By Alan Z. Forman
After giving the jury in the theft trial of Mayor Sheila Dixon what he termed “an extra dose of cautionary instruction” relative to the long Thanksgiving weekend, Circuit Judge Dennis M. Sweeney late Wednesday afternoon wished the jurors “a great holiday” with their families and recessed proceedings until 9 a.m. Monday.
The jury spent an hour and 20 minutes prior to being sent home for the four-day holiday weekend viewing a dvd containing edited testimony of three prosecution witnesses that the jurors had requested last Thursday but were denied because of objections raised by the mayor’s defense team on day 1 of jury deliberations.
Testimony of a fourth witness — Randell Finney, a Doracon Contracting Inc. employee and assistant to the mayor’s former boyfriend, Ronald H. Lipscomb, who established the real estate development and general contracting firm headquartered on E. Biddle Street in 1988 and serves as its president — was not included in the dvd.
Prepared by court technicians the video was viewed by defense and prosecution counsel prior to being shown to the jury and was not released to the public. A brief filed by some of the local news media requesting access to trial documents was not considered in time for the press to be given an opportunity to participate in viewing the edited testimony.
Earlier in the day the defense asked the judge to declare a mistrial, claiming that the jury was hopelessly “confused” regarding what evidence they were expected to consider and what had been thrown out because of a decision by the prosecution not to call a key witness to the stand to testify against the mayor.
There was also the prospect of confusion, the defense maintained, because the judge’s instructions to the jury indicate she can only be found guilty of a maximum three of the five remaining charges against her — there were originally seven charges before the prosecution decided not to call her former boyfriend Lipscomb — and that in two instances, if she is found guilty of theft she cannot be found guilty of misappropriation, and vice-versa.
The stress of having her personal and political future on the line was apparently finally getting to the till-now stolidly stoical mayor, who this week in the courtroom appeared alternately animated and gregarious, then grimly concerned and despondent.
At a rec center on Pennsylvania Ave. Tuesday night at which she handed out Thanksgiving turkeys to the needy with Baltimore Ravens star Ray Lewis, she looked quite grim according to most accounts.
‘ENEMY OF THE GOOD’
Judge Sweeney, after hearing arguments from both sides, quickly denied the defense motion to dismiss, as well as another request from Dixon's lawyers to end the proceedings later in the afternoon.
Claiming jurors were being asked to “play the part of a Talmudic scholar,” defense attorney Dale P. Kelberman pressed the judge to declare a mistrial, to which Sweeney responded that he had noted the defense motions to dismiss — “I hear you,” the judge said — acknowledging what he termed the “concern of all of us that this process is taking a great deal of time.”
In denying the motions to dismiss, the judge emphasized: “There’s no perfect solution — but we can’t let the perfect be the enemy of the good.”
The chief prosecutor, Robert A. Rohrbaugh, also noted that “five days [of jury deliberation] is long, but it’s not unheard of” and that “a mistrial would be a grave mistake.”
Kelberman reminded Sweeney that last Thursday, after hearing arguments from both sides, he had denied the jury’s request for transcripts of witness testimony, telling them in a note: “The transcripts are not available. You should rely on your notes and recollections except that which I ordered stricken.”
All testimony in the trial relating to developer Lipscomb, who was considered to be the key witness in the prosecution’s case, was stricken by the judge when prosecutors decided not to call Lipscomb to the stand, causing the defense to insist that the jurors now “have to remember what [they’re] supposed to forget.”
After five days of deliberation, Kelberman argued, it’s going to be “even more confusing to them,” adding that “video is not exactly what they asked for” anyway and asserting that “a dvd interferes with the jury’s ability to weigh the credibility of witnesses.”
A HOBSON’S CHOICE
He said that “to show the video in an edited fashion” creates “a Hobson’s choice” for the jury as well as possibly stimulating jurors “to want to see additional testimony.”
A Hobson’s choice necessitates taking either that which is offered or nothing — in other words, the absence of a real choice or alternative. (Thomas Hobson was a merchant in Cambridge, England in the 16th-17th centuries who rented horses, giving his customers only one choice, that of the horse nearest the stable door. —Ed.)
The dvd prepared for the jurors included video of the testimony of three prosecution witnesses: developer Patrick Turner, former City Council president’s and now mayoral aide Mary Pat Fannon, and portions of the testimony of the mayor’s current boyfriend, housing department employee Edward Anthony.
According to prosecutors, Turner bought gift cards from Best Buy and Target at the mayor’s request, ostensibly for disadvantaged families, which were then used by Dixon for herself, her aides and friends, including Anthony and Fannon, who admitted on the stand that the combined annual income of herself and her husband exceeded a half-million dollars.
According to testimony, Anthony and Fannon each received one gift card from the mayor’s largess. Dixon was originally charged with misappropriating approximately $1,500 in gift cards for the poor, spending well over $1,000 for personal items for herself, including an expensive video camera from Best Buy.
After all testimony plus two charges involving Lipscomb was stricken from the record, the aggregate value of gift cards the mayor is charged with misappropriating and/or stealing totals approximately $630, an amount many have categorized as "trivial." Others have said that "stealing is stealing," regardless of the dollar amount, and that Dixon's high office should not be a mitigating factor.
She is also accused of stealing six Toys“R”Us gift cards from the mayor’s annual Holly Trolley Tour, a charity event jointly sponsored by her and Baltimore Housing’s Office of Community Services, which delivers thousands of toys to needy children in and around the city at Christmastime.
‘DOING SUDOKU’
In addition, a number of unused gift cards in denominations of $25 and more were found by investigators in the mayor’s bedroom closet in a hot-pink Victoria’s Secret shopping bag, which Dixon claims to have mistaken for gift cards in small denominations allegedly given to her by former boyfriend Lipscomb.
Watching a video might keep the jury “from doing Sudoku — or whatever they’re doing back there [in the jury room],” the judge quipped, denying a defense motion not to show jurors the video and referring to the Japanese number puzzle/logic game that has gained great popularity, becoming an international hit several years ago.
On Tuesday, on three occasions when the jury was called to the courtroom, one juror, a young blonde woman, had her hair fixed three different ways, leading spectators to question what the jury was doing while it was supposed to be deliberating.
“Where are they finding time to fix each other’s hair?” asked one observer, speaking for several in the courtroom who took notice of the young woman’s coiffure.
“Refresh yourselves…. [and] don’t think about the case [over the Thanksgiving holiday],” the judge ordered the jurors as they left the courtroom at about 4:45 p.m. Wednesday.
Cautioning them not to discuss or read any newspaper or online accounts or talk about anything involving the trial nor watch any television reports, he told them: “See you bright and early Monday morning.
“Thank you for your diligence, hard work and effort,” he added, and do “not communicate with anybody in any which way” about the proceedings.
The jurors have deliberated nearly 35 hours over five days. What they finally decide will dramatically affect the political future of the first-term mayor, who will be forced, should the jury return a conviction on the one felony account against her, to resign her office and forfeit her $83,000 annual pension upon retirement.
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