Juror contact in '06 with Dixon, witness could cause mistrial
By By Robert Little
Baltimore Sun reporter|
Dec 05, 2009 at 3:00 AM
A juror who helped to convict Mayor Sheila Dixon of embezzlement participated in a public event with Dixon and a key prosecution witness three years ago, receiving a $324 prize in a sweepstakes sponsored by a city agency. The prior contact, which was not disclosed before the trial, could give the mayor's lawyers grounds to pursue a mistrial, legal experts say.
The juror, 23-year-old Highlandtown resident Shawana Tyler, said she didn't disclose the information during the jury selection process because she did not recall Dixon having attended the event and did not realize that the sweepstakes was sponsored by a branch of city government. Tyler also said she did not recall the central role that former Dixon staffer Mary Pat Fannon played in the event three years ago, nor did she recognize Fannon during her testimony at the trial.
"I don't remember either of them being there, and no one ever asked me about it," said Tyler, who was Juror No. 3 in the trial that found Dixon guilty of misappropriating gift cards intended for charity.
Still, experts in jury dynamics said the undisclosed history is enough for the mayor's defense attorneys to ask that the jury's verdict be thrown out.
"That's bias, certainly enough for the defense to argue that it's bias," said University of Dayton law professor Thaddeus Hoffmeister, a jury specialist and Morgan State University graduate who has followed the Dixon trial.
The past contact with Fannon - a key prosecution witness who testified that Dixon gave her a $15 Toys 'R' Us gift card intended for needy children - is the most troubling, Hoffmeister said.
In 2006, Fannon was director of the Baltimore Development Corp.'s Main Streets program, which sponsored the sweepstakes that Tyler won. Fannon and Tyler appeared side by side when the award was presented. If defense attorneys had known about that, they might have speculated that Tyler could be predisposed to favor Fannon and give greater weight to her testimony, Hoffmeister said.
"Not only is that a personal relationship, the juror gained something from it," Hoffmeister said. "If it wasn't disclosed, it will raise all kinds of red flags with the defense. They can say, 'Had I known about this, she would have been the first person I struck from the jury.' "
Tyler, one of the more outspoken jurors since the trial ended, has talked extensively about the panel's deliberations, never suggesting that Fannon's testimony was important. Fannon declined to comment, and several calls to the Main Streets program were not returned.
Dixon's lead attorney, Arnold M. Weiner, said he intends to research the 2006 event, which was mentioned in a brief article, along with a picture of Tyler, in the Nov. 30, 2006, edition of The Baltimore Sun. Weiner declined to discuss the matter further but said: "We'll be reviewing it along with all the other things we'll be reviewing related to the trial."
Dixon's defense lawyers asked the court Friday for more time to craft a motion seeking a new trial, saying they need to "obtain certain transcripts of testimony and other evidence." The motion was denied, reaffirming a deadline of Dec. 11. The mayor's attorneys said they also are exploring questions about whether the jurors participated in prohibited communications with outsiders or with each other as the trial progressed.
Soon after the panel of nine women and three men began deliberating Nov. 19, half of them also began "friending" each other on Facebook. Juror No. 6, Shiron Davis, confirmed that the jurors had chatted on the social networking site.
During the four-day break in deliberations for Thanksgiving, Davis invited Juror No. 12, James Chaney, to her Edmondson Village apartment for Thanksgiving dinner. The Sunday before deliberations resumed, Juror No. 11, Elaine Pollack, wrote to Chaney, "Hi James! Ready for round……..oh I lost count! See you tomorrow!"
He replied: "Yeah its probably round 12 or 13 but im ready i guess. Hopefully it will be the last round."
"Al," a person not on the jury, added a comment to that online conversation that read: "Not guilty ..." After the verdict, Davis wrote: "NO AL, GUILTY AS HELL...SORRY."
Though presiding Judge Dennis M. Sweeney advised jurors to keep a low profile and not communicate with one another outside the jury room, it is unclear whether the Facebook communications amount to enough to overturn the guilty verdict. State prosecutors and defense attorneys learned of the online contact on Wednesday, when reporters asked questions after the judge released the list of juror names. Prosecutors said they view the communications as harmless, while Weiner said he is reviewing the content as a possible issue in appeals.
Tyler, one of two jurors who spoke publicly after the verdict, said she would have convicted Dixon of felony theft, the most serious of five counts in the case, but voted for a conviction on the lesser charge of misappropriation as part of a compromise with jurors who favored acquittal. She said a turning point in the case came the day before Thanksgiving, when the panel reviewed videotaped testimony by developer Patrick Turner. At the same time, they also reviewed a tape of testimony by Fannon, a City Hall lobbyist.
Tyler said she never recognized Fannon during the trial. Neither did she mark Fannon's name when she reviewed a list of possible witnesses that was given to all potential jurors with instructions to disclose whether they "know or have any relationship of a personal, business or other nature with the person."
She said she did not mention the shopping spree on a questionnaire for potential jurors, which included the question: "Have you, or any member of your immediate family, ever received any food baskets or gift cards from the City of Baltimore, the Office of the President of the City Council or the Mayor's Office?"
Sweeney has not made the juror questionnaires public, but during the trial, one juror interpreted the court's rules to mean that even incidental contact with Dixon must be disclosed. Pollack, Juror No. 11, sent a note to the judge Nov. 19 to say that she and Dixon had attended the same outdoor event in Hampden the night before, noting that no words had been exchanged, and it was unclear whether the mayor had seen her.
Tyler said she thought the sweepstakes event, during which she was given two minutes to fill a shopping cart at a grocery store as television cameras followed, was sponsored by the Markets at Highlandtown, where it was held. The cost of the shopping spree - $162.22 in food, which was then doubled - was donated by the store, according to market manager Josh Hershkovitz.
And Tyler doesn't recall seeing Fannon or Dixon, who was City Council president at the time and slated to become mayor several weeks later.
"I thought it was sponsored by the store," Tyler said.
But according to the sweepstakes rules, the event was sponsored and promoted by Baltimore Main Streets, a city government subsidiary created by Mayor Martin O'Malley in 2000. Tyler's name was selected in a random drawing from entries that were placed in boxes at retail stores in Highlandtown during the first three weeks of November 2006.
Pictures of the event, which were never published but have been kept in Sun archives, show Dixon speaking at an outdoor podium as Tyler waits nearby, and Fannon holding a microphone as Tyler stands at her side.
Attorneys in the state prosecutor's office declined to comment.
"It certainly is something that ought to have been disclosed," said David Gray, who teaches criminal law and criminal procedure at the University of Maryland School of Law.
"Whether she would have been removed from the jury for cause, or whether the defense or prosecution would have used one of their peremptory challenges to remove her, is, of course, something that we can't go back and find out.
"The question for the judge to consider will be whether this failure to disclose materially affected the outcome of the trial."
Baltimore Sun reporter Julie Bykowicz contributed to this article.