The next round of memoranda have been filed by the parties to the Dixon case, where the Baltimore mayor (though the case relates to her activities as council president) is raising a defense of legislative immunity in a criminal proceeding for perjury (relating to failure to disclose) to keep out evidence that she knew that a developer who gave her many gifts was involved in a development with the city.

Her first defense of legislative immunity led to the indictment being dismissed, and a new indictment was made by a different grand jury. Dixon moved again to dismiss (click here [1] to read her original memorandum in support of her motion to dismiss).

Once again, the state prosecutor failed to raise the issue of waiver. And once again, the state prosecutor gave evidence to the grand jury that, as careful as he was to limit the content, could be considered, in a stretch, to be related to legislative activity. However, I think the prosecutor is right that the evidence of certain meetings (one was a public meeting that clearly had nothing to do with legislative activity) was so limited as to not undermine the entire case and merit dismissal.

The real problem here, and yet another reason why ethics proceedings should not be criminal, is that a criminal defendant can take the fifth amendment and refuse to admit that she knew the developer did business with the city. A criminal defendant can also make any cockamamy argument she wants to make, and it might very well be accepted. That is how our legal system works.

Our government ethics system is different. She wouldn't be tried for perjury, but brought up for a fine for failure to disclose information. She could argue that she didn't know, but since evidence could be shown that she did, she wouldn't waste the time. She could raise a defense of legislative immunity, but it could be argued that she waived any immunity that might apply, since the law relates solely to public officials (unlike perjury) and, in this case, since she helped draft the ethics law.

And it could be argued that legislative immunity and government ethics have exactly the same goal, and that her attempt to prevent evidence of her knowledge was an attempt not to protect her ability to legislate independently on behalf of her constituents, but to protect a representative willing to take gifts from those doing business with the city and not report it to her constituents.

For those interested, the parties' memoranda are attached. See below.

Here are links to earlier blog posts on this matter:
Favoring Friends and Family Catches Up to Baltimore Mayor [2]
Baltimore Mayor Indicted [3]
Legislative Immunity Goes Local [4]
Maryland Prosecutor Concedes [5]
Legislative Immunity Decision [6]
Dixon's Memorandum in Support of Her Second Motion to Dismiss [1]

Robert Wechsler
Director of Research, City Ethics

203-230-2548