McLean case cited for taint

August 16, 1994|By Jay Apperson | Jay Apperson,Sun Staff Writer

Asserting that the appearance of political influence has tainted court proceedings in Baltimore comptroller Jacqueline F. McLean's theft and misconduct case, Maryland's special prosecutor yesterday asked that the case be heard by a judge from outside the city.

In making the request, special prosecutor Stephen Montanarelli said a June 10 meeting between several City Council members and two Baltimore Circuit Court judges has "seriously and irreparably damaged the Court's ability to deal fairly and impartially" with the case.

"In order to restore public confidence in the adjudication of these indictments, it is necessary that they be assigned to a judge with no affiliation with the political structure or government of Baltimore City, or with the defense or the prosecution," he wrote in a 10-page motion.

A lawyer for Mrs. McLean vowed to fight the motion and said the prosecutor is creating a problem where none existed.

"To suggest there is not a Circuit Court judge in Baltimore that can be impartial is outrageous to me," said M. Cristina Gutierrez.

Mrs. McLean retired last month after receiving approval from the city pension board to step down with full benefits. She is accused of stealing more than $25,000 by having a fictitious consultant on her payroll and of trying to arrange a $1 million city lease for a family-owned building. She has pleaded innocent.

She is scheduled to be rearraigned Sept. 2, a date set after the meeting between the City Council members and Joseph H. H. Kaplan, administrative judge of the Baltimore Circuit Court, and Joseph P. McCurdy Jr., the judge in charge of the criminal docket.

Council members who met with the judges were: Vera P. Hall, the council vice president; Sheila Dixon, D-4th; Iris G. Reeves, D-5th; Melvin L. Stukes, D-6th; and Carl Stokes, D-2nd.

Both judges said that the council members made no requests, and that the postponement was a certainty by the time of the meeting because the comptroller had been involuntarily committed as a state mental patient earlier in the day.

Still, the meeting was widely criticized as having the appearance of a political power play, in part because the City Council approves the court's operating budget and because Judge Kaplan is running for re-election this year.

Judge Kaplan eventually said he regretted his decision to meet with the politicians.

L At the time, Mr. Montanarelli did not criticize the meeting.

"I believe that [the council members] were concerned that Jacqueline McLean was being treated differently than other defendants, and they voiced their concerns," he said then. "That's their right to do so. As far as I'm concerned, the action that was taken was legal."

In papers filed yesterday, the prosecutor wrote: "Despite their good intentions, Judges Kaplan and McCurdy have allowed the appearance of impropriety and political influence to taint any further proceedings conducted by a Baltimore City judge."

In his motion, Mr. Montanarelli recounts the strange twists the case has taken. He notes Judge McCurdy's refusal to grant a postponement in June after the defense argued that while Mrs. McLean was competent to stand trial, her mental condition was too fragile for a trial.

The motion also notes that Ms. Gutierrez and another McLean lawyer, William H. Murphy Jr., then asked the assigned trial judge, Elsbeth L. Bothe, to recuse herself from the case -- and accuses both lawyers of trying to provoke the judge into making "intemperate" remarks.

Finally, the motion recounts the prosecution's version of events surrounding the meeting between the judges and the council members. The gathering in the reception area of Judge Kaplan's chambers included attorneys in the case and state Del. Curt Anderson, a lawyer in the Murphy-Gutierrez firm, the motion said.

The motion requests that Judge Kaplan ask Robert C. Murphy, chief judge of the Maryland Court of Appeals, to name an outside judge to preside over pretrial hearings and the trial.

Judge Kaplan yesterday faxed Ms. Gutierrez a letter, instructing her to respond to the motion by Thursday. He said he would then rule on the request.

The judge said he set the Thursday deadline in hopes that the Sept. 2 court hearing could proceed as scheduled.

Asked whether the case could be resolved then with a plea agreement -- Mrs. McLean has been offered the chance to plead guilty and serve 30 days in jail -- Ms. Gutierrez said only, "I'm an eternal optimist and I have high hopes, given the integrity of the Baltimore Circuit Court."

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