Every year in Maryland about 300,000 criminal cases work their way through circuit courts.

Of those, few, if any, result in a judge calling jurors back to the courtroom for questioning of alleged misconduct weeks after a trial has ended — as has happened in the case against Baltimore Mayor Sheila Dixon.

“It’s extremely rare,” said attorney Charles Ware, the author of Understanding The Law: A Primer. “We defense attorneys usually can only dream about something like this happening.”

Accused by defense attorneys of violating a judge’s order, five members of the jury that convicted Dixon of misdemeanor embezzlement have been called to appear at a motions hearing Jan. 6, in which the mayor will seek a new trial.

Dixon’s attorneys have accused jurors Nos. 3, 6, 8, 11 and 12 of becoming friends on Facebook, a social networking site, and sending messages to each other there, in violation of Baltimore Circuit Court Judge Dennis Sweeney’s order not to discuss the case.

For instance, according to the motion filed by defense attorneys, juror No. 6, Shiron Davis, wrote in capital letters during one of the Facebook messages that Dixon was “GUILTY AS HELL,” and juror No. 11, Elaine Pollack, of Hampden, posted a message stating that she was “ready for round ... Oh I lost count! See you tomorrow.”

Dixon’s attorneys, Arnold Weiner and Dale Kelberman, presented the alleged misconduct in a motion to Judge Dennis Sweeney on Dec. 11.

“(These) facts require the Court to conduct a further inquiry … by obtaining the full record of all the communications among the jurors, including communications among those jurors after they were alerted to the fact that their communications during the trial had been discovered, to determine the extent of the juror misconduct,” Weiner and Kelberman wrote.

Sweeney agreed and sent a letter to the five jurors asking them to bring printouts of all their Facebook communications that took place between Nov. 9 and Dec. 1, the dates Dixon’s trial began and ended.

But prosecutors argued that “the Constitution entitles a criminal defendant to a fair trial, not a perfect one.”

State Prosecutor Robert Rohrbaugh argued in a motion in opposition to a new trial that jurors are permitted to talk to each other, even on Facebook, about innocuous matters, not about the trial.

He wrote that Davis’ statement that Dixon was guilty was posted only after the final verdict had been reached and announced.

“At no time did the court suggest that the jurors could not talk to one another and exchange pleasantries,” prosecutors wrote. “Indeed, that type of limitation would have been unreasonable.”
 
Ware said the Facebook communications between the jurors is uncharted territory legally and shows the many ways our world is changing.

“It’s a shift in the paradigm of jury deliberations,” he said. “The new electronic age is going to change everything.”

In addition to complaints about the jury’s behavior on Facebook, Dixon’s attorneys, Arnold Weiner and Dale Kelberman, also argue that:

• Davis lied during jury selection when she said she had never been accused of a crime, though court records show that she was charged with stealing checks from her sister;

• that the opening statement by Maryland State Prosecutor Robert Rohrbaugh inundated the jury with “highly prejudicial” statements about Dixon’s involvement with her ex-boyfriend, developer Ronald Lipscomb, that were never proven, because prosecutors did not call Lipscomb to the stand;

• that the judge erred by not allowing character witnesses to vouch for Dixon’s “generosity and charity” in a trial about stealing gift cards from the needy.

Dixon was convicted Dec. 1 of one misdemeanor count of embezzlement for misappropriating gift cards given to her by developer Patrick Turner but intended for needy children in Baltimore.
 
Ware said he didn’t believe that Davis’ non-disclosure of her criminal record would cause Sweeney to order a new trial, because “frequently jurors lie in the jury pool.”

“That is not unusual,” he said. “It’s a insufficient nexus for a new trial.”

But the Facebook issue could have longer-lasting implications, he said.

“That’s such a new area. I’m not sure we’re sufficiently aware of all the possible ramifications. The mere fact that it’s such a new thing means it may well be worth the appellate court taking at look at the issue.”

 

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