In a decision that could force state prosecutors to drop the wire-tapping case against Linda R. Tripp for lack of evidence, a Howard County circuit judge denied yesterday their attempt to have Monica Lewinsky identify a conversation taped by the Columbia resident.
Strongly reaffirming an earlier decision that state prosecutors had sought to clarify, Judge Diane O. Leasure again ruled that Lewinsky cannot testify about crucial issues at Tripp's trial.
Though prosecutors declined to discuss whether they will drop the case, Assistant State Prosecutor Thomas M. McDonough said: "Something will be decided in short order.... We will make a decision about how this [the decision] affects our case."
Tripp was indicted on two counts of violating Maryland wire-tapping law in the tape-recording of a Dec. 22, 1997, conversation with Lewinsky and then having her lawyer disclose its contents to Newsweek magazine. She turned over that tape and others to Independent Counsel Kenneth W. Starr, exposing a sexual relationship between Lewinsky, a former White House intern, and President Clinton. Tripp was granted court-ordered immunity and testified several times before a federal grand jury.
One of Tripp's lawyers, Joseph Murtha, hopes state prosecutors drop the case, but he said "the fight is not overyet. If they decide to proceed with the prosecution, we anticipate filing additional motions."
Murtha has said he would seek to delay the trial, scheduled for July, until next year.
In her ruling yesterday, Leasure agreed with Tripp's lawyers that state prosecutors were seeking to reverse an earlier ruling, not simply clarify its language. Leasure ruled May 5 that Lewinsky was tainted by Tripp's immunized testimony to federal authorities.
Because Tripp was granted court-ordered immunity, state prosecutors had to prove their evidence was completely independent of Tripp's immunity deal.
After a series of hearings, Leasure ruled that Lewinsky was tainted by Tripp's immunized testimony and cannot testify about the tape-recording.
After that decision, State Prosecutor Stephen Montanarelli said: "We're going to have to review all the evidence now. We have to [replace] Lewinsky. That's my problem. That's a big problem."
Despite that roadblock, state prosecutors were able to retain a key element of Lewinsky's testimony. Leasure ruled that Lewinsky can testify that she did not consent to Tripp's taping. Consent is an important part of Maryland wiretap law.
Motion to clarify
State prosecutors then filed a motion to clarify that order, arguing that Leasure's decision to allow Lewinsky to testify about consent permitted her to identify the conversation.
Leasure agreed with Tripp's lawyers yesterday that treating "the State's Motion as a request for clarification, as opposed to a reconsideration, would be to put form over substance."
The judge then said state prosecutors did not meet the burden of finding new evidence or legal errors for her to reconsider her order.
Writing that "in the event a higher court" disagrees with that assessment, Leasure reiterated the problems with Lewinsky's tainted testimony and said her ruling was clear. She said state prosecutors' contention that she left open the possibility for Lewinsky to identify the conversation "is a strained interpretation" of her May 5 decision.
Lewinsky's testimony was described as "essential" by prosecutors in their motions, and its loss could prove to be insurmountable.
Prosecutors had planned to use Lewinsky to authenticate a partial transcript of the tape-recording, which appeared in a February 1998 Newsweek story. Lewinsky would have testified that the transcript resembled a telephone conversation that took place while Tripp was at her Columbia home.
By using other witnesses, state prosecutors would have been able to build a circumstantial case that Tripp taped Lewinsky.
Without Lewinsky identifying the transcript, state prosecutors will have a much harder time using it as evidence. They also will have a hard time proving that Tripp knew it was illegal to tape-record others without their consent
They were relying on Lewinsky to date the conversation, which she did during a December hearing. The earliest state prosecutors can prove that Tripp knew it was illegal - which Tripp admitted during her federal grand jury testimony - is late November 1997.
Without Lewinsky, it is unclear how state prosecutors would be able to prove the tape was made a month later.
State prosecutors can try to introduce the tape and have someone testify that Lewinsky's voice is on it. They would then have to call experts to testify that the tape was a legitimate recording.
But that could prove troublesome on two fronts.
First, a five- or six-witness trial would become a trial of 12 to 15 witnesses, including experts. Defense lawyers would then call witnesses and experts, who would probably offer contradictory evidence.
Second, state prosecutors would not have an easy time getting the tape into evidence.
They probably would be forced to obtain the cooperation of federal investigators to turn over reams of paperwork and custody material to prove they have the recording.
They also would have to surmount more motions that present as many complex legal obstacles as recent ones.