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Joseph Murtha represented Linda Tripp, in photos behind him, when she was charged in 1999 with illegally recording phone conversations with Monica Lewinsky. The case involved the only Kastigar hearing in Maryland history, where prosecutors were unable to prove they were not using any immunized testimony as part of their case. A similar hearing could happen with Officer William Porter, who is also represented by Murtha. (File photo)

William Porter, Linda Tripp and a rarity in Md. criminal proceedings

The Court of Appeals set the stage for a rare kind of pretrial hearing in ruling Officer William Porter can be compelled to testify against his fellow officers with immunity despite his retrial scheduled for June.

Though the court has not issued a written opinion detailing its reasoning, judges during oral arguments questioned the defense’s concerns about the feared violation of Porter’s right against self-incrimination because a Kastigar hearing – named for a 1972 Supreme Court case – is designed to make prosecutors prove they are not using any immunized testimony as part of their case.

A Kastigar hearing has only occurred once in Maryland in 44 years at either the state or federal level. It was in another high-profile case followed by a national audience – and included one of Porter’s attorneys.

Joseph Murtha won that Kastigar hearing on behalf of Linda Tripp, which led to key evidence being suppressed in Tripp’s wiretapping case because it was based on statements Tripp made with federal immunity and prosecutors ultimately dropping the charges.

Tripp was charged in 1999 with violating Maryland’s wiretapping law for recording phone conversations with Monica Lewinsky without Lewinsky’s knowledge or consent.

The Kastigar hearing was held to determine whether evidence presented to the Howard County grand jury – which resulted in the indictment – as well as potential trial evidence had been tainted by the media blitz surrounding the federal investigation of President Bill Clinton, which Tripp cooperated with in exchange for immunity.

State v. Tripp

Maryland’s investigation into Tripp began in 1998 when she was also assisting the federal Office of Independent Counsel during Kenneth W. Starr’s grand jury investigation into Clinton. For the state’s case, Lewinsky needed to provide for the Office of the State Prosecutor dates for some of the conversations Tripp recorded in December 1997, to show Tripp continued recording after learning doing so violated Maryland law.

But Lewinsky was heavily exposed to Tripp’s immunized testimony prior to a summary of Lewinsky’s testimony, including the dates of the recorded conversations, being submitted to the grand jury.

Then-Howard County Circuit Judge Diane O. Leasure, who presided over the Kastigar hearing, admonished the state prosecutor’s office for making no effort “to ascertain whether Ms. Lewinsky had, in fact, responded to their requests for information based upon a review of the transcripts [of the tape recordings] provided by the OIC.”

“The use of immunized testimony by witnesses to refresh their memories, or otherwise focus their thoughts, organize their testimony, or alter their prior or contemporaneous statements, constitutes indirect evidentiary use of the immunized testimony or cooperation,” Leasure wrote, citing Kastigar.

Leasure ruled Lewinsky’s testimony was inadmissible because the state did not meet its burden to show the testimony was not in some way based on Tripp’s testimony under immunity.

Porter’s immunity

In Porter’s case, prosecutors face a different situation because a full trial, which ended with a hung jury, has already occurred prior to any immunized statements being made.

In Kastigar v. United States, the Supreme Court found use and derivative use immunity, which was granted to Porter, is coextensive with the constitutional privilege against self-incrimination. This type of immunity prevents the state from using any of Porter’s testimony directly or indirectly, including conducting investigations based on the testimony.

Porter’s retrial is scheduled for June and, at that time, if the defense raises the issue, a Kastigar hearing will be necessary to ensure only evidence derived from independent sources is used against him.

Assistant Attorney General Carrie Williams told the Court of Appeals at oral arguments on the issue the state was locked in to presenting virtually the same case at the retrial or else Porter’s attorneys will claim it was derived from his testimony with immunity.

Experts have said this could make a Kastigar hearing in Porter’s case relatively easy because of the complete trial record, including hours of testimony from Porter and his recorded statement to investigators.

A new schedule of the remaining officers’ cases, which were put on hold during the appeal, has not been placed on the record, and it remains to be seen how many times Porter may have to testify prior to his retrial.

Lt. Brian Rice’s trial, set to begin the day after the Court of Appeals lifted the stay on proceedings, was reset for April.