Analysis: Not calling Lipscomb may have been trial's turning point

Resting without key witness simplified case

  • Mayor Sheila Dixon heads to her car after being convicted on a single charge of taking gift cards intended for the city's poor.
Mayor Sheila Dixon heads to her car after being convicted on… (Baltimore Sun photo by Jed…)
December 02, 2009|By Jean Marbella | jean.marbella@baltsun.com

Did it happen as early as jury selection, or as late as the closing arguments? Or was it at some point in between when the trial of Mayor Sheila Dixon started heading down a path that led jurors to find her guilty Tuesday on one of five criminal counts?

In a trial that took surprising turns over its 14-day course, no one incident alone propelled the action; rather it was a pileup of factors that eventually resulted in her conviction on a charge of misappropriation.

Going into trial, conventional wisdom seemed to favor Dixon - her seven-member legal team would seem to outgun State Prosecutor Robert A. Rohrbaugh and his three lawyers in sheer numbers alone, if not reputation.

Each side would go on to give opening statements that reflected its style - Rohrbaugh more dispassionate, lead Dixon attorney Arnold M. Weiner full of emotional flourishes. But even before that, the trial had started taking shape.

Taking a page normally found in the defense lawyer's playbook, prosecutors used a jury expert to help them pick the panel.

The first surprise of the case came when the defense ran through its four peremptory strikes early in the selection process, before the final half of the 12 jurors were seated. Might Dixon have been acquitted on all counts with a jury that her lawyers had more say-so over picking? At least one legal observer believes Tuesday's verdict, coming after seven occasionally contentious days in the jury room, indicates otherwise.

"Based on their deliberations and the results, I think it would be hard to make the case that the jury was biased against the mayor," said David Gray, a law professor at the University of Maryland. "They worked very hard and took their job seriously."

In retrospect, the game-changer might have happened on Nov. 17, when the state rested without presenting its star witness, Ronald H. Lipscomb, the developer and former Dixon paramour whose plea deal in a separate City Hall corruption case required that he cooperate with the prosecutors.

Initially, it seemed that Rohrbaugh had lost a huge part of his case - two of the original seven charges were dropped, involving gift cards that he had spent a good deal of time tracing from purchase to cashing in.

But as it turned out, losing those charges had the effect of distilling a complicated case into a clearer essence. Rather than keep track of testimony and witnesses related to three separate batches of gift cards, jurors now had just two story lines to follow.

And in hindsight, Lipscomb could have been a problem witness. Would his testimony have been shaped with an eye to Dixon's second trial, scheduled for March, in which he also figures?

In that case, Dixon is charged with perjury for failing to list on her city ethics forms the gifts that Lipscomb gave her. In the just-concluded trial, the state was contending that the cards were for charity while the defense was arguing that, at least in Lipscomb's case, they were personal gifts, so it would have been interesting to see how the developer characterized them.

Lipscomb was going to be at the center of Dixon's defense, and Weiner built much of his opening statement around the developer and how the prosecutor's case was merely a matter of confusion over anonymously delivered gift cards. But with Lipscomb out, Weiner's central argument suddenly vanished.

Once jurors retired to their closed-door deliberations, mixed messages emerged in their occasional notes - there were tensions that prompted jurors to request early dismissals, then statements referring to progress and, finally, a request that was granted to review the testimony of three witnesses.

"I went in with a clean slate because I hadn't followed the story," juror Elaine Pollack said in an interview. But after hearing the evidence, she said, she became convinced that Dixon either committed theft or misappropriation.

"I felt I never thought her innocent," she said.

Pollack was the one who requested the three witnesses' testimony as a way of clarifying matters for jurors who had different interpretations of what had been said.

With a somewhat confusing case, the closing arguments became even more important - one last chance for each side to clarify the issues before jurors went into secret deliberations.

Prosecutor Shelly Glenn gave a crisp summation of how cards intended for the needy ended up in Dixon's hands, while Weiner focused on what he called the prosecution's relentless and invasive probe of Dixon's affairs that netted a case he characterized as trivial.

But then Rohrbaugh got a rebuttal, and he turned the focus of a courtroom that had erupted in cheers from Dixon supporters back to those who would have to render a legal, not political, verdict.

After nearly four years of a state prosecutor's investigation, the guilty verdict was viewed as a victory for Rohrbaugh.

"I think it's a vindication," said Andrew Levy, a Baltimore lawyer who attended some of the trial.

Some might argue that Rohrbaugh shouldn't have prosecuted Dixon for the relatively small dollar amount of the gift cards, but "it was his call to make," Levy said.

"Having convinced the jury to convict a sitting mayor for relatively small amounts, maybe under somewhat sordid circumstances," he said, "I think you have to give the prosecutor his due."

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