By Andrea F. Siegel and Matthew Hay Brown, The Baltimore Sun
8:34 PM EST, January 17, 2013
Anne Arundel County Executive John R. Leopold has waived his right to a jury in his criminal misconduct trial, clearing the way for attorneys to make opening statements Friday in a case that now will be heard by a single judge.
The surprise move came during the second day of jury selection in the trial of Leopold, who faces charges of fraud and misconduct for allegedly using his taxpayer-funded police detail to run personal and political errands. Neither Leopold nor his attorneys explained the reason for the change of course or its timing.
But the switch to a bench trial often signals that complex legal issues will play a significant role in the proceeding. Prosecutors in the Leopold case face a dual challenge: Not only must they prove that he used his police detail in the ways alleged in the 10-page indictment, but they must also show that doing so was a crime.
Leopold, 69, is accused of using police officers to ferry him to parking lot liaisons with a county employee, to drive him around as he plucked an opponent's campaigns signs from the ground, to compile dossiers on perceived political adversaries and to keep his girlfriends from bumping into each other.
As former federal prosecutor Steven H. Levin put it, wrong doesn't always mean illegal.
"It may be very easy to prove that Mr. Leopold used his executive protection unit in this way," said Levin, a member of the team that prosecuted former Baltimore Police Commissioner Ed Norris. "But is it a crime?"
Leopold, a second-term Republican, was indicted last March on four counts of misconduct in office and one count of fraudulent misappropriation by a fiduciary. He has denied wrongdoing and has remained in office while under indictment.
If convicted of the fraud charge, Leopold could face up to five years in prison. Judges have broad leeway on sentencing for misconduct in office because the charge carries no specific penalty.
The sides had narrowed the pool of prospective jurors from an initial 336 in December to 58 on Thursday when Leopold rose to tell Circuit Judge Dennis M. Sweeney that he wanted to waive his right to have his case heard by a jury.
Sweeney accepted the waiver, dismissed the prospective jurors and adjourned the court until Friday. Outside the courtroom, Leopold attorney Bruce Marcus declined to discuss the rationale behind the decision. State Prosecutor Emmet C. Davitt said it would be inappropriate for him to comment.
Jury selection through Thursday probably cost thousands of dollars, based on the $15 each prospective juror is paid per day, including the days when prospective jurors filled out juror questionnaires. One of them said Leopold's decision might be for the best.
"A judge has a better understanding of the law and what is allowed and what is not allowed," Gerry Marinakis, a Severn engineering manager and one-time prospective juror, said outside the Anne Arundel County Courthouse. "An ordinary citizen might hear the details and go with his feelings."
Byron L. Warnken, who teaches criminal law at the University of Baltimore, described the state's official misconduct law as "a little more amorphous" than other criminal laws. "The sweep of the law is a little broader," he said.
Warnken, like Levin and other observers interviewed for this article, is not involved in the case.
"The prosecution can say you should know if you've been elected to do certain things and the taxpayers want you have a protective detail, then you should know that you don't use your protective detail to run personal errands and spy on political opponents," he said.
But the lack of specificity can cut both ways: Behavior that one person finds abhorrent, another might find reasonable. The lack of a consensus could favor the defendant.
Several lawyers said that the defense in such a case could point to the lack of clear rules relating to the use of the police detail. "You can have facts that would make normal people want to throw up — they are angry at the person — but it may not be a crime," said Abraham Dash, a University of Maryland law professor. "You are going to have to show that the statute covers what the charge is."
Added Levin: "Not every improper use of an executive protection detail is against the law. And if it is against the law, it should be spelled out as such."
Leopold's lawyers have argued in court documents that he has been "singled out" for prosecution for actions that others have also committed.
They say the law is too vague to pass constitutional muster. They have sought information from neighboring counties about their executives' protective details.
Baltimore defense attorney Andrew Levy said prosecutors will have to show that Leopold knew he was breaking the law.
To do so, Levy said, they might point to the allegation that Leopold directed one officer to drive him around before sunrise to uproot his 2010 opponent's campaign signs. Levy said if prosecutors can show he "did it in the dark, that allows a person to say he knew that it was wrong."
With the dismissal of prospective jurors Thursday, Sweeney released the 52-item questionnaire they filled out in December.
In addition to questions about their backgrounds, education, employment and familiarity with the case, they were asked if they had contributed to any of Leopold's political campaigns — or to an opponent's — and ever had contact with any of 100 individuals who might be mentioned or called as witnesses during the trial.
The list included Leopold's alleged live-in girlfriend and his alleged mistress; police, including those who had been on his protection detail; 2010 challenger Joanna Conti, whose signs he is alleged to have uprooted, and on whom he is alleged to have directed police to create a dossier; and former Anne Arundel Police Chief James Teare Sr., whose abrupt retirement last year ended an investigation into his actions.
Also on the list are U.S. Rep. C.A. Dutch Ruppersberger, Baltimore County Executive Kevin Kamenetz, Howard County Executive Ken Ulman and Janet S. Owens, who was Leopold's predecessor as Anne Arundel county executive.
Attorneys are expected to begin opening statements Friday morning. Davitt, the prosecutor, said it will likely take four days to present his case. He said he planned to call 10 to 12 witnesses, but that may change as the trial progresses.
Baltimore attorney Arnold Weiner, who defended former Mayor Sheila Dixon, former Gov. Marvin Mandel and former Rep. Edward Garmatz, said the public and media attention paid to the trials of public officials increases the pressure on all participants.
"The prosecutor who takes on one of these cases knows that everything he or she is doing is in the public eye," Weiner said. "The desire to win — or not to lose — is enormous.
"The judges feel the pressure to bring those cases to conclusion. In some instances, the judges feel pressure to bring those cases to a conclusion that [is] popular, when in cases that don't get so much attention, they aren't under the gun.
"Of course, those same pressures manifest themselves in connection with the defense lawyers as well," Weiner said.
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