Lawyers for John R. Leopold, the disgraced former Anne Arundel county executive, acknowledge his behavior was inappropriate. But they insist that's not a crime.
His attorneys are scheduled to appear at the Court of Special Appeals on Wednesday to argue that the conviction of the veteran Republican politician last January for criminal misconduct in office was based on a flawed reading of an unclear law and should be overturned.
"Leopold is unaware of any Maryland law which has imposed criminal liability for boorish, loutish behavior akin to the conduct in the … case," lead attorney Bruce Marcus wrote in a court filing.
A successful appeal would clear Leopold's record and possibly revive his political career. He hasn't announced any plans, but said last summer that he'd like to run again some day: "I still have a lot to offer, and would like to contribute in the way I know best."
Leopold, who turns 71 on Tuesday, declined to be interviewed for this story, saying it would be "imprudent" to comment before his court date.
Marcus, his attorney, also declined to speak to The Baltimore Sun, and the Office of the Maryland State Prosecutor has a policy against commenting on pending cases.
During the trial last year in Anne Arundel Circuit Court, prosecutors and witnesses said Leopold ordered his taxpayer-funded police protection detail to collect contributions from donors and compile dossiers on adversaries during his 2010 re-election campaign.
The two-term Republican was accused of forcing employees to empty urine from the catheter bag he used after back surgery; of asking police to deliver his campaign signs and uproot those of an opponent; and of directing police to drive him to the bowling alley parking lot and keep a lookout while he had sexual trysts in the back seat.
Circuit Judge Dennis M. Sweeney found Leopold guilty of two counts of misconduct, for using police to perform political functions and for requiring county workers to empty the catheter bag.
Sweeney, who heard the case without a jury, sentenced Leopold to 30 days in jail, community service, five years of probation and a $100,000 fine.
Jose F. Anderson, a professor at the University of Baltimore's School of Law, said Leopold's team could argue on appeal that prosecution wasn't the way to deal with his actions. Anderson said the allegations didn't involve elements typical in political corruption — he wasn't accused of taking bribes or kickbacks, or of using government money for personal gain.
"He's a politician," Anderson said. "If the citizens don't like his behavior, their remedy is to vote him out of office. The remedy is not for him to lose his liberty."
Still, he said, the appeal is a long shot: "In order for him to win, it seems to me that he has to be able to discredit the entire statutory scheme."
The sides have laid out their arguments in dozens of pages of briefings.
Leopold's team notes that misconduct in office is a common-law crime — that is, it's based on court decisions and rules inherited from the English legal system. That's different from violations defined in statutes passed by lawmakers.
Leopold's attorneys say common-law standards don't support the conviction, because misconduct cases usually involve allegations of bribery, extortion, falsifying information or obstruction of justice.
"The amorphous, highly individualized notions of what behavior is or is not socially acceptable cannot serve as a basis to impose criminal liability," Marcus wrote.
State Prosecutor Emmet C. Davitt argues that Leopold's actions were willful and corrupt.
"Requiring an elderly, female clerical employee to get down on her hands and knees in front of her male employer numerous times a day to drain the urine out of his catheter bag, and to continue to require that she do so for at least six months after he ceased to have even an arguable need for any assistance, constitutes an impermissible abuse of power," Davitt wrote.
Leopold wants to reverse the conviction, but he's also seeking to reverse a provision imposed by Sweeney that bars him from running for office while he serves the five-year probation.