His surreptitious videotaping of a woman showering at her parents' Edgewater home was sleazy, but it was the voices on the tape that got him in hot water.
Whether Thomas P. Deibler meant to capture voices and whether he knew that wiretapping is against the law - and whether either matters - are issues that lawyers will argue today when a challenge to his conviction in a voyeurism case comes before the state's highest court.
The issues go to the heart of Maryland's wiretap statute, a law prosecutors have long gnashed teeth over because it has been interpreted to mean that they must show that a person intentionally violated the law - a higher standard than nearly all other criminal laws.
Legal experts say that a ruling in this case could make the state's wiretapping law easier for prosecutors to use.
In June, Anne Arundel Circuit Judge Ronald A. Silkworth convicted Deibler, a Laurel tile installer, of wiretap violations for the bathroom tapes and of telephone harassment of the investigator.
Deibler was initially sentenced to six months of home detention and five years of probation, although the detention period was subsequently shortened.
Prosecutors are arguing to the Court of Appeals that Deibler knew what he was doing when he hooked audio and video cables into the camera. A December 1999 Court of Appeals ruling in an unrelated case implies that his knowing attachment of the cables was sufficient to show his intent, said Gary E. Bair, an assistant attorney general in charge of criminal appeals.
But Deibler's lawyer maintains that while the video voyeur knew what he was doing, he did not know until he was under investigation that it could brand him a criminal.
"The surreptitious placement of the video-recording device was morally wrong. However, it was not a criminal act under the law of Maryland if the defendant did not know that his conduct was illegal," defense lawyer Joseph D. Gallagher wrote in a brief.
Besides, the defense is arguing, Deibler didn't mean to capture voices - only images - despite having plugged the audio and video cables into the camera. The voices on the tape are of the woman and her father, after discovery of the equipment.
Joseph Murtha, the lead defense lawyer in the wiretap case of Linda Tripp, said it would be advantageous to prosecutors for the Court of Appeals to no longer permit ignorance of the wiretap statute as a defense and for the wiretap law to cover voices on videotapes.
It was Tripp's secret taping of her conversations with White House intern Monica Lewinsky that led to the sex scandal and impeachment of President Bill Clinton. Although the office of the state prosecutor pursued the wiretap case against Tripp, it was dropped after a pretrial ruling precluded Lewinsky from testifying and the state had no other witness to testify that Tripp broke the wiretap law.
The allegation against Deibler arose at a legally peculiar time. In spring 1999, the General Assembly made secret videotaping a crime, but the law did not take effect until Oct. 1. The taping incident took place June 19.
The defense is also contending that the 1999 ruling on which Bair is relying should not be applied to an incident that had occurred six months earlier.
But Byron L. Warnken, University of Baltimore law professor, said a judicial interpretation usually can be retroactively applied. And though the court will look at the legal issues as well as factual ones, "the action" is not going to be on the factual aspects, he said.
Deibler is also challenging his conviction of making three harassing telephone calls to David Cordle, the investigator, all left on Cordle's answering machine. The first included the sound of a bullet being chambered into a gun, and in the later ones Deibler said he thought Cordle was inappropriately questioning a female friend of his. Deibler later repeated the complaint to a prosecutor.
Deibler has argued in briefs that the tenor and content of the latter calls shows that as a group the calls are not harassing.
A lawsuit filed against Deibler by the woman who was videotaped is pending in Howard County Circuit Court.