Maryland's highest court has overturned the conviction of the man sentenced to die for the killing of an 8-year-old quadriplegic boy and two other people in Silver Spring in a notorious and gruesome murder-for-hire scheme that drew national attention.
The Court of Appeals, by a 4 to 3 decision, ruled inadmissible a taped conversation between James Edward Perry, the man convicted in the 1993 crime, and Lawrence Horn, the boy's father.
Montgomery County State's Attorney Douglas F. Gansler said he looks forward to retrying Perry, "perhaps as early as this spring."
In the ruling, the appeals court said making the tape violated the Maryland wiretap law, a stringent statute that has figured in the legal controversy surrounding the impeachment of President Clinton. The Perry case has also given rise to significant First Amendment litigation.
Language in the opinions released yesterday betrayed vigorous differences among the judges. One judge in the minority called it "getting away with murder." Gansler said overturning a conviction such as Perry's "on a technicality . . . breeds cynicism."
Perry, 51, was convicted in the suffocation death of Trevor Horn and of shooting to death the boy's mother, Mildred Horn, and his nurse, Janice Roberts Saunders.
Prosecutors said Perry, who came from Detroit, acted on behalf of the boy's father, whose intent was to inherit the boy's trust fund, which contained $1.7 million from a medical malpractice settlement.
Lawrence Horn's conviction was not affected by the appeals court ruling. He is serving three life sentences.
The appeals court ruling revolved around a 22-second taped conversation found on a microcassette in Horn's California home, which prosecutors alleged was a snippet of conversation between Perry and Horn.
For prosecutors, it was the only evidence of contact between the two men, who had denied ever speaking to each other.
The defense, however, contended that the tape was inadmissible because it was made without Perry's consent. Under Maryland law, taping a conversation is unlawful if it is done without the consent of both parties.
The conversation is brief and cryptic. A voice identified by witnesses as that of Perry says: "I could take a picture of him . . . but I couldn't. . . . I wasn't able to do the others, didn't, I didn't want to go, uh, frontwise."
In arguing their right to use the tape, prosecutors contended that Maryland's law didn't necessarily apply, because the tape was made in California.
Additionally, they argued that if Maryland law did apply, Horn had not taped the conversation intentionally.
Further, they asserted, Maryland law did not protect Perry from his words being taken down because he and Horn were "acting in consort" as co-conspirators. Prosecutors have also argued that there was much evidence to convict Perry even without the tape.
But Judge Alan M. Wilner, writing the majority opinion, said that prior court rulings held that tapes inadmissible under Maryland law cannot be used as evidence, even if such tapes were made in a manner that was legal elsewhere.
Even if the taping could be proved unintentional, Wilner added, Maryland law prohibits intercepting wire communications. He said Perry may still suppress the tape even if it was made by a co-conspirator. The majority also included Judges Robert M. Bell, John C. Eldridge and Irma S. Raker.
Perry's trial attorneys asked for exclusion of the tape only after the jury had heard it. The trial judge said it was then too late to consider leaving it out. Perry's appeal attorneys, William Jordan Temple and Rene Dupuy, called that ruling wrong.
Dissenting Judge Dale R. Cathell, who said Perry was "getting away with murder," called the majority ruling extreme and "a great injustice." Judges Lawrence F. Rodowsky and Robert L. Karwacki also dissented.
Cathell said Maryland's high court should follow most other states in applying the wiretap law of the state where the taping occurred. Lawmakers may have intended to protect the privacy of Maryland residents, but the only Maryland residents in the case "have been murdered," he said.
Maryland's strict wiretap law has won national attention through state efforts to prosecute Linda R. Tripp, who taped Monica S. Lewinsky in conversations central to the investigation of President Clinton [Story on Page B1.]
In May, the publisher of a "hit man" manual agreed to settle a civil lawsuit brought by relatives of those killed. They claimed Perry relied on the book.
Staff writer Phuong Ly contributed to this report.