An attorney for John R. Leopold told the Maryland Court of Special Appeals on Wednesday that prosecutors in the former Anne Arundel county executive's 2013 misconduct case failed to prove that his actions — while salacious and perhaps unethical — amounted to a crime.

Leopold, 71, was found guilty of two counts of misconduct in January 2013 and resigned days later, but he now wants those convictions overturned. If that effort fails, the Pasadena Republican is asking the court to at least strike down a provision of his sentence barring him from running for public office while he's serving a five-year probation.

His attorney, Bruce Marcus, told the three-judge appeals court panel that it's not clear Leopold acted criminally when he ordered police officers to do campaign work or directed a female employee to empty urine from his catheter bag after his 2010 back surgery.

He said 15 random people could be asked, and they'd likely offer different opinions about whether Leopold's actions were criminal.

"We could have a debate of what these acts are," Marcus said. "At what point do we determine misconduct occurred?"

Marcus also said the state's case was flawed because prosecutors changed the way they characterized Leopold's actions. Early in the case, prosecutors said the basis for a misconduct charge was misfeasance — that otherwise legal actions were carried out improperly or unlawfully — but changed it at the trial stage to malfeasance, claiming the actions themselves were illegal.

State Prosecutor Emmet C. Davitt, countered that the switch was a matter of semantics that isn't "fatal" to the case. He said either way, Leopold was aware of the accusations against him from his indictment in 2012 to the trial in January 2013.

The bottom line, Davitt said, is that Leopold used his authority in an unlawful manner.

"It was a misuse of county employees on duty," he said.

Marcus said Leopold didn't have malicious intent when he ordered police and county employees to drain urine from his catheter; he was in pain from surgery and needed help. The attorney noted that when one of his assistants said she would no longer do it, Leopold acceded to her request.

"Yes, the conduct is boorish … [but] when the time came for employees to say, 'We aren't doing this,' that was it," Marcus said.

Leopold was not convicted of other allegations made in the indictment and at trial, including having police uproot his opponent's campaign signs, ordering police and employees to run interference between his mistress and girlfriend, and for having police drive him to back-seat trysts in parking lots.

Both Marcus and Davitt were peppered with questions from the judges hearing the appeal.

Afterward, Davitt defended his prosecution of the case, saying, "Mr. Leopold had a fair trial." He declined to comment further.

There's no indication when the appeals court will rule, but time may be of the essence for Leopold. He has indicated he might seek public office again, and if he wins permission to run, the deadline to file as a candidate for the 2014 election cycle is Feb. 25.

Leopold has not indicated any specific office he might seek, and Marcus said only that the former executive was "very anxious for the entire thing to be over."

Leopold was not present at Wednesday's proceedings and has previously declined to comment on the case. After his conviction and resignation last year, the County Council replaced him with current County Executive Laura Neuman.

pwood@baltsun.com

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