Justice system looks tawdry in McLean case

June 12, 1994|By MICHAEL OLESKER

The telephone rang in Judge Joseph Kaplan's chambers at 10:30 Friday morning. It rang with Jacqueline McLean under a suicide watch in a room at St. Joseph Hospital, and it rang with Billy Murphy and Cristina Gutierrez emptying their lungs at Judge Elsbeth Bothe, and it rang with Bothe trying to hold back the inevitable.

On Judge Kaplan's telephone was City Councilwoman Vera Hall, who said she wanted to meet with him. About Jackie McLean, she said. About how upset "the community" is, she said. About how the city comptroller, accused of stealing and manipulating big money, was suffering badly now and was only "about one-20th" the person she used to be.

An hour later, according to Kaplan, Hall was there in his office, and so were several other council members -- Iris Reeves, Carl Stokes, Sheila Dixon, Melvin Stukes -- and they were asking Kaplan to postpone the case against McLean and effectively take it out of Judge Bothe's hands.

"A double standard," they told Kaplan. "McLean is being treated differently, and in a rougher way, because she's a black woman."

"She's not," Kaplan replied. "She's being treated no differently than Jeffrey Levitt or Jerome Cardin, or Allan Pearlstein or Wally Orlinsky. All white men, and none given a slap on the wrist."

But the atmosphere in the courtroom, Kaplan was told. Too combative. Too many bared teeth.

And, on this, Kaplan nodded his head and agreed. Things had gotten out of hand, he said. The battles between defense attorneys Murphy and Gutierrez and Judge Bothe were "inappropriate and make the whole system look like a circus."

But, even as he spoke the words, events had already begun to take the decision out of Kaplan's hands and put it strictly in the psychiatric community's. At 7:30 that morning, McLean's psychiatrist, Dennis Kutzer, met with her to check her condition before court and asked if she had thoughts of suicide.

"That's an option," McLean said, according to a memo written by Kutzer. "Let me be judged by God. At least he won't be biased, and maybe he'll forgive me."

Kutzer felt he had no choice but to set into motion the process to involuntarily commit her, effectively prohibiting her from standing trial now.

"Why do you keep wanting to save me?" McLean said. "I'm not worth saving."

"Does this mean we're going to lose you?"

"Yes," she said.

She said it at the end of a hellish week, a week in which her attorneys vented themselves at Judge Bothe, and Bothe tried to hold her ground, and in the end everybody was brought low, especially Jacqueline McLean.

On Wednesday, she collapsed in court and had to be led out of the room. On Thursday, only the ministrations of Gutierrez seemed to keep her calm. On Friday, she was placed on suicide watch, while her attorneys did what they'd attempted to do all week, which was to remove Judge Bothe from the case.

Some of this is personal, and some not. "They see sparks when they see each other," Judge Kaplan said, meaning the defense attorneys and Bothe. "There's no trust there."

But there was something else: Jacqueline McLean's case looked like a plea bargain from the day she was indicted. It's been an open secret among all parties, and among all courthouse observers who know the nature of such cases. The point of contention has been this: Would she have to do time in prison?

And this is why, for three days, Murphy and Gutierrez did verbal battle with Judge Bothe, openly expressing contempt for her, hollering at her, attempting to prod her into an outburst and thus disqualify herself from objectively overseeing the case.

A tentative deal had been struck months ago: If McLean would plead guilty, the state prosecutor, Stephen Montanarelli, would agree to a 90-day sentence, of which McLean would have to serve 30 days. But then, apparently surprising everyone, McLean attempted suicide.

Or seemed to. Montanarelli wasn't buying it. He felt McLean had made a bid for public sympathy and, feeling public pressure for stiff sentencing, said the deal was off. Now, he said, she could plead guilty and have to serve a year in jail.

In time, Montanarelli cooled, and the 90-day offer was back on the table. But, when all parties finally met Wednesday morning in Judge Bothe's chambers, the judge reportedly said she wanted McLean to get two years in prison. Murphy and Gutierrez, infuriated, took that as a signal that they had no choice: They had to remove Bothe from the case.

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