Clarification sought on Tripp case ruling
Prosecutors move to give Lewinsky more latitude for testimony about tape
By Del Quentin Wilber
Sun Staff
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.
Originally published on May 13 2000 in Sun Spot.
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