Analysis: Not calling Lipscomb alternately deemed brilliant, befuddling

Trial observers stunned by state's dropping key witness

move may thwart assault on his credibility

November 18, 2009|By Annie Linskey and Julie Bykowicz

A state prosecutor's decision Tuesday to leave a key witness out of the theft trial against Baltimore Mayor Sheila Dixon stunned those watching the case closely but generated no consensus about which side might benefit most from the unexpected move.

Some legal analysts said the decision not to call developer Ronald H. Lipscomb to the stand was a clever end run around the mayor's defense that the gift cards from Lipscomb, her former boyfriend, were tokens given in a romantic pursuit. But others say the omission will leave a gap in the state's case that could cause jurors to question the veracity of all the charges.

State Prosecutor Robert A. Rohrbaugh had pursued Lipscomb for years, charging him with bribery before cutting an immunity deal that allowed him to plead to a lesser charge in exchange for agreeing to take the stand against the mayor. Lipscomb was expected to be the most important witness in the case, and prosecutors wanted him to testify that he gave stacks of gift cards to Dixon for distribution to the needy but which she spent on personal items.

Dixon's defense attorneys built their opening statement around him, indicating they would tear into his credibility.

About 11 a.m. Tuesday, after 20 minutes of testimony by an analyst about tracking financial transactions, Rohrbaugh stood in court and announced he was finished with his case. Judge Dennis M. Sweeney ruled quickly to throw out two of seven charges connected to the gift cards purchased by Lipscomb.

"I do not think there is any way to characterize it except stunning," said David Gray, who teaches criminal law and criminal procedure at the University of Maryland Law School. "They cut a deal with him. That is stunning."

"Witnesses are funny," Gray said, speculating that Lipscomb may have changed his mind and is no longer willing to "fully cooperate" as a witness. "It looks bad to put a hostile witness up for your own case," he said.

University of Baltimore law professor Byron Warnken, who has written extensive teaching materials on criminal law, said he was "perplexed" by the state's decision and believes it is a good sign for the defense.

"It can only mean they don't have out of his testimony what they thought they would get," Warnken said. "I can't imagine the state prosecutor was thinking, 'Our case was so strong we don't need him.' I wouldn't believe the state prosecutor would take that risk."

If Lipscomb takes the stand now, and defense attorneys damage his credibility, he may not be as strong a witness for the next criminal case Dixon faces in March. In that case, Dixon is accused of perjury for failing to report on her city ethics forms the gifts from Lipscomb.

But Warnken said prosecutors should not save Lipscomb for the second trial. "It would seem to me that the prosecution is going to play its strongest card in this case," he said. "They would want to try their better case first, and they would want to use him in the best way possible."

Lispcomb's testimony was billed as explosive. Dixon's lead defense attorney, Arnold M. Weiner, spent much of his opening statement crafting a narrative for jurors to follow: The mayor cast as the hardworking public servant and Lipscomb in the role of a city developer with questionable business practices who wooed Dixon with anonymous gifts.

The story loses some punch when a main character is not delivered, said Steve Levin, a former prosecutor who has tried public corruption cases, adding that there was an upside to the prosecutor's decision. "Think about the benefits; the state forced the defense to waste an opening statement on a defense that never appeared," Levin said.

Warren A. Brown, a seasoned local criminal defense attorney, says the move clearly helps the state. The prosecutors, he said are in "a much better position" without Lipscomb. "They have robbed from the defense an integral part of their defense strategy," he said.

Brown said defense attorneys would be unwise to call Lipscomb themselves because "they have no idea what he is going to say," and because they are not allowed to ask him the sort of questions that contain the answer they are looking for. Dixon attorney Dale P. Kelberman refused to say whether the defense would call Lipscomb.

Brown said Dixon's attorneys are "scurrying around trying to figure out how to show the jury that she had an innocent state of mind" when she used cards on herself that another developer in the case said were purchased for the children of Baltimore.

Brown said the attorneys are probably seriously considering putting Dixon on the stand. After all, Brown said, she is the only person left who can tell jurors why she used the cards - something the defense had relied on Lipscomb to convey in their cross-examination.

"Now they [defense attorneys] don't have old Ron to kick around on the stand," he said.

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