By Brandon Soderberg and Baynard Woods

December 1, 2017

Lawyers for Keith Davis Jr., a man shot by Baltimore Police in 2015 and subsequently charged with and eventually convicted of the murder of Kevin Jones near Pimlico Race Track, have filed a motion for a new trial challenging the reliability of the prosecution’s star witness, David Gutierrez, and how the State’s Attorney presented, as the motion says, “a member of the notorious Texas Syndicate prison gang,” to the jury.

Among the claims are the the prosecution mischaracterized Gutierrez’s criminal background by presenting him as a “nonviolent, sympathetic” drug dealer (rather than someone who helped set someone on fire, among other violent crimes listed), that the state essentially hindered discovery, and that Gutierrez perjured himself, and that the state knew he did it.

The state’s case relied almost entirely on Gutierrez’s testimony.

“Once the verdict was rendered, we were not given adequate time to vet Gutierrez to know who he was, defense was not given time to do that, so afterwards, after this unfortunate and unjust verdict was rendered we were able to do research and we found that David Gutierrez is a federal inmate serving 25 years for RICO acts as well as murders,” Kelly Davis, Keith Davis’ wife told The Real News in front Clarence M. Mitchell Jr. Courthouse last month wearing a “FREE KEITH DAVIS” t-shirt. “He was an enforcer for the Mexican cartel and a part of the Texas Syndicate Gang—it is a very dangerous, cruel gang that is within prisons in California and Texas.”

Davis met Gutierrez at Jessup Correctional Institute buying jailhouse wine from Gutierrez’s cellmate, Ihtisham Butt, the state claimed. Butt in a signed affidavit, denied he sold wine or even saw Davis.

“The state presented this confidential informant but misrepresented the facts surrounding him as far as his incarceration, the crimes he was involved in,” Kelly Davis said. “And also the fact that him and Keith never were together or had ever had a conversation or any interaction whatsoever.”

Davis’ case which found him going to court twice for Jones’ murder (the first time it was a hung jury, the second time he was convicted of second-degree murder) began the morning of June 7, 2015.

According to the police officers who shot him, Davis used a gun to hold up a hack, or unlicensed cab. When the hack pulled up beside a police car and the gunman fled and the pursuing officers, Lane Eskins, Alfredo Santiago, and Catherine Filippou, chased Keith Davis Jr. into a dark garage. They started firing.

In total, 43 shots had been fired and Davis was struck three times. Police charged Davis with 16 crimes, including firing his weapon. The problem was, almost none of it held up. Davis claimed he had been walking down the street on the phone with his then-girlfriend, now-wife Kelly, when he saw officers running. This was only two months after the in-custody death of Freddie Gray and Davis says when he saw the police he was scared and ran.

In court, Charles Holden, the hack driver, was asked to identify Davis.

“If I go closer I can tell you that’s him or not,” Holden said.

When he got up close to Davis the prosecutor asked him if he recognized the man who held him up.

“To my recollection that don’t look like him much to me,” Holden said.

Davis’ gun had not been fired during the exchange, but it did have Davis’ palm print on it. His lawyer argued that the gun had been planted and his prints wiped on it. The jury found Davis guilty of possessing the handgun on March 3, 2016.

After Davis was found guilty of possessing the gun, he was charged with Jones’ murder. According to charging documents, investigators “determined that cartridge cases recovered from the scene of the murder” of Jones, “were fired from the gun recovered by the defendant.”

Davis’ first trial for the murder ended in a hung jury, but he was swiftly convicted in October. The state disingenuously alleged the circumstances of the robbery, of which Davis was cleared, as evidence in the murder and Davis’ acquittal for the robbery was not allowed to be mentioned in court.

“Keith was still referred to as ‘a robber.’ In the prosecutor’s closing arguments, she actually said, ‘He robbed a hack,’” Kelly Davis said. “He was acquitted of all these charges and even though the prosecutor was able to allude to those charges he had already stood trial for, as well as this gun, he’s already been found not to have possessed this gun…she was able to allude to these allegations as if he had never been tried.”

From the motion for new trial.

The difference in the second trial was a new witness, David Gutierrez, a federal prisoner being housed at Jessup. Gutierrez testified that Davis told him he shot Jones over a “neighborhood beef” and that he thought he would get away with it because a do-rag made witnesses think he had long hair.

In his initial interview with police, Holden, who was sitting in a car beside Davis, said “he had braids or long hair. He had good size hair. I think it was platted.” And Davis wasn’t accused of getting into the cab for several hours after the murder.

Gutierrez says he got this information from Davis while both were buying jailhouse wine.

“They were never housed together like this gentlemen testified on the stand,” Kelly Davis said echoing the motion.

The motion goes on to argue that Gutierrez has been “parading around the country testifying in homicide cases in order to gain leniency…and Division of Correction records classify him as a confidential informant.”

A sworn affidavit from Ihtisham Butt, Gutierrez’s former cellmate that is included in the motion challenges Gutierrez’s testimony. “He was shown two photographs of Mr. Davis, and that he has ‘never met encountered or engaged in any transaction with Keith Davis Jr.,” nor to his knowledge had Mr. Gutierrez,” the affidavit reads. It also notes that Butt is a practicing Muslim and thus, forbidden from consuming or selling alcohol (records show that Butt is currently incarcerated for sexually abusing a 14 year-old girl).

A second affidavit including in the motion comes from a member of the hung jury from the first trial, Ivan T. Henson, who swears that the only juror who voted against acquitting Davis did so in direct and knowing opposition to jury instructions issued by Judge Alfred Nance (who The Maryland Commission on Judicial Disabilities recently said should be expelled for “sanctionable conduct,” related to comments made toward public defender Deborah Levi).

“Myself and other jurors believed that even if Mr. Davis handled the handgun in question, it did not mean he was associated with the murder at the Pimlico Race Track,” Henson’s affidavit reads. “The sole juror holding out was of the impression that Mr. Davis’ counsel had to prove his innocence.”

“I believe that Keith did something unprecedented in the city of Baltimore where most cases are pleaded out. He took the narrative of Baltimore City Police and State’s Attorney’s office to court and ultimately in that first trial he was acquitted and won,” Davis said. “In Keith’s case, the facts of the case never changed. He never robbed a hack, he never had a gun, and still she’s come after him because he stood, we stood up. I think that the vendetta she has is personal because we feels as though we came after her.”

Davis notes that when Davis Jr. was found guilty the State’s Attorney tweeted, “Victory.”

“Notice she didn’t tweet ‘Justice,” Davis points out. “That’s all we’ve ever been looking for.”

Last night, Davis, members of Baltimore Bloc, and 20 or so others rallied near Gaslight Square in Pigtown where Marilyn Mosby was holding a fundraiser (among the hosts for the event, Senator Nathaniel Oaks, federally charged with bribery, fraud, and obstruction of justice, Kelly Davis pointed out).

The group posted a large “Free Keith Davis Jr.” banner across used a megaphone to outline many of the issues in the motion to those arriving for the fundraiser.

This morning, Judge Lynn Stewart-Mays considers the motion and Davis goes to court for sentencing.

“I don’t feel like [Davis] got a fair shake from the judge but in the judge’s defense, I also don’t think she knew the things that were at-play with the State’s Attorney’s office. I don’t believe they were forthcoming with her. They lied to her just like they lied to a jury,” Kelly Davis said. “I know for a fact that enough damage was done law-wise in that court room that Keith has secured a laundry list of appeals.”

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