The Maryland judge scheduled to preside over the Anthony Graber trial next month doesn’t appear to see the logic behind the charges.

And he may end up deciding that it is not even worthy of going to trial.

However, he also acknowledged that “we are on unplowed ground” regarding cases of people arrested on wiretapping charges for videotaping police. And it just may take a trial to plow those grounds.

Circuit Judge Emory A. Plitt Jr. expressed skepticism on the case during a hearing Friday, citing a 2,000-year-old Roman quote, “who will watch the watchers,” as he questioned prosecutors on the merits of the case, which is set to go to trial on October 12.

He said he would soon issue a written ruling on whether the case will proceed to trial.

From the Baltimore Sun:

The question before Plitt is whether a conversation between a police officer and a person he stops on the side of the road is private. Maryland’s attorney general issued an opinion in July advising police agencies that people have a right to record officers and that most interactions between the police and the public can not be considered private.

Treem argued that the indictment violates Graber’s constitutional right to free speech, and he said it’s perfectly legal to capture audio recordings in places where people have no expectation of privacy. He said Uhler made a traffic stop “in a public place on a public highway. The police officer was doing his public job.”

Assistant State’s Attorney David W. Ryden countered that “just because you are in a public place doesn’t mean your speech is public.” He noted that police officers should be able to talk to witnesses, even on a public street, without fear that the conversation will be recorded by a bystander.

Ryden said he should be able to have a “whispered chat” with his co-counsel on a park bench outside the courtroom without fear, but Plitt quickly told him the analogy wasn’t credible because the issue with Graber involves an officer conducting official business.

The judge noted that the trooper could use any part of the conversation with Graber in court, hardly making the discussion private. “The only difference here is the camera,” Plitt said. When the prosecutor said police may be concerned, Plitt shot back, “What difference does it make what the police think?”

The Maryland Attorney General as well as a state attorney from another county have also stated that police officers do not have an expectation of privacy while in public.