Councilwoman asks judge to dismiss misdemeanor indictment

Posted: 7:26 pm Wed, October 7, 2009
By Brendan Kearney
brendan.kearney@mddailyrecord.com

Lawyers for Baltimore City Councilwoman Helen L. Holton argued on Wednesday that the case against her should be dismissed, although they acknowledged that part of it could be refiled in a lower court.

With Holton and her family looking on, attorney Joshua R. Treem told Visiting Judge Dennis M. Sweeney that the Baltimore City Circuit Court lacks jurisdiction because the two charges Holton faces — conspiracy to violate the campaign finance laws and conducting campaign finance activity other than through a campaign finance entity — are misdemeanors.

He asked the judge to throw out the indictment, which is related to a political poll commissioned by Holton but paid for by city developers Ronald H. Lipscomb and John Paterakis, and invited prosecutors to start over in Maryland District Court.

The developers, who together put up the $12,500 to pay Washington D.C. pollster Ron Lester, have both pleaded guilty and are cooperating with the Office of the State Prosecutor.

Treem’s associate, Nicholas J. Vitek, argued the election law on which the second count is based is unconstitutionally vague and asked for that charge to be dismissed.

Deputy State Prosecutor Thomas M. McDonough said the defense, in both motions, is stretching and straining to create a problem where none exists.

Sweeney promised to rule soon.

In May, Sweeney dismissed a bribery indictment against Holton because prosecutors had offered legislatively privileged evidence to a grand jury to secure it. The state appealed that ruling but, in the meantime, secured the new misdemeanor indictment.

When Sweeney dismissed the bribery indictment, a relieved Holton credited God. In court Wednesday, she held a Bible.

She watched the proceedings through red-framed glasses but offered no comment.

Treem’s argument centered on a statute that grants concurrent jurisdiction between district and circuit courts where “the penalty may be confinement for three years or more or a fine of $2,500 or more.”

If the qualifying penalties are read as alternatives, the circuit court may have jurisdiction since Holton’s charges come with the possibility of one year in jail or a $25,000 fine. Treem, however, says the definition should be read as a whole.

“In certain circumstances, where it makes sense, ‘or’ means ‘and,’” he said.

McDonough responded that his “public school education” taught him about conjunctions and commas.

“The clear flaw in the defense argument here lies in the theory that ‘or’ in the statute means ‘and’ except when it’s not convenient to mean ‘and’, and then it means ‘or,’” he said. “There’s simply no reason to change or read out of the statute its clear, plain, unambiguous meaning.”

Concerning the other motion to dismiss, Vitek complained that Maryland Election Law §13-202(a) does not specify who can be punished when campaign money doesn’t flow through the proper channels.

“It does not say what acts would be a violation of the statute, nor does it say what omissions would be a violation of that statute,” he continued.

McDonough responded that the candidate, who is notified by the State Board of Elections of her responsibilities, can certainly be criminally responsible if she allowed the proscribed activity to happen knowingly and willfully.

Even if the law does adequately identify who is on the hook and what her specific intent must be, “campaign finance activity” is not defined, Vitek countered.

Before leaving the bench Wednesday, Sweeney agreed with Treem that a jury questionnaire ahead of trial might make sense, given that the mayor’s trial, due to start on Nov. 9, will attract media attention. He said he has discussed the possibility of a similar screening tool in that matter, which concerns allegations that Dixon misappropriated gift cards intended for needy families for personal use.

“The experience we have in the Dixon case may educate us one way or another on this,” Sweeney said.