State prosecutors filed a motion yesterday asking a Howard County Circuit Court judge to clarify a ruling that severely limits evidence in their wiretapping case against Linda R. Tripp.
The prosecutors declined to comment on the motion filed yesterday afternoon, and Tripp's lawyers said they would file a response Monday.
The prosecution states in its motion that it is essential that former White House intern Monica Lewinsky be allowed to testify that Tripp secretly recorded a conversation from her Columbia home.
They need her to testify that the tape contains her voice and Tripp's. They also are asking the judge to allow Lewinsky to identify a partial transcript of the conversation, which appeared in Newsweek magazine.
Last week, Judge Diane O. Leasure ruled that Lewinsky can testify only about whether she consented to Tripp's tape-recording.
Leasure ruled that Lewinsky's testimony was tainted by Tripp's immunized testimony to federal authorities. She also questioned Lewinsky's credibility, saying she had lied under oath and might have "shaped" her testimony in a December hearing in Ellicott City.
Tripp was indicted by a Howard County grand jury in July on two counts of violating Maryland's wire-tapping statute for recording a Dec. 22, 1997, conversation with Lewinsky and then having her attorney disclose its contents to Newsweek.
The disclosure of that recording and others made by Tripp revealed a sexual relationship between Lewinsky and President Clinton.
Tripp eventually was granted immunity by a federal judge in exchange for her testimony. That order forced state prosecutors to gather evidence independent from what Tripp told federal investigators.
Though State Prosecutor Stephen Montanarelli said last week the order means Lewinsky cannot identify her voice on the tape, his motion says the order "implicitly allows testimony identifying and authenticating the conversation."
To win a conviction, prosecutors must prove that Lewinsky's voice is on the tape or her words are in the Newsweek transcript. Without her testimony, they might have to drop the prosecution.
They cannot force Tripp to testify.
Before Leasure's ruling, prosecutors were relying on Lewinsky to do more than just identify her voice. They were using her testimony to date the tape-recording. Under the Maryland wire-tapping law, prosecutors must prove that Tripp knew it was illegal to tape in Maryland. The earliest date they can prove is in late November 1997.
If Leasure rules that Lewinsky can identify her voice on the tape, state prosecutors would have the chance to build a circumstantial case against Tripp. But they will have other hurdles and motions to overcome -- any of which could sink their case.
For example, defense lawyers could argue that Tripp turned the tape over to the Office of the Independent Counsel under a promise of immunity. That would raise the issue of whether Tripp voluntarily turned over that evidence, and Leasure could toss out the tape.
They could also run into trouble with officials at the Independent Counsel's Office. Those officials would have to turn over evidence showing the chain of custody of the tapes to prove that state prosecutors have the right one.
Without that documentation, state prosecutors would not be able to prove they had the tape from Dec. 22, 1997.
If federal authorities do not turn over that information, state prosecutors would have to rely on the Newsweek transcript.
That might be a problem because judges generally do not allow jurors to consider articles.