McLean to defy judge's order for psychiatric tests

May 28, 1994|By JoAnna Daemmrich and Jay Apperson | JoAnna Daemmrich and Jay Apperson,Sun Staff Writers

A defense lawyer for indicted Baltimore Comptroller Jacqueline F. McLean told a judge yesterday that she would advise her hospitalized client to defy a court order to undergo an independent psychiatric evaluation.

Mrs. McLean, whose political career unraveled amid charges of theft and misconduct in office, has been despondent and under psychiatric care for the past four months.

"We believe this is a fishing expedition to get into her private and personal medical records," attorney, M. Cristina Gutierrez, said after a closed-door court hearing.

Baltimore Circuit Judge Joseph P. McCurdy Jr. emerged from the hearing in his chambers and granted a request from the state prosecutor to have a court psychiatrist determine whether the comptroller is competent to stand trial.

In a matter-of-fact voice, Ms. Gutierrez told the judge that she would advise her client to ignore his order.

She gave no reasons beyond saying that Mrs. McLean is undergoing therapy and drug treatment for severe depression. She noted that it was Maryland's special prosecutor, not Ms. Gutierrez, who raised the issue of whether the comptroller was psychologically able to face trial.

"Well, that's up to her," said State Prosecutor Stephen Montanarelli. "That's a court order."

Citing the comptroller's continued psychiatric hospitalization and risk of suicide, Ms. Gutierrez had asked for at least a three-month delay of her June 8 trial.

Judge McCurdy said yesterday that he would not decide on the postponement until after he receives the results of the psychiatric evaluation. He ordered that a thorough examination by the court medical office be completed within seven days. Ms. Gutierrez said she does not believe that her client will be found in contempt of court because her Fifth Amendment right to remain silent would outweigh the judge's decision.

The comptroller went on an indefinite leave of absence in December amid allegations that she stole more than $25,000 from the city coffers by sending checks to a phantom consultant and nonexistent women's organization.

She also is accused of trying to arrange a $1 million city lease of the former Federal Hill headquarters of her travel agency. Her $53,000 annual salary is being held in escrow.

Mrs. McLean's psychiatrist, Dr. Dennis Kutzer, has said she suffers from chronic depression that worsened under the strain of the criminal investigation.

In January, Mrs. McLean, 50, was admitted to Sheppard and Enoch Pratt Hospital. She spent much of the winter in the private mental health institution while a city grand jury considered the case against her.

On the night of April 14, two months after she was indicted on jTC misconduct and theft charges, Mrs. McLean attempted suicide with a near-fatal overdose of prescription pills and alcohol. She was taken to Union Memorial Hospital and then returned to Sheppard Pratt.

Ms. Gutierrez said yesterday that she requested a trial postponement until after Sept. 1 because the comptroller's doctors have prescribed a long-term treatment of anti-depressants.

"Our position and Dr. Kutzer's position is that she is still regarded as highly suicidal," the lawyer said.

Over the objections of the state prosecutor and an attorney for The Sun, Judge McCurdy closed the hearing on appointing a court psychiatrist to examine Mrs. McLean. He also granted Ms. Gutierrez's request to keep all medical records and related documents sealed.

Mrs. McLean's lawyer argued that without the consent of her client, the public should not be given access to the comptroller's health records. The "personal and privileged information," she said, is shielded by Maryland law. Mr. Montanarelli said the comptroller's fragile emotional state already has been made public by her attorneys.

He and Mary R. Craig, the attorney representing The Sun, noted that there have been many references to Mrs. McLean's depression in newspaper articles. They argued that the court must find that "no reasonable alternative short of closure is available."

Judge McCurdy said he was keeping the hearing private because the issue of competency had been raised by the state prosecutor, not the defendant. He expressed concern about otherwise prejudicing the case against Mrs. McLean.

Ms. Craig said the freedom of public access to court hearings is protected under the First Amendment and the state cannot simply close proceedings because they contain medical information. She called the move "an extraordinary event" and said the newspaper would consider filing an appeal.

"We think the hearing should have been open because now, no matter what the judge decides to do, the public will have no way of evaluating whether the judge's decision was fair," she said later. "It seems to us to be particularly troublesome when an elected official has been charged with the misuse of public funds."

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