Dixon verdict makes sense

Baltimore Sun

Mayor Sheila Dixon's plea deal and announcement of her resignation have brought objections from citizens who view the agreement as a cozy insider deal, or, worse, as evidence of corruption at the highest levels. This reaction is not surprising, but it is misplaced. The plea deal is a well-crafted result reflecting the prosecution's need for certainty and success on major issues, tempered by the knowledge that letting even a muted victory slip away would be disastrous.

Talk to any experienced judge, trial lawyer or courtroom observer about jury trials, and you will hear a common refrain: Trying cases is very risky; there are few open-and-shut cases. Seasoned state's attorneys will tell you of the eye-witnessed, hand-to-hand drug deal case that results in an acquittal. Lawyers and judges regale each other with war stories of the civil defendant and attorney, confident of their legal "principle" and facts, later stung with a big-dollar verdict.

How do these things occur? Even the best, most prepared witnesses get nervous and equivocate on the stand; lawyers and clients are at times shortsighted about the weaknesses of their cases; juries question the credibility of witnesses whom the lawyers convinced are truthful; an objection is raised to the admission of evidence or the proper instruction to the jury, resulting in a verdict overturned and a new trial. In considering the deal with Ms. Dixon, certainly State Prosecutor Robert Rohrbaugh's analysis was shaped by his similar experiences.

In a complex trial, with dozens of procedural and evidentiary issues, the defense will raise as many objections as possible at trial, understanding that success may come only on appeal. That appeal then results in a new trial, where one hopes for a better jury, a more favorable judge or unknown factors - for example, the unavailability of a witness critical to the initial verdict. In the Dixon matter, the developer Patrick Turner presented crucial testimony about his gift card dealings with the mayor. If a later jury found him less than credible, or if he was unavailable, the prosecution's case would evaporate. The jury here deliberated more than 40 hours, signaling to the prosecution that this was not a case in which they could count on a similar verdict in a future trial.

At the same time, the prosecution met vital objectives in the Dixon case, and for the broader investigation. Here, the Alford plea represents a tacit admission that there was sufficient evidence of embezzlement and perjury to convict the mayor. While the sentence of probation before judgment is not technically a conviction, the deal sends a message that her conduct was so dishonest that it amounted to a crime, warranting removal from office and resulting in substantial loss to Ms. Dixon's political future and personal reputation. There are significant financial repercussions as well: A $45,000 donation, 500 hours of community service and the sale of some of the questionable gifts she received. Combined, all of these elements amount to a prosecutorial victory.

What about the pension? Isn't Ms. Dixon "getting away" with the real crime in this? Not when viewed in the light of risk of loss and knowing what would make or break the deal. In addition to the unpredictability of appeals and future jury verdicts, Mr. Rohrbaugh had to consider the specter of the city's liability for Ms. Dixon's defense costs (likely exceeding $1 million) in the event that Ms. Dixon was cleared on appeal or new trial. Imagine the public outcry if it were known that Mr. Rohrbaugh rejected the plea and offer of resignation.

The prosecution had the burden of protecting broader objectives as well. Mr. Rohrbaugh conducted a multi-year investigation and has achieved other favorable pleas, but without Ms. Dixon, the investigation would have appeared hollow. In achieving Ms. Dixon's plea and resignation, Mr. Rohrbaugh overcame several presumptions that early pundits said would result in Dixon's acquittal: that a predominantly African-American jury would not convict an African-American mayor; that a predominantly female jury would not convict a popular female mayor; that Baltimore citizenry was simply not that concerned about minor ethical transgressions. The plea deal also sent a message to the Helen Holton team: The state prosecutor's office has succeeded and will continue to pursue these cases, and a Baltimore jury will convict even a well-liked politician for integrity crimes. The deal-breaker for Ms. Dixon was, apparently, the pension. Both prosecution and defense apparently protected their most important goals, while holding their noses and walking away from lesser issues that would have scuttled the deal.

In most cases, in my experience, there is a moment when the judge says to the lawyers and their clients "This is the last chance you will get to take control of your fate. Fifty percent of all litigants lose - you may not get everything you want, but by cutting a deal today, you can get something you want, and you will control your destiny - not me or the jury." The Dixon deal, like all compromises, was not perfect, but it was an intelligent deal crafted by a judge and lawyers with deep experience. To lose this case on appeal or at new trial would have been an abject prosecutorial failure.

Stephen B. Awalt is an attorney in Baltimore. His e-mail is sba@kdattorneys


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