Kelberman also wrote that the state will have to prove Dixon "acted with the necessary criminal intent" when she used the cards, which, he noted, "do not identify the donor in any way."
Dixon was indicted in June on charges that she stole hundreds of dollars in gift cards intended for needy families and that she perjured herself when she failed to report other lavish gifts on her city ethics forms. The June charges replaced a similar indictment handed up in January. She has repeatedly said she is innocent.
The latest indictments, sought by State Prosecutor Robert A. Rohrbaugh, show that Dixon used roughly 60 gift cards purchased over two years by developers Patrick Turner and Ronald H. Lipscomb, as well as by a housing department employee. Prosecutors say Dixon requested the cards in her capacity as City Council president.
Kelberman argued in the court filing that prosecutors would have a difficult time proving who initially purchased the gift cards, pointing out testimony given by an investigator for the prosecutor's office that the gift cards were "very difficult to trace" because developers did not always use credit cards.
Special Agent John Poliks agreed with a statement that "if you buy a card in cash and you use that card in the same denomination there is no record of who used it," according to a transcript from a July grand jury proceeding. State prosecutors show in the June indictment that in some instances Dixon spent the cards within days of requesting them from developers. Other times, cards were spent more than a year later.
Steve Levin, a defense lawyer not involved in the case, said: "In a case like this, intent is everything. I think it is a reasonable defense that she mixed up various gift cards."
Levin said a defense strategy might be to bring as witnesses families who received gift cards intended as presents to Dixon to illustrate a mix-up.
Kelberman also included in his filing several evidence forms which show that the reach of a three-year City Hall corruption investigation included subpoenas for records from Microsoft Corp. for Dixon's children. No records were located in that search.