Bearded, big, and in a prison jumpsuit on the stand, Itisham Butt testifies at a Dec. 1 motions hearing in Baltimore’s Circuit Court. Keith Davis Jr. is demanding a new trial, and Butt hopes, in the process, that he can “clear [his] name.”
“I need to clear my name,” he says. “It’s important to me to clear my name.”
Butt’s Muslim brothers and all the boys on his tier at Jessup Correctional Institution were talking about him. Some lawyer he hadn’t met before came and told him, too: That during Davis’ October trial, David Gutierrez, Butt’s former cellmate and the State’s star witness, told the court that Davis bought alcohol from Butt and that during one of these illegal booze exchanges, Davis told Gutierrez he murdered Kevin Jones, another Baltimore man.
“I can’t take the smell of alcohol,” Butt, a practicing Sunni Muslim who is therefore forbidden to consume or sell alcohol, tells Judge Lynn Stewart Mays, State Prosecutor Andrea Mason, Davis’ attorney Latoya Francis-Williams, Davis, and a packed courtroom. “Never. I don’t know anything about alcohol.”
Davis looks toward Butt up on the stand, then to his left at his lawyer and her notes, and then back to Butt again. He does this all afternoon. This case isn’t just about whether Davis killed Kevin Jones anymore, it didn’t even begin that way, it began in June of 2015 as a police shooting. Now, the Keith Davis Jr. trial is a high-profile activist cause—part of a saga that includes alleged misconduct in the State’s Attorney’s Office, a jailhouse snitch, and beef between lawyers.
“If they found some people saying I’m making wine, that’s not good, on my stuff, and in front of my God,” says Butt, who teaches Islam while he’s inside Jessup. “Because I’m preaching to others to change their lives.”
Butt knew Gutierrez as “Da’ud,” not David, though he says Gutierrez “didn’t have that much knowledge of Islam,” but Butt isn’t there to judge, just to instruct. Butt is serving 30 years he says, because he was “found guilty,” of “child abuse, sexual assault, and false imprisonment,” among other charges. A 2012 SAO press release says Butt sexually assaulted a 14-year-old girl.
Mason points out that nowhere in the murder trial where Gutierrez testified did Butt’s name come up; it’s something of a “gotcha” save for the fact that prison talk is real if you’re doing 30 years and your name is all you got and you’re teaching Islam and you’re a locked-up sex offender ostensibly making a change—even murmurs matter a great deal.
“When you say certain stuff [in prison] they know who you’re talking about,” Butt says. There was “rumor everywhere” in Jessup, he says. Plus, “Mr. Jeremy,” came to visit him. Mr. Jeremy is Jeremy Eldridge, a criminal defense attorney and former State prosecutor who Butt says came to Jessup and told Butt what Gutierrez said about him in court. He’d never met Eldridge before, Butt says. He starts to stammer and Judge Mays interjects.
“Stop shaking your head,” Judge Mays says to Francis-Williams.
After a bench conference, Judge Mays announces to the court that there cannot even be the “appearance of either attorney coaching,” and that coaching is “not allowed, inappropriate, unethical.”
Davis’ hearing for a motion for a new trial, which began on Dec. 1 and continued into Dec. 4, was full of moments like this, cinematic courtroom drama. This whole hearing for a new trial hinges on an informant with a dark, drug-cartel-tied past. Gutierrez’s criminal record wasn’t fully revealed in the last trial, Francis-Williams argues. He was not only a drug dealer tied to a Texas drug cartel, but a “hitman,” she says, who, among other things, helped dispose of a dead body by lighting it on fire.
A cynic might say that this hearing hinges on whether to believe the word of a cartel enforcer who helped set a dead body on fire or the word of a convicted sex offender.
According to the police officers who shot Keith Davis Jr. early in the morning on June 7, 2015, he had used a gun to hold up a hack. When the hack pulled up beside a police car, the gunman fled and the pursuing officers, Lane Eskins, Alfredo Santiago, and Catherine Filippou, chased Davis into a dark garage. They started firing.
In total, 44 shots were 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. Davis says when he saw the police he was scared and ran.
In court in 2016 for the robbery charges, Charles Holden, the hack driver, was asked to identify Davis and could not.
“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 June 2015 shooting by police, but it did have Davis’ palm print on it. His lawyer argued that the gun had been planted and his prints wiped on it. On March 3, 2016, Davis was acquitted on the charges that led to the shooting (robbing a hack cab driver, assaulting police officers, among them) except for possessing a gun. That then became the foundation for Davis being 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 told the Real News last month. “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.”
