New judge appointed for McLean

August 23, 1994|By Jay Apperson | Jay Apperson,Sun Staff Writer

A new judge was assigned yesterday to preside over former Baltimore Comptroller Jacqueline F. McLean's next day in court, after a judge who met with members of the City Council stepped aside to avoid any appearance of politics influencing the case.

Donald J. Gilmore, a retired Carroll County Circuit Court judge who has been working as a visiting judge in Baltimore, was assigned to preside over Mrs. McLean's rearraignment Sept. 2 on theft and misconduct charges. He replaces Judge Joseph P. McCurdy Jr., who cited concerns over how the public might view his decisions after his meeting with five members of the City Council to discuss circumstances surrounding the McLean case.

Judge McCurdy, who has maintained that the meeting June 10 was not improper, nonetheless said, "I would assume somebody would say, 'He listened to the City Council people, that's why he did this or did that.' "

Joseph H. H. Kaplan, the administrative judge for the Baltimore Circuit Court who was also present for the meeting with the council members, announced the change during a hearing on a prosecution motion that a judge from outside Baltimore be brought in to preside over the case. Judge Kaplan said the motion, which asserted that the case has been tainted by the appearance of political influence, was an affront to his bench.

"This is an insult to the whole Circuit Court for Baltimore City, to say out of 25 judges -- 26, actually, including myself -- there isn't a judge who could dispose of this case fairly is insulting and I won't insult my fellow judges," Judge Kaplan said.

He added, however, that city judges "have not been beating down my door to hear this case" in explaining why he was assigning the case to the former Carroll County judge.

Furthermore, Judge Kaplan said the case, if it goes to trial, would still be assigned to Judge Elsbeth L. Bothe -- despite repeated demands from Mrs. McLean's lawyers that Judge Bothe not hear the case because of what they termed her "intemperate" behavior in previous hearings.

Mrs. McLean retired last month after receiving approval from the city pension board to step down with full benefits. She is %J hTC 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 not guilty.

Her rearraignment date was set after the meeting between the judges and City Council members 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.

The judges said the council members did not influence the decision to postpone the case, 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.

During yesterday's hearing, Judge Kaplan repeated that he had come to regret meeting with the council members because of the "appearance" it created. He then accused state prosecutor Stephen Montanarelli of being inaccurate in describing the events, bemoaned the fact that some of the council members did not admit they were at the meeting and hinted at his displeasure with Judge Bothe. Judge Kaplan complained that Judge Bothe knew of the meeting in advance and called him while it was happening, but later was critical of it.

Judge Bothe said yesterday, "I never have thought there was anything wrong with his trying to appease the public, but I did think it was wrong what he did, . . . taking the case out of my court."

In opposing the prosecution motion that an outside judge be assigned to the remainder of the case, defense attorney M. Cristina Gutierrez said Mrs. McLean has a right to be tried "in the ordinary course of business" in Baltimore Circuit Court.

Ms. Gutierrez also complained of the acrimonious atmosphere during three days of pretrial hearings in June before Judge Bothe and said the judge also improperly discussed plea discussion with reporters. At one point, Mrs. McLean was offered a chance to plead guilty and serve 30 days in jail, but that offer was withdrawn after her suicide attempt in April. Mr. Montanarelli later sought a year in jail for Mrs. McLean, Ms. Gutierrez said.

Mr. Montanarelli yesterday presented a document spelling out an agreement, reached by lawyers on both sides on June 10, that would have had Mrs. McLean plead guilty to felony theft and misconduct in office, but left the matter of sentencing to Judge McCurdy. Because Mrs. McLean never signed on to that accord, and because Judge McCurdy is no longer in the case, no agreement now exists.

Ms. Gutierrez said Mrs. McLean remains hospitalized but has in the past several weeks made "remarkable progress" and may be prepared to resolve the case Sept. 2.

An issue remaining open, however, is whether Judge Gilmore will preside over that hearing. After Judge Kaplan announced the assignment, Mr. Montanarelli pointed out that he was a law school classmate of the judge's and that the two have remained close friends.

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