Missing label leaves murder trial unglued Judge cites technicality in barring recording as evidence in case

March 27, 1998|By Joan Jacobson | Joan Jacobson,SUN STAFF

As Glenda Schwandtner sees it, all that stands between justice and her brother's long-unsolved killing is a tiny number a Baltimore County police officer neglected to glue onto a tape recorder.

The trial of John S. Derry, 44, on first-degree murder charges in the 1978 killing of 22-year-old Mark S. Schwandtner has been derailed because police left the identification number off a tape recorder used for an alleged confession. In a pretrial ruling, a judge threw out key evidence -- a secretly made tape of Derry -- because the number wasn't "affixed," as specified by state law.

Now, a county prosecutor says that unless he can overturn a judge's ruling on the issue, Derry will go free.

"For one little word to have such an impact is very frustrating. You're already a victim, and now you're being victimized again by the law," said Glenda Schwandtner, Mark's younger sister. "I doubt if they would ever have made any arrests, without that tape."

Baltimore County Circuit Judge Christian M. Kahl refused to allow the tape recording into evidence because police failed to glue the state police-issued number "BA1786" to a mini-cassette recorder. The number identifies it as police department equipment.

State law requires tape recorders to be registered with police -- and identification numbers attached -- to track evidence that will later be used in criminal trials.

"It seems to me it is absolutely fatal to the state's introduction of the tape. It doesn't come in," Kahl ruled in November, according to a transcript of the hearing.

James O'C. Gentry Jr., the assistant state's attorney prosecuting the case, is waiting for the Court of Special Appeals to rule on the Baltimore County state's attorney's appeal of Kahl's decision.

That decision isn't expected for several months.

Schwandtner, a construction worker, died June 9, 1978, after he was beaten in the head with a baseball bat and drowned in Gunpowder Falls in White Marsh.

It took 18 years for police to arrest three men in the killing. The first of the three, William R. Issacs, was convicted of second-degree murder in November. He is scheduled to be sentenced in June.

Although investigators had no weapon, fingerprints or other direct evidence in the killing, a jury convicted Issacs based on the testimony of an FBI informant who said Issacs confessed in a Hampden bar to killing Schwandtner the day the young man's body was found.

The informant, Charles Wilhelm, also is the man who wore the hidden mini-cassette tape recorder Feb. 4, 1996. It was at that meeting that Derry, now a Hampden plumber, admitted to the killing, according to court documents.

If the appeals court upholds Kahl's decision, Gentry said he will have to drop the charges against Derry because the "law says you can't try the case if you lose the appeal" on the evidence.

Derry's lawyer, David B. Irwin, said he didn't want to comment "until there is a final decision by the courts of appeal."

Prosecutors still plan to hold a trial on first-degree murder charges against the third man charged in the case, Ronald G. Rogers Sr., also using testimony from Wilhelm.

Gentry hopes a recent decision by the special appeals court will strengthen his case against Derry.

That decision, made by the court in an unrelated case two months after Kahl's ruling, stated that a prosecutor does not need to prove recording equipment is properly registered when a tape is admitted into evidence.

Kahl, in a recent interview, said if that decision had been available to him in the Derry case, he could have used it to allow the tape to be introduced.

But the judge said he made his ruling "on the law as I understood it to be" at the time. "If I had the option to overturn it, I would."

Pub Date: 3/27/98

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