The second trial also had a new witness, 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, explaining both motive and why the hack couldn’t identify him in court in 2016.
Additionally, Frances-Williams argued, Gutierrez’s involvement in a past RICO case was misrepresented to the jury and judge because Gutierrez was circumspect with admitting the full extent of his involvement and charges tied to the RICO case.
Later on, at Davis’ hearing for a new trial, Mays slows the proceedings down amid a debate about what Gutierrez should have disclosed and asks the State what RICO even means.
“I’m a fan of old movies,” Mays says. “When I hear ‘RICO,’ I think Chicago mobsters and G-Men.” This is the first of two golden age of cinema references during the hearing.
Mason doesn’t seem to know what it stands for and Francis-Williams doesn’t answer. “Racketeer Influenced and Corrupt Organizations,” Mays answers after looking it up.
Mason wonders aloud why any of this matters. Nobody here claims Gutierrez is a good guy, he’s here because he knows something about a crime and he gets “time off his sentence” for testifying, simple as that.
Francis-Williams characterizes Gutierrez as essentially a jailhouse snitch who has been “parading around the country testifying in homicide cases in order to gain leniency for his gruesome crimes.”
Butt meanwhile, well, he gets nothing and plenty of people here buy his “clear my name” stance—except for Mays, who later in the day blurts out an angry aside that mentions Butts’ “child abuse” charges with disdain and mocks Butt’s “clear my name” shtick. It is a bad sign for Davis’ defense.
Butt also claims that until recently, when Davis came up to him in Jessup to discuss Gutierrez talking about him, he’d never even seen “Mr. Keith.” All three certainly weren’t drinking in his cell and shooting the shit earlier this year. Butt’s claims are in part supported by the second witness at the hearing, Chief Joseph Harris, head of security at Jessup Correctional Institute, who confirms documents showing when Davis was moved to Butt’s building.
Harris, a bemused bureaucrat who explains his role at Jessup as “supervisor to the supervisors of the staff” confirms that there was never a point where Davis would’ve been on the same tier as Butt and Gutierrez when they were cellmates, which makes the three meeting, especially in a cell like Gutierrez explained, nearly impossible. He did admit that “it’s possible” someone could move undetected, though at great risk.
The State’s witness, David Greene, chief of case management for the Department of Correctional Services, confirms that Gutierrez was transferred from Jessup to somewhere else because of his testimony in the October Davis trial. Greene also confirms that it was a “protective order”—though one Gutierrez requested—and says it invokes the fact that “BGF has a kill-on-sight order,” to those who testify against others in cases.
If this was supposed to link Davis to BGF, it falls flat.
Mays, who seems exasperated by the nearly day-long hearing, quotes the 1942 Bette Davis vehicle “Now, Voyager” (“Oh, Jerry, don’t let’s ask for the moon, We have the stars”) to Frances-Williams, as she argues out a new supplement to the motion: something or other about the DNA expert from the second trial.
As in both murder trials for Davis, the State’s argument mostly focuses on circumstantial evidence: that it was possible Davis could have gone to another inmate’s cell despite not being permitted (SAO’s Andrea Mason invoked recent news that a guard at Jessup is also a Crip) and that Davis also could have spoken to Gutierrez “during chow,” even though Gutierrez specifically testified that the conversation happened in his cell.
Very little of this, it seems, ultimately matters. It’s all about Gutierrez and those RICO charges and the State’s apparent obfuscation, which Judge Mays refers to as a “sanitized” version of its star witness’ criminal history. The jury did not get a full sense of Gutierrez and because of that granting a new trial makes sense.
Davis will return to court in April to be tried for the murder of Kevin Jones—for the third time.
“We respect the judge’s decision,” Melba Saunders, director of communications for the SAO, said in a statement, “and look forward to presenting the facts of this case again in the pursuit of justice for the family of Mr. Jones.”
“It doesn’t open the door to let him out, but I feel he’s been at least partially vindicated,” Kelly Davis says right after the new trial announcement. “No matter what you believe, no matter what you thought, he did not do this. He should not have been convicted behind the dirty antics of the State’s Attorney’s Office. This is just one step closer to getting him home where he belongs.”
Later in the day, at a press conference in front of the SAO’s office, Davis describes her husband’s reaction to the news.
“He dropped his body down, he came back up, punched his fists,” Davis says. “And his lawyers patted him on his back.”
Additional reporting by Baynard Woods.