Saying the punishment is too severe for a woman nearly in ruin, attorneys for former Baltimore Comptroller Jacqueline F. McLean have asked a judge to effectively void her conviction in a corruption scandal last year so that she may keep her $23,850 annual pension.
The motion -- which is being hotly protested by the state special prosecutor -- asks that Mrs. McLean's sentence for theft and misconduct be modified to "probation before judgment," which would strike the convictions from her record.
Mrs. McLean's chief aim in seeking the sentence modification is to keep her pension medical benefits, which now pay for $200 to $300 worth of Prozac and other psychiatric medications each month "that she so strongly needs," said her attorney, M. Cristina Gutierrez.
"As a woman of 50, as a fallen public figure and as one suffering from depression, her future has been rendered bleak, albeit by her own actions," Ms. Gutierrez wrote in her motion for sentence modification.
"Our system of justice should not seek to destroy her, but having punished her, should allow her the opportunity to redeem herself and become again a productive, contributing citizen," the motion said.
Mrs. McLean tearfully pleaded guilty in September to stealing thousands in taxpayer dollars by having a fictitious employee on her payroll. She also was found guilty of steering a lucrative city lease to the former headquarters of her family's travel agency.
In December, a judge sentenced her to three years in prison but suspended it and placed her on probation for five years. Circuit Judge Donald J. Gilmore suggested that she be allowed to retain part of her pension.
But after seeking legal advice, the pension board determined that she was barred from receiving the pension by the city code, which states that no elected official may receive benefits if convicted of a job-related offense punishable by at least six months in jail and a $500 fine. Her attorneys appealed the decision.
Mrs. McLean suffered a breakdown during the scandal and has been under psychiatric care for more than a year. Ms. Gutierrez argued that the conviction, and the possible loss of benefits, constitutes "cruel and unusual punishment" for a mentally ill woman with no income who needs psychiatric care.
But Stephen Montanarelli, the state's special prosecutor, called Judge Gilmore's sentence "extraordinarily lenient and merciful" and said a modification would only "protect [Mrs. McLean] from the collateral effects of her own criminal acts."
Mr. Montanarelli wrote that a court should not reverse itself simply because a convicted criminal is seeking a civil remedy, such as a judgment for a pension.
"Just as this court would not interfere in a civil matter between a private employer and a former employee convicted of stealing from the employer, it should not interfere in similar proceedings between [Mrs. McLean] and the city of Baltimore," Mr. Montanarelli's motion said.
A finding of probation before judgment would "prejudge the civil issue" and would "deny the citizens of Baltimore City the civil sanctions which they, through their elected representatives, have determined are necessary . . . to impose on elected officials who, by their criminal conduct, have proven themselves unworthy," he said.
Judge Gilmore said yesterday that he will hear arguments at an as-yet unspecified date, possibly in mid-September. He declined to comment on the case.
At her sentencing last year, Mrs. McLean told the judge in a halting voice that she feared above all losing her medical benefits. Without the pension, she said, she would not be able to continue her therapy or pay for the medication that keeps her from slipping into despair.
In Ms. Gutierrez's motion, Mrs. McLean was described as still suffering from the "debilitating effects of major depression" and that it would be "grievously unfair" to deprive her of a means to treat her mental illness.