Lack of a Causal Connection The antagonistic acts of the State's Attorney's Office against Mr. Davis and his supporters also occurred well after the initial decision to charge Mr. Davis with the Pimlico murder. Considering all the circumstances, Mr. Davis cannot establish a causal connection between the State's discretionary prosecutorial decision and any animus held against him. The evidence of prosecutorial vindictiveness related to the Pimlico murder charges comes down to the fact that the charges were filed against Mr. Davis soon after his acquittal of the top counts in the armed robbery. The Court of Special Appeals has made clear that a claim based solely on the timing of charges is insufficient to establish vindictive prosecution. Robinson v. State, 209 Md.App. 174, 190 (2012), overruled on other grounds by Dzikowski v. State, 436 Md. 430, 456 (2018). Moreover, vindictive prosecution occurs only if the prosecutor's actions were designed to punish the defendant for the exercise of a legal right. Goodwin, 457 US. at 380 n.12. At oral argument and in his written memorandum, Mr. Davis contended that the State’s Attorney was motivated to prosecute Mr. Davis because of a fear of bringing further prosecutions against police officers after the Freddie Gray case. 2(Def. Mot. at 2-3.) Mr. Davis argued that the Baltimore Police Department engaged in misconduct in his case and that this was the first police-involved shooting to occur after the Freddie Gray case. If true, the State’s Attorney's motivation constitutes a further non-vindietive reason for pursing the prosecution against Mr. Davis. It has nothing to do with the exercise of Mr. Davis's trial rights in the armed robbery case. See also United States v. Hastings, 126 F.3d 310, 314 (4th Cir.1997) (animus cannot be imputed from investigative agency to prosecutor who made decision to prosecute). For all these reasons, the Court finds that Mr. Davis has failed to establish a presumption of vindictiveness based on the Pimlico murder charges. The MRDCC Incident While Mr. Davis fails to establish a presumption of vindictiveness based on the State bringing the Pimlico murder charges against him, the same analysis does not apply to the attempted murder charges pending against him for the MRDCC incident. While no direct evidence of vindictiveness is present, it is evident that the State has been frustrated in its efforts to prove the Pimlico murder case against Mr. Davis ina constitutionally sufficient forum. ‘The unique circumstances of the MRDCC incident demonstrate a presumption of vindictiveness on the part of the State. See Goodwin, 457 U.S. at 384 (presumption of vindictiveness arises where “there is a realistic likelihood of vindictiveness” resulting from the prosecutor's hostility in response to defendant's exercise of protected rights) Mr. Davis is facing a fifth trial on the Pimlico murder charges. In total, he will have been tried six times for crimes alleged to have occurred on June 7, 2015. He 2Bhas twice been granted a new trial and two cases resulted in mistrials from hung juries. The State’s Attorney's decision to prosecute Mr. Davis has been the subject of intense scrutiny from the public. The case has indeed been burdensome on the State providing a strong incentive for its filing of separate charges against Mr. Davis after he was granted the right to a fifth trial. 1, Factors Supporting a Presumption of Vindictiveness a. The State’s Animosity Towards Mr. Davis and his Supporters ‘There are numerous factors present in this case that weigh in favor and “support a realistic likelihood of prosecutorial vindictiveness.” Goodwin, 457 U.S. at 384. First, the State’s Attorney and her staff engaged in conduct establishing personal animosity towards Mr. Davis outside the bounds of legitimate prosecutorial conduct. ‘The Maryland Attorneys’ Rules of Professional Conduct (“MARPC’”) hold prosecutors to the highest standard of ethics. See Maryland Attorneys’ Rules of Professional Conduct (‘MARPC’) 3.8 (Md. Rule 19-303.8) (Special Responsibilities of a Prosecutor). For example, a prosecutor is required to refrain from making extrajudicial comments “that have a substantial likelihood of heightening public condemnation of the accused . . ..” MARPC 3.8) In this case, the State's Attorney Office has continually refused to recognize Mr. Davis's presumption of innocence in public even though he had been granted new trials vacating his prior guilty findings. The State’s Attorney and her staff provoked Mr. Davis's supporters and continuously referred to him as a “repeat violent offender.” (Def. Ex. ## 31, 40.) There have even been public statements made 4disparaging his wife. (Def. Ex. # 42.) It is evident to the Court that the State's Attorney's Office had a personal stake in the outcome of Mr. Davis's prior request for a new trial and an interest in self-vindication in its continued prosecution of him. b. The Timing of the MRDCC Charges Second, while those statements and conduct were in the public domain, the State waited to pursue additional charges against Mr. Davis for almost one year after the MRDCC incident and only after he was granted the right to a fifth trial. The application for statement of charges was signed on May 28, 2021, approximately two weeks after Mr. Davis was granted a new trial. The State’s Attorney's spokesperson, Zy Richardson, expressly admitted that the State was waiting to see whether Mr. Davis would be granted a new trial. Her assertion that the State was concerned over public safety is unsupported by the circumstances of the case. Mr. Davis's bail status has never changed. He