Marital Privilege

by