A month after the end of the Linda R. Tripp case, which put Maryland's wiretapping law in the spotlight, another trial resumes this week in Anne Arundel County that could reveal legal loopholes in prosecuting another kind of secret recording: video voyeurism.
A Laurel man is charged with illegal wiretapping by surreptitiously planting a video camera in the bathroom of a house whose owners had invited him as a guest.
The lawyer for Thomas P. Deibler said the state's wiretap law does not apply to what his client is charged with doing, and a video voyeurism law that took effect in October has left a gap between the law and technology that prosecutors say allows some types of secret taping.
W. Eugene Smallwood, Deibler's lawyer, told Anne Arundel County Circuit Judge Ronald A. Silkworth last week that his client secretly videotaped a 42-year-old woman as she showered and used the toilet in her parents' Edgewater home, where he was a guest of the family, on June 19 last year.
"It wasn't nice at all. But it wasn't illegal," Smallwood said later.
"He wanted to get a picture of her taking a shower, which is wrong. And I don't blame her for being ticked. But the state is going after him for something that doesn't really fit because they are mad at him," he said.
Parts of the tape have sound, mostly chatter between the woman and her father as they wondered about her discovery of a video lens in a basket on a counter - that was wired to a camera in a cabinet. She said she gave the tape they found to authorities the next day.
Smallwood said the sound recording was unintentional and that prosecutors are wrongly using that to prosecute.
"He had no reason to try to record these people's voices. But the video, that's different," Smallwood said.
Besides, he said, Deibler, who lives in the 9100 block of Grant Ave. in the Howard County section of Laurel, didn't know that unauthorized audio taping was illegal.
Last month, state prosecutors dropped charges against Tripp, a Columbia resident whose secret taping of Monica Lewinsky exposed the White House sex scandal that led to the impeachment of President Clinton. A Howard County judge ruled that Tripp's federal immunity barred key portions of Lewinsky's testimony about the women's taped conversations.
The outcome of Deibler's case, which also includes an allegation of telephone harassment of the investigator, will turn on the fine points of the law.
Prosecutors said they could not charge Deibler, 34, who operates a tiling business, based on a silent video because secret videotaping is not a crime. What allowed them to press charges was the sound on the tape. A wiretap conviction carries a penalty of up to five years in prison and a $10,000 fine.
Byron Warnken, professor at the University of Baltimore School of Law, said that if the judge finds that the law permits the video but that the audio is illegal, he must "make sure the defendant is not being convicted based on the video. I may be offended by the video but not the audio. ... The audio portion is really incidental to the video."
A prosecutor's counter-argument would be to say that it's all part of one tape, Warnken said.
Assistant State's Attorney Laura M. Skudrna noted a quirk in the wiretapping law. "The wiretap statute is unique in that ignorance of the law is a defense," she said.
Under Maryland law, it is illegal to record other people without their consent. Smallwood said his client did not know at the time that taping, at least the audio portion, was illegal. He read up on wiretapping once he knew he was under investigation.
Skudrna contends that Deibler knew what he did was wrong. First, he hid the camera, he said.
Second, a search of Deibler's home turned up an apology drafted to the woman's family. It reads in part: "Usually priding myself for being able to make the correct choice in the matters of right and wrong, I missed this one by a mile and for that I have great remorse."
Third, Skudrna said, about a month and a half later, Deibler left three messages on the voice mail of David Cordle, the investigator. One has the sound of a round being put into the chamber of a gun. The others tell Cordle he has no case and to stop questioning people he knows.
Last year, the woman on the video said investigators suspected that Deibler had taken similar videos of her niece four years earlier in another location, entered a still photo from them in an Internet site contest and won a prize. Cordle said Deibler told him that a photo made from a video that investigators found in Deibler's computer was of a customer of his business.
Deibler is not charged in connection with those allegations. Neither does his letter allude to any other incidents, saying that his actions "have been stopped at the beginning, rather than turning into some sort of perverse habit."
Skudrna said that even if the Edgewater videotaping had occurred after the law took effect in October, prosecutors could not have used it to charge Deibler.