Shawana Tyler, left, later Juror No. 3 in the trial of Mayor Sheila… (Baltimore Sun photo by Amy…)
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.
Juror No. 6, Shiron Davis, told attorneys that she had never been charged criminally or been the victim of a crime. Court records showed that she was charged twice with theft but that prosecutors placed the cases on the "stet" docket, meaning they were not actively pursuing them. Davis did not return a phone call Friday seeking comment.
Thompson said he sees Davis' failure to disclose the theft charges as "a minor oversight."
"In a lot of people's minds, these legal terms are all interchangeable - charged, convicted," he said. "All she knows is that the prosecutor put that case on the shelf."
The other juror, Shawana Ramirez Tyler, told the attorneys that she had never received gift cards from the city and did not know Dixon or a key witness. After the juror names were released, The Baltimore Sun reported that Tyler had received a shopping spree from the city and was photographed in the newspaper with then-City Council President Dixon and Mary Pat Fannon, the witness.
In an affidavit filed with the defense motion, Fannon said that she watched news coverage of the trial on television and recalled Tyler's "distinctive manner of speech" from the 2006 event. The next day, she read an article in The Baltimore Sun that quoted the juror by only her first name and recognized her as a person she "had become acquainted with" during the event.
Defense attorneys argued that Tyler "appeared to have been far too eager to be a juror in the case" and "put her own interests and agenda ahead of her public responsibilities."
Transcripts from the trial's jury selection process, filed as exhibits to the motion, show that Dixon's defense lawyers tried to have Tyler removed from the jury pool because of her work as a correctional officer, not because of any prior contact with the mayor.