has been held without bail since March 5, 2016, and it is unreasonable to believe that he would have been released after being granted the right to a fifth trial. (District Court of Maryland for Baltimore City, Case No. 2B02320152). While timing alone is insufficient to establish vindictive prosecution, it is a fact that is relevant to the vindictive prosecution analysis. See Wilson, 262 F.3d at $18 (recognizing that the timing of an indictment for escape within days of a successful appeal of an unrelated conviction is a relevant fact). ‘The State argued that there were additional factors leading to the delay in bringing charges against Mr. Davis, including the COVID-19 pandemic. Yet, the State was able to file the charges against 45Mr. Davis just fifteen days after he was granted a new trial while the COVID-19 pandemic was ongoing. The State did not offer any evidentiary basis for the delay in bringing charges such as waiting on additional investigation or the results of scientific tests. See Goodwin, 457 U.S. at 381 (at early stage of proceedings prosecutor may uncover additional information shaping the prosecution). All the evidence supporting the MRDCC incident charges against Mr. Davis was available to the State almost immediately after the incident. The State further argued that if Mr. Davis's fourth trial verdict had been upheld, there would have been no reason to pursue the prosecution of the MRDCC incident as he would have been serving a significant period of incarceration. ‘This assertion is questionable as it is difficult to believe that the State would not purse attempted first-degree murder charges against a defendant simply because the defendant was serving a significant period of incarceration. Moreover, Mr. Davis would still have had the right to pursue a direct appeal and post-conviction relief providing incentive for the State to pursue attempted first-degree murder charges should his conviction be vacated later. ¢. Homicide Prosecutors Meeting with DPSCS Investigators Third, a homicide prosecutor assigned to the Pimlico murder case met with officers assigned to the DPSCS Intelligence and Investigation Division in initially requesting that DPSCS investigators hold off with bringing charges against Mr. Davis. (Def. Ex. #35.) Just six days after Mr. Davis was granted a new trial, the homicide prosecutors assigned to the Pimlico murder case returned to meet with 16DPSCS investigators. Id. The meeting was held at the request of the homicide prosecutors who then advised DPSCS investigators to criminally charge Mr. Davis. Id. This procedure was atypical and outside the normal protocols followed when incidents of this type occur in a Maryland corrections facility as DPSCS investigators have criminal and administrative charging authority. Md. Code Ann., Correctional Services § 10-701; Code Md. Regs. 12.03.01 et seq. (Inmate Disciplinary Process). A correctional officer who witnessed the incident issued a sworn notice of inmate rule violation attesting that the incident involved closed fist punches between inmates. (ef. Ex. #36.) There was no explanation provided by the State as to why the prosecutors assigned to the MRDCC incident did not attend the May 19, 2021, meeting and advise DPSCS officials. . An Institutional Bias against Retrying Decided Questions A presumption of vindictiveness most often arises in situations where a defendant successfully obtained a new trial through an appeal due to the institutional bias against retrying decided questions. United States v. Wilson, 262 F.3d 305, 315 (4th Cir, 2001). In Wilson, the United States Court of Appeals for the Fourth Circuit declined to find a presumption of vindictiveness where the defendant was charged with escape mere weeks after having his conviction for firearm possession vacated on appeal. Wilson, 262 F.3d at 320. While the timing of the charges was a factor relevant to vindictive prosecution, the Fourth Circuit primarily relied on the fact that “the institutional bias against the retrial of a decided question” was absent from the case. 7‘This was because the defendant had successfully suppressed evidence through his appeal meaning that he could not be retried for the offense. Wilson, 262 F.3d at 318. ‘The institutional bias against retrial of a decided question lacking in Wilson is unmistakably present here. Not only is Mr. Davis being retried — he is being retried a fifth time. As explained by the Fourth Circuit, this institutional bias “undergirds each of the decisions in which [courts have] deemed a presumption of vindictiveness to be appropriate.” Wilson, 262 F.3d at 318. While some courts have recognized that separate charges based on separate alleged criminal conduct cannot create a presumption of vindictiveness, other courts have held that it is simply one factor in the vindictive prosecution analysis. United States v. Jenkins, 504 F.3d 694 (9th Cir. 2007). In Jenkins, the United States Court of Appeals for the Ninth Circuit affirmed the dismissal of criminal charges for violations of U.S. Immigration laws based on vindictive prosecution. Jenkins, 504 F.3d at 697. The charges were brought against a defendant for conduct unrelated to her trial for importing marijuana and alleged to have been in retaliation for her testifying at trial. Jenkins, 504 F.3d at 697. The Ninth Circuit rejected the notion that a presumption of vindictiveness cannot arise unless the new charges arise out of the “same nucleus of operative fact.” Jenkins, 504 F.3d at 700-01. It reasoned that the government had “an open and shut” case against the defendant before she testified at trial. Jenkins, 504 F.3d at 700. 