Prosecutor Ponders Retrial On One Count

Some Lawyers Say Charge That Hung Jury Not Worth Pursuing

December 03, 2009|By Tricia Bishop | Tricia Bishop ,

While Baltimore Mayor Sheila Dixon's defense team mulls over what to do about the single guilty verdict returned against her for misappropriating gift cards, prosecutors are considering whether they can get one more by retrying Count 6, which hung the jury with a 9-3 vote in favor of conviction.

But some area lawyers say it's a risk that State Prosecutor Robert A. Rohrbaugh is unlikely to take.

"I can't imagine why he would bother. He's already got his conviction," said Brian G. Thompson, a former assistant state's attorney turned Baltimore defense attorney. "And he's got another indictment against her for two counts of perjury. It would be piling on, in my mind, and not a good use of prosecutorial or court resources to retry the one count. I think it's a no-brainer, actually."

On Tuesday, jurors convicted Dixon of misdemeanor embezzlement for spending $530 worth of gift cards meant for the poor and acquitted her of three similar charges. Two other charges had previously been tossed out. But another charge - known as Count 6 - ended in a mistrial, giving prosecutors the option of trying it again.

Rohrbaugh began studying the issue with his associates behind closed doors shortly after the verdict was returned, according to James I. Cabezas, chief investigator for the state prosecutor's office. They're expected to make a decision by the end of the week, Deputy State Prosecutor Thomas M. McDonough said Wednesday.

Among the factors they're likely weighing is cost, in both dollars and time, said Andrew Levy, a defense attorney who also teaches at the University of Maryland School of Law. Arguments and testimony in Dixon's initial trial lasted six days, and jurors deliberated for an additional seven days, holding the attention of media, residents and city employees for weeks.

"I think that the prosecutor would consider whether the likely bang is worth the buck," Levy said.

Count 6 - like Count 4, on which Dixon was found guilty - is a misdemeanor involving the misappropriation of gift cards meant for charity: The Mayor's Holly Trolley Tour is the charity in this case and the amount of gift cards in question is about $100.

But given her lack of a criminal history, and the relatively small amounts of money involved, an additional guilty verdict on this count might not have much impact on her overall sentence, which could be months away. She faces up to five years in prison, though legal guidelines lean toward probation, lawyers said.

Rohrbaugh - who has said he won't serve more than his one term, which ends in September - and his team also have another trial to prepare for. The mayor, who will likely be suspended from her position after sentencing, is also accused of failing to declare gifts from a developer who was then her boyfriend on city ethics forms and lying about it. Dixon, charged with two counts of perjury, is scheduled to face trial in March.

"To try to step into the mind of the state prosecutor in this matter is pure guesswork," said criminal defense attorney Paul M. Sandler. But, he added, "If I had to bet, the prosecutor would not go forward with the other offense, particularly with the second trial coming up. And he might not even go forward with that, depending upon his re-evaluations."

It's unlikely that the leftover count could be rolled into that trial - they involve separate situations - lawyers said, but it could be used as a bargaining chip to encourage a plea or a promise that Dixon won't appeal the guilty verdict on Count 4. But it also might just be moot if the prosecutors believe justice already has been served.

Rohrbaugh has to consider "whether he is, in a sense, beating a dead horse, if you know what I mean. When do you stop?" Sandler said. But "in the final analysis, it's just his discretion."

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