By DOUG DONOVAN

Baltimore got a crash course in colonial common law Thursday when nearly half of the pending criminal charges against Baltimore Mayor Sheila Dixon were tossed by the judge presiding over the case. The same judge, Dennis M. Sweeney, also threw out the entire public corruption case against City Councilwoman Helen Holton.

The two Baltimore Democrats had argued that the Maryland State Prosecutor had convinced a grand jury to indict them by presenting evidence that legally he was not allowed to use. What was the evidence?

The doctrine of legislative immunity, which dates back to colonial days, prohibits prosecutors from bringing civil or criminal charges against elected officials by using their legislative work as evidence against them.

Vote in favor of a tax break for a boyfriend who gave you a fur coat and paid for expensive trips, as Dixon did for developer Ronald H. Lipscomb? The vote itself can not be presented to the grand jury as evidence of her motivation in not reporting the gifts.

The Maryland state prosecutor argued that legislative immunity applied only to civil cases, not criminal ones, like the charges they leveled at Dixon and Holton. The defendants claimed it could.

Sweeney agreed. And it’s hard to argue with a 26-page explanation like the one he filed yesterday here.

In a nutshell, Maryland State Prosecutor Robert A. Rohrbaugh should not have submitted evidence of the legislative actions that Dixon and Holton took which appeared to buttress his case of perjury against the mayor and of bribery against the councilwoman.

One line says it all: “To the extent that the State Prosecutor, as the legal advisor to the Grand Jury, did not so advise the jurors that they must not consider or use legislative material, he was in error.”

The doctrine seeks to provide the protection so that citizens are not afraid to participate in the legislative process for fear of being sued.

Later, Sweeney writes, “Under Maryland law, a legislator, even when protected by the full force of immunities, does not enjoy a freedom from being prosecuted. She does enjoy the privilege of not having her legislative acts be part of the evidence arrayed against her.”

Sweeney’s action Thursday  left standing seven other criminal charges against Dixon, including allegations that she stole gift cards intended for the needy. If the state prosecutor tried to re-indict on the charges that were tossed (four perjury charges and one misconduct charge) , he would have to do so without presenting what votes Dixon and Holton took.

So how does the Maryland State Proseuctor’s office prosecute cases of public corruption if they can’t use a public officials’ public actions?

“It certainly isn’t going to make it much easier,” said Deputy State Prosecutor Thomas M. McDonough. “We’re probably going to take it up on appeal.”

Sweeney makes a convincing argument, says Byron L. Warnken, law professor at the University of Baltimore. An argument that even Warnken – probably the most often quoted legal expert in Baltimore – failed to make when asked to analyze the state’s case against Dixon and Holton.

“That’s why Weiner and Kelberman are paid the big bucks,” Warnken said, referring to Dixon’s attorneys, Arnold M. Weiner and Dale P. Kelberman, who sought the dismissals under the legal argument.

One frightening aspect of legislative immunity was spelled out in Sweeney’s memo: “The public official enjoys the absolute immunity even when the allegation is that the official took governmental action for the purpose of defrauding citizens.”

Illinois Gov. Rod R. Blagojevich should have proposed legislation formally requesting a public auction of Barack Obama’s vacated state senate seat, with the proceeds to go directly to Blagojevich’s campaign fund. So long as he proposed the auction under a legislative process – rather than in taped phone calls with potential bidders – prosecutors wouldn’t have been able to nail him for public corruption.

Oh, no, wait. Actually, unlike Maryland, the Illinois Supreme Court refused to extend the doctrine of legislative immunity to criminal cases, according to Sweeney’s opinion.

Without presenting evidence of Dixon’s legislative actions in writing, the ethics code that explains what should be disclosed in an elected official’s financial disclosure form, Rohrbaugh is going to have a hard time proving that Dixon knew she was omitting gifts from Lipscomb. He’d need a wiretap or some other evidence to show Dixon knew she was deliberately not disclosing the gifts.

The act of filing the financial disclosure form without those gifts may amount to perjury, but to prove that she did so knowingly Rohrbaugh has to prove that she knew the law. How could she know it? Through the legislative actions she took to help rewrite it some five years ago.

That’s quite a Catch-22.

Sweeney subtly chastised Rohrbaugh’s office for not once acknowledging that legislative immunity could apply to the cases against Dixon and Holton.

“He simply doubled-down on his theory that criminal prosecutions of
local legislators did not require the safeguards employed when other legislators are being prosecuted, and proceeded as if the doctrine (of legislative immunity) did not exist,” Sweeney wrote.

Clearly,  a big mistake.