183. Presumption of Vindictiveness Warranted for all Cases of the Type Unlike the murder charges analyzed above, if one were to lay the State's prosecution of the MRDCC incident overtop of any similar set of facts in other cases, it would result in a presumption of vindictiveness every time. See Wilson, 262 F.3d at 315 (requiring the presumption to apply in all cases of the type). ‘The temporal proximity between the new indictment and the grant of a new trial coupled with the words and actions of the State's Attorney and her staff, including the actions of homicide prosecutors, establish a presumption of vindictiveness. ‘The Supreme Court has made clear that the due process clause protects defendants from a prosecutor retaliating against them for exercising a protected right. See Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“[t]o punish a person because he has done what the law plainly allows him to do is a due process violation of the most basic sort.”). By continuously exercising his trial rights and forcing the State to prove its case against him after a fair and impartial consideration of the evidence by a jury, Mr. Davis has established a presumption of vindictiveness by the State when it charged him in the MRDCC incident. The Court's concern is further heightened by the severity of charges brought against Mr. Davis. At the hearing on June 7, 2022, the State proffered the basis for the attempted first-degree murder charges brought against Mr. Davis. ‘The State conceded that no weapon was found despite the fact that the cell was immediately locked down. When the Court read the application for statement of charges indicating that “while directly facing and in clear view of the surveillance camera, [Mr. Davis] 19reached into the waistband of his pants with his right hand and withdrew an object,” the State explained that the surveillance video only depicted Mr. Davis holding his hand against his side. (District Court of Maryland for Baltimore City, Case No. 3B02437515, Application for Statement of Charges, May 28, 2021.) Additionally, it was unclear from the State's proffer of the medical records whether the injuries to the victim were stab wounds or superficial cuts and scratches. The State proffered no evidence supporting premeditation to support the charge of attempted first-degree murder, The burden, therefore, shifts to the State to overcome the presumption of vindictiveness by producing objective evidence demonstrating non-vindictive reasons for pursing the charges against Mr. Davis for the MRDCC incident. Goodwin, 457 U.S. at 376. An evidentiary hearing will be scheduled by the Court. C. Discovery ‘The standard for obtaining discovery on a vindictive prosecution claim is a “rigorous” one. Wilson, 262 F.3d at 315 (quoting United States v. Armstrong, 517 U.S. 456, 468 (1996). A defendant is required to set forth “objective evidence tending to show the existence” of improper motivation. Wilson, 262 F.3d at 315. This is because of the need to avoid delving into prosecutorial motives. The intrusion is warranted when a defendant “presents facts sufficient to raise a reasonable doubt about the prosecutor's motive.” McNeil v. State, 112 Md.App. 434, 465 (1996). Based on the Court's reasoning above, Mr. Davis has failed to make a showing meeting the “rigorous” standard for discovery on his claim of vindictive prosecution 20for the Pimlico murder charges. However, the Court's finding of a presumption of vindictiveness related to the MRDCC incident entitles him to discovery on that claim. Mr. Davis submitted subpoenas to the State’s Attorney's Office for correspondence related to the decision to charge him. Accordingly, the Court will direct the State to provide all responsive records to the Court for an in camera review. The requests will be limited to the MRDCC incident. A separate order follows. (Ce Dat JUDGE Jo, oSOGE JOHN §. NUGENT MM ces sonar ape L THE ORIGINAL ORE APPEARS DocuMenT 21STATE OF MARYLAND IN THE CIRCUIT COURT FOR KEITH DAVIS, JR. BALTIMORE CITY Case Nos. 116090001, 121159010 ORDER ; ie tnig 94 For the reasons set forth in the foregoing Memorandum, it is this 7“ day of June 2022, hereby ORDERED that Defendant's motion to dismiss for vindictive prosecution in Case No. 116090001 is DENIED; and it is further ORDERED that Defendant's request for discovery in Case No. 116090001 is DENIED; and it is further ORDERED that the burden shall shift to the State to provide non-vindictive reasons for the charges in Case No. 121159010 as the Defendant has established a presumption of vindictiveness; and it is further ORDERED that Defendant's request for discovery in Case No. 121159010 is GRANTED; and it is further ORDERED that within thirty (30) days from entry of this Order the State shall deliver all records responsive to the four categories of requests set forth inDefendant's subpoenas’ limited to Case No. 121159010 and the dates June 20, 2020, to June 8, 2021, for an in camera review; and it is further ORDERED that to the extent that the State claims that any responsive records provided to the Court are privileged it shall include a privilege log identifying the document for which a privilege is asserted by name, date, custodian, source, and the basis for the claim of privilege; and it is further ORDERED that that the Court shall conduct a further hearing on Defendant's pending motion to dismiss for vindictive prosecution in Case No. 121159010. A separate notice will be forwarded to counsel once a date is scheduled. ''The subpoenas are attached as Exhibit #3 to the State's April 29, 2022, motion for protective order.