High Court Bars Use of Murder Plot Tape : Law: U.S. justices let stand a ruling that an illegally recorded conversation is not admissible in a California trial, even if it reveals an apparent conspiracy.

In a setback for California prosecutors, the U.S. Supreme Court let stand a ruling that prohibits the use of illegally recorded telephone conversations in a criminal trial, even if they reveal a murder plot.

The high court action means that Santa Clara County prosecutors will have to rely on circumstantial evidence to try to prove that Brenda Otto and her lover, Marvin Mark, conspired to kill her husband.

The two were convicted in the 1986 murder of Joe Otto after jurors listened to a phone conversation in which they seemed to be discussing when and how to kill the 61-year-old husband. Late on a Saturday evening, Mark is heard saying “everything was wrong” because of “the party across the street.” He adds: “I got a better plan.”

A few weeks earlier, Otto had suspected that his new wife was plotting against him, and he installed a device to tape her phone calls. Three days after the call between his wife and Mark was recorded, Otto was found bludgeoned to death in the family room.

In July, the state Supreme Court threw out the murder convictions and ruled unanimously that illegal wiretaps may not be used in any trial, even when the conversations were recorded by private persons rather than government agents.

The federal Omnibus Crime Control Act of 1968 prohibits persons who are not party to a conversation from secretly recording it. Moreover, it says, an illegally intercepted phone conversation may not “be received in evidence in any trial, hearing or other proceeding.”

“A plain reading of the act,” wrote state Justice Armand Arabian, “leads to the inescapable conclusion that defendants’ conversations were unlawfully recorded and should not have been received in evidence.”

In an appeal to the high court, state Atty. Gen. Dan Lungren said that the 1968 law was intended to protect privacy, not murderers, and he disputed the “absolute” bar on the use of privately recorded conversations. He called it a “triumph for murderers.”

Without comment, the justices rejected the appeal.

Joyce Allegro, a deputy district attorney for Santa Clara County, said a retrial for Brenda Otto and Mark is set for Jan. 11.

“We have a lot of circumstantial evidence and we think the only reasonable interpretation is that there was a conspiracy to kill Joe,” she said. “She had told everyone that the only reason she married the guy was for his money.”

John Aaron, a county public defender, said he is “confident of victory in the retrial.” Otto has said that two burglars broke into the home and killed her husband.

In other actions, the court:

* Refused to review a judge’s ruling that the state bears some financial responsibility for the Stringfellow acid pits in Riverside County. More than 4,000 residents filed suit for nearly $1 billion in damages. Applying state law, a judge said the state was negligent in approving the hazardous waste dump.

* Agreed to decide whether a drug kingpin can escape prosecution because the police blundered in arresting a low-level courier. The U.S. appeals court in San Francisco said that prosecutors may not use as evidence 560 pounds of cocaine owned by a drug kingpin because the police had no reason to stop the car in which it was hidden. But Bush Administration lawyers maintained that the Constitution protects only the privacy of the driver, not the possession of a co-conspirator.