Judge has discretion to accept partial verdict

Analysts say Sweeney will try to avoid affecting deliberations

  • Mayor Dixon leaves the courthouse through the back garage after the jury in her trial seemed to send mixed messages to the judge.
Mayor Dixon leaves the courthouse through the back garage after… (Baltimore Sun photo by Gene…)
December 01, 2009|By Robert Little | Baltimore Sun reporter

A note from the jury on Monday in Mayor Sheila Dixon's criminal trial offered a subtle but tantalizing hint that the case could be headed for a split decision, an outcome that legal analysts say is available, if procedurally perilous.

A note from the forewoman arrived in court about 3:15 p.m. saying jurors could not reach unanimity on all five counts related to charges that Dixon stole gift cards intended for needy families. Whether they had come to a joint decision on any count was not clear.

But lawyers said the prospect of a partial verdict - a decision on some counts and a mistrial on others - is not uncommon, and may be the best available result.

"After somewhere near 40 hours of deliberations, if they're hung on some counts but not on others my guess is the judge will exercise his discretion and take a partial verdict," said Byron L. Warnken, who teaches criminal law at the University of Baltimore. "They've gone long enough."

Thirty minutes after sending its message, the jury sent another note asking to continue discussions into a seventh day, which the judge granted. Warnken and others said Sweeney will do his best not to interfere with the jury, and won't likely derail deliberations as long as jurors want to proceed.

But if a new note arrives declaring the group in agreement on some charges but hopelessly deadlocked on others, Sweeney could accept the partial verdict and:

•Immediately declare a mistrial on the rest - a decision that would allow the undecided charges to be pursued independently in a new trial, or,

•Ask the jury to resume deliberations on the remaining charges.

As soon as today, Sweeney could communicate with the jury to determine which counts have verdicts and which don't. He discussed the prospect Monday, but held back when the jury asked for more time.

The charges against Dixon stem from a multiyear investigation into City Hall corruption. Dixon has said she is innocent of the charges, and that she had a right to spend gift cards she is accused of taking because she believed they had been given to her as a gift. Some cards came from developers who relied on city approval for tax breaks.

Analysts cautioned that communicating with the jury is a sensitive undertaking.

"There's a concern about the judge signaling some reaction, or asking for clarifications in a way that might affect the way jurors feel about the decisions they've made," said University of Maryland law professor David Gray. "Once you open that box, you're pretty much committed to granting a mistrial" on the jury's disputed charges.

The process is even more difficult in the Dixon case, the analysts said. Jurors have already been given a multitiered set of instructions, telling them to consider some charges in pairs and one only if they convict on another.

Prosecutors decided during the trial not to call as a witness a developer who had been a boyfriend of the mayor and was considered a central figure in the case against her, so the judge subsequently threw out two charges and told the jury to ignore some evidence already presented.

Defense attorneys have asked for a mistrial because of the complexities - which Sweeney denied - but new questions or instructions from the judge could compound the issue.

"The jury already has a logistical nightmare, in terms of what they're being instructed to consider," Warnken said. "He has to be careful not to add to that nightmare."

When confronted with a hung jury, judges typically ask the panel to return to deliberations, often after stressing the importance of the role they are playing. Because the Dixon jury has deliberated for six days, Sweeney might accept a non-verdict on some counts more swiftly, Gray and Warnken said.

The more he communicates and gets involved in the deliberation process, however, the greater his chances of affecting jurors and providing fodder for appeal, analysts said. And for that reason, Sweeney won't likely get more involved unless the jury indicates he has to.

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