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DIXON MOTION SEEKS NEW TRIAL

THE BALTIMORE SUN

Testimony during jury selection

Shawana Tyler, Juror No. 3, shown gesturing, said she had no dealings with Sheila Dixon and did not know former city staffer Mary Pat Fannon, right, a witness in the case. But this and other Baltimore Sun photos show Tyler with Dixon and/or Fannon after winning a 2006 sweepstakes. Shiron Davis, Juror No. 6, said she had not been charged with a crime, but records show she was accused in 2007 of forging her sister's name on six checks.

Interaction between jurors

The judge had told jurors to "not engage in any discussions with each other." Shiron Davis invited James Chaney, Juror No. 12, to her house for Thanksgiving.

Dixon's charity and character

The mayor's lawyers say the judge should have allowed evidence showing that Dixon gave yearly donations of $7,582 to $11,990 to her church, Bethel African Methodist Episcopal, and regularly purchased gifts for needy families.

Facebook

Five jurors "friended" each other on Facebook, and Dixon's lawyers contend that the five became a "caucus" that was "able to overwhelm or neutralize any individual juror" who held opposing views.

Dropping Lipscomb charges

The theft case was supposed to focus heavily on developer Ronald H. Lipscomb, a former Dixon boyfriend who gave gift cards to the mayor when she was City Council president. But charges related to Lipscomb's cards were dropped midway through the trial, and the judge told jurors to ignore testimony and evidence related to them. Dixon's lawyers said that was impossible and that the jury was "hopelessly confused and tainted beyond redemption."

Failure to show Dixon was a 'fiduciary for the city'

Defense lawyers say prosecutors never showed that Dixon was acting as a fiduciary for a city program when she received and spent gift cards from developer Patrick Turner, and therefore the conviction should be stricken.

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.

"I think she's constantly around people who have been convicted of crimes every day of her life, and I'm sure she hears stories all the time about people claiming their innocence who are incarcerated," Dixon attorney Dale P. Kelberman argued.

Sweeney approved Tyler for the jury, saying, "I believe her responses on the questionnaire ... indicate her full qualification to be a juror," according to the transcripts.

Tyler could not be reached for comment.

Defense lawyers also pointed to five jurors who sent messages to one another through a social networking site during the trial, despite the judge's order that they not communicate with each other about the trial outside the jury room.

Defense attorneys said Facebook exchanges were akin to the group forming "their own caucus," which enabled them to "present a united front" and "exercise coercive influence" over other jurors.

The attorneys also argued that several comments the judge made to the jury on its final day of deliberations amounted to improper coercion to reach a verdict.

When jurors asked on the seventh morning whether they "need to be unanimous on all five counts," the defense team suggested that Sweeney respond in writing that the jurors could return a partial verdict. The judge decided to instruct them verbally instead, saying "to the best of your ability ... resolve all the counts." The defense attorneys argue in their post-trial motions that Sweeney's comment "was not in proper form and coercive."

Other information in the filings Friday included an e-mail from a Circuit Court secretary saying that someone who claimed to be a friend of a Dixon juror overheard the juror talking about the trial over Thanksgiving. Defense attorneys, during the trial, had expressed skepticism that the jurors would be able to take a four-day holiday break without discussing the case.

Also, a Baltimore resident called 311 to report that she had overheard a white female juror with blond curly hair discussing the case at a Burger King near Charles and Fayette streets.

The jury, a panel of nine women and three men, deliberated for seven days before finding Dixon guilty of one charge and acquitting her of three others, including felony theft. Jurors failed to reach a unanimous verdict on a charge that Dixon misused gift cards from a city-funded charity program.

In a new trial, Dixon would face only the embezzlement charge on which she was found guilty and the misdemeanor charge that hung the jury.

The Democratic mayor could lose her job and her roughly $83,000-a-year city pension when she is sentenced in January. Dixon still faces a separate perjury trial, which is scheduled for March.

Thompson said that while it sounded as if Dixon's defense team had raised legitimate concerns, he was doubtful that any of the issues would "rise to the level of having prejudiced the outcome, which is the only way a new trial would be granted."

The defense strategy is likely an effort to "preserve every possible issue for appeal," said Douglas Colbert, a professor at the University of Maryland School of Law who observed much of the trial with his students.

In order to appeal Dixon's conviction - something that can only happen after the judge has sentenced her - defense attorneys must first raise objections in their motion for a new trial, Colbert said.

He noted that it can be "difficult to persuade a trial judge that there has been an error that requires the reversal of the jury's verdict."

Baltimore Sun reporter Robert Little contributed to this article.

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