SMOKE, BUT NO FIRE

THE BALTIMORE SUN

Having failed during the trial in their attempts to demonize the prosecution, Mayor Sheila Dixon's lawyers shifted tactics in the motions for a new trial they filed Friday and sought to demonize the jury, the 12 men and women who spent 40 hours over seven days in a painstaking debate over the guilt or innocence of Baltimore's most prominent elected official.

In the telling of attorney Arnold Weiner and his colleagues, the jurors all but engaged in a criminal conspiracy of their own to deny the mayor a fair trial. No doubt some of the facts that have come out since their verdict - guilty on one charge, not guilty on three and hung on one - are unsettling. It certainly would have been preferable if one juror had acknowledged her experience in the criminal justice system, if another had mentioned her contact with Mayor Dixon and another witness years earlier, and if some jurors had not become friends on Facebook. It might have been easier for the jurors if two charges had not been dropped during the trial and if they had not been ordered to disregard the testimony related to them.

But aside from innuendo and baseless accusations, Mayor Dixon's attorneys provide no evidence that any of the omissions or extra-judicial communications served to prejudice the jurors against the mayor. In fact, in many cases, common sense would suggest the contrary.

* Theft charges against Shiron Davis. Mayor Dixon's attorneys argue for a mistrial based on the discovery after the trial that Juror No. 6, Shiron Davis, had failed to disclose during jury selection that she had been subject to theft charges two years ago. According to the attorneys, Ms. Davis was charged with stealing checks from her sister and using them to obtain $3,720 in cash. She was arrested and brought to trial Sept. 14, 2007. Under an agreement with the prosecutor, the charges were put on the inactive docket.

As the mayor's attorneys point out, the jurors were specifically asked whether they had been charged with theft within the last five years, and Ms. Davis indicated that she had not. However, Ms. Davis was charged with taking more than six times as much as Mayor Dixon was found guilty of embezzling, and she received no punishment whatsoever. How would that make her more inclined to throw the book at Mayor Dixon?

* Contact between the mayor, a witness and Shawana Ramirez Tyler. Ms. Tyler, known during the trial as Juror No. 3, won a sweepstakes sponsored by the city in 2006 in which she received more than $300 in free groceries. At the award event, she was photographed near Ms. Dixon, who was then City Council president, and Mary Pat Fannon, a Dixon aide who was a witness in the trial. Ms. Tyler did not reveal during jury selection that she had previous contact with Ms. Dixon or Ms. Fannon, and she indicated she had not received a food basket from the city.

In interviews with The Sun, Ms. Tyler has said she did not realize that the contest was sponsored by the city, and she did not recall having met Ms. Dixon or Ms. Fannon. Though it may seem unlikely that she would not have remembered Ms. Dixon, it bears noting that as council president, she was a much less well-known figure. Nonetheless, it's hard to see how the memory of winning $300 in free groceries would have prejudiced Ms. Tyler against Ms. Dixon.

Would the contact with Ms. Fannon have made the juror more inclined to believe her testimony? Perhaps, but that testimony related to the charge on which the jury was hung, not the one on which the mayor was convicted.

* Facebook friends. During the trial, five jurors became friends on Facebook. Some of the messages they exchanged were publicly visible on the wall of Juror No. 12, James Chaney. The messages indicate that the jurors exchanged brief messages such as "Ready for round ...... oh I lost count! See you tomorrow," and "Hopefully today will be the last." On the last day of deliberations, a nonjuror commented, "Not guilty." After the guilty verdict, one juror responded, "NO AL, GUILTY AS HELL."

From this, Mr. Weiner imagines a conspiracy of five jurors to band together and stamp out dissent among their colleagues. He assumes that there must be other communications of a more nefarious nature, but he has no evidence of it.

The jurors were repeatedly told not to discuss the case outside of the jury room, and they should not have become Facebook friends. But Mr. Weiner provides no evidence that they engaged in any deliberations outside the jury room.

* New evidence. Mayor Dixon's attorneys allege that jurors must have sought information outside the record of the trial based on a jury note on the penultimate day of deliberations asking to return in the morning "due to new things brought to light." But jurors have explained in interviews that the note referred to the realization that they did not have to return a unanimous verdict on all counts.

The attorneys also refer to unsubstantiated reports that jurors discussed the case with third parties during the later stages of deliberations, but they offer no evidence proving the conversations took place or what was said.

* Dropped charges. The attorneys renew a motion they made for a mistrial on the grounds that dropping two of the charges during the proceedings hopelessly confused the jury and prejudiced them against Mayor Dixon. As evidence of confusion, the attorneys point to the length of the deliberations and a single question about whether a piece of evidence was to be considered. (It was.)

If the jurors had been confused, surely they would have had to ask about more than one thing. And the length of deliberations doesn't indicate confusion but the highly charged nature of the case; jurors have indicated that three members of the panel initially refused to convict no matter what the evidence said.

As far as prejudicing the jury against the mayor goes, the fact that the jury acquitted on three counts, including the sole felony charge, and could not come to a decision on a fourth, indicates that they were able to make a nuanced decision, not one driven by emotion.

* Evidence of the mayor's generosity. The mayor's lawyers argue that the court committed a fatal error by excluding character witnesses who would have testified to Ms. Dixon's habits of giving to charity. However, giving to charity and stealing are not mutually exclusive. The more crucial question was Ms. Dixon's honesty, a point on which her pastor and others did testify.

* Jury instructions. The defense objects to the manner in which Judge Dennis Sweeney advised jurors that they need not render verdicts on all counts but encouraged them to do so if possible. The mayor's counsel suggests this may have had a coercive effect, but that notion is belied by the fact that the jury did return a partial verdict shortly thereafter.

* The capacity in which Ms. Dixon received the gift cards. Mr. Weiner argues that the state failed to show that Ms. Dixon received the gift cards she was convicted of embezzling in her official capacity as a fiduciary of Baltimore City. He emphasizes testimony showing that the gift cards for charity program was an informal one, not an official city program. However, the cards were delivered to Ms. Dixon's office at City Hall, and the program was run by a Dixon staffer on city time.

Mayor Dixon's attorneys indeed identify conduct that jurors should not have engaged in and questions they should have answered more honestly, but they fail to show that these errors prevented her from receiving a fair trial. They have identified plenty of smoke, but no fire.

Readers respond

If there's a mistrial for one charge, there should be a mistrial for all charges. The same jury that convicted her on one charge acquitted on several others and rendered no decision on one other. I'm sure the prosecutor would like to have another shot at all the charges Mayor Dixon faced.

Tim Weber

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