"The courts almost never do that, because if they did, everyone would be running off to the appellate court in every case and we would never get anything done," said University of Baltimore law professor Byron Warnken. He said the maneuver would put a "tremendous burden" on the mayor's counsel to convince the appeals court that the case should be taken.
The two perjury charges stem from an accusation that Dixon failed to report gifts on city ethics forms - cash, travel and clothes - from former boyfriend Ronald H. Lipscomb, whom Dixon dated in 2003 and 2004 and who received millions of dollars worth of city tax credits for his development projects.
In order to prove the charges, prosecutors must show that Dixon knew that Lipscomb was doing business with the city.
In May, Sweeney dismissed similar charges against Dixon, agreeing that prosecutors improperly used privileged material when they initially asked a grand jury to indict her in January. The prosecutors had in that instance used votes she cast on tax credits to show she was aware of Lipscomb's city work.
Those votes are protected acts, and cannot be used against her in criminal cases, Sweeney found.
Prosecutors went back to a grand jury and in July secured new indictments on perjury charges using different evidence - showing that she was aware of Lipscomb's work with the city via meetings and newspaper articles about the projects. Evidence includes a color photograph of then-City Council President Dixon standing next to construction equipment and men in hard hats at the groundbreaking of Lipscomb's Frankford Estates project in East Baltimore. Lipscomb can be seen in the background.
The prosecutors also showed a Baltimore Sun article during an earlier court hearing in which Dixon was quoted saying she "twisted some arms" to ensure the East Baltimore project included the 170 houses that the neighborhood leaders wanted.
The mayor's attorneys had contended that photo from the ceremony and evidence from the meetings were protected because they were settings in which legislation was discussed.
They also point to grand jury testimony in which Lipscomb said that he never spoke with Dixon about legislation or his city development projects outside official meetings.
In rejecting their argument, Sweeney wrote that even if there were a violation of Dixon's rights to protected speech, "it can hardly be seen as pervasive or dominant, and it would not be appropriate for the court to invade the grand jury's jurisdiction and dismiss an otherwise valid indictment."
"The better course would be to correct any error by not admitting the offending evidence at trial," Sweeney wrote.
Rohrbaugh said he was not concerned that evidence could be tossed out. "At this point, we are not sure what evidence we will be using," he said.
Separately, Sweeney also rejected the defense arguments that the prosecutors used an overly vague interpretation of the city's ethics code to support the perjury charge.
The trial on theft charges is set for Nov. 9. No date has been set for the perjury case.
Dixon's legal situation
Theft trial
* Set for Nov. 9
* Two counts of theft of more than $500
* One count of theft of less than $500
* Three counts of embezzlement
* One count of misconduct in office
Perjury trial
* No date set
* Two counts of perjury
