Dixon Motion Seeks New Trial

Defense Attorneys Cite Several Reasons To Start Over, Including:

December 12, 2009|By Annie Linskey and Julie Bykowicz | Annie Linskey and Julie Bykowicz , annie.linskey@baltsun.com and julie.bykowicz@baltsun.com

Testimony during jury selection

Shawana Tyler, Juror No. 3, shown gesturing, said she had no dealings with Sheila Dixon and did not know former city staffer Mary Pat Fannon, right, a witness in the case. But this and other Baltimore Sun photos show Tyler with Dixon and/or Fannon after winning a 2006 sweepstakes. Shiron Davis, Juror No. 6, said she had not been charged with a crime, but records show she was accused in 2007 of forging her sister's name on six checks.

Interaction between jurors

The judge had told jurors to "not engage in any discussions with each other." Shiron Davis invited James Chaney, Juror No. 12, to her house for Thanksgiving.

Dixon's charity and character

The mayor's lawyers say the judge should have allowed evidence showing that Dixon gave yearly donations of $7,582 to $11,990 to her church, Bethel African Methodist Episcopal, and regularly purchased gifts for needy families.

Facebook

Five jurors "friended" each other on Facebook, and Dixon's lawyers contend that the five became a "caucus" that was "able to overwhelm or neutralize any individual juror" who held opposing views.

Dropping Lipscomb charges

The theft case was supposed to focus heavily on developer Ronald H. Lipscomb, a former Dixon boyfriend who gave gift cards to the mayor when she was City Council president. But charges related to Lipscomb's cards were dropped midway through the trial, and the judge told jurors to ignore testimony and evidence related to them. Dixon's lawyers said that was impossible and that the jury was "hopelessly confused and tainted beyond redemption."

Failure to show Dixon was a 'fiduciary for the city'

Defense lawyers say prosecutors never showed that Dixon was acting as a fiduciary for a city program when she received and spent gift cards from developer Patrick Turner, and therefore the conviction should be stricken.

Lawyers for Sheila Dixon said Friday that the Baltimore mayor deserves a new trial because some jurors sent Internet messages to each other and lied about their past, while poor decisions by the judge led to confusing deliberations.

The arguments came in a detailed motion for a retrial that represents the final claim the defense can make before Dixon is sentenced Jan. 21. She was convicted last week of one misdemeanor count of embezzlement for using gift cards intended for the needy.

Dixon's filing contained three dozen exhibits that included suppressed evidence showing that she contributed $43,375.47 to her church during a five-year span and fresh hints that jurors might have discussed the case outside the courthouse.

"The interests of justice mandate that a new trial be granted," said defense attorney Arnold M. Weiner in a 41-page memorandum that accompanied his motion.

State Prosecutor Robert A. Rohrbaugh said Friday that he had "not even read" the document because he was in court most of the day on an unrelated matter. Prosecutors have 15 days to reply but said they hope to file before the deadline.

Brian G. Thompson, a Baltimore defense attorney and former city prosecutor who is not involved in the Dixon case, said post-trial motions like the one filed Friday "are rarely granted."

"Usually these motions are arguments the defense has already made to the judge during the trial," he said. "If it didn't warrant a mistrial at that time, it's hard to imagine it would warrant a new trial now."

A major part of the request for a new trial centered on two charges that Circuit Judge Dennis M. Sweeney dismissed in the middle of the trial.

Those charges stemmed from allegations that Dixon stole or misused gift cards donated by her former boyfriend, developer Ronald H. Lipscomb. Prosecutors never called him as a witness and said in court that they were forced to change tactics when Weiner, in his opening statement, vowed to eviscerate the developer on the stand.

But the defense team, echoing repeated mistrial motions that they made during the trial, complained that testimony given about gift cards from Lipscomb "so dominated opening statements" and evidence presented that it could not have been disregarded by the jury. Sweeney told the jury to disregard entirely six witnesses and dozens of documents admitted into evidence when he dismissed the Lipscomb counts.

Thompson said it is "unlikely" that Sweeney would break from his previous rulings about the spillover effect of the tossed out Lipscomb evidence. However, the lawyer said he found the argument to be "very persuasive and compelling."

"The difference is that now it is laid out in legal memo with substantial case law support," he said, offering one reason that Sweeney could change his mind and decide that the Lipscomb evidence had poisoned the jury. "When you're arguing something at trial, you can't cite chapter and verse case law on the spot."

Dixon's lawyers also said two jurors gave false statements during voir dire, the two-day selection process that began Nov. 9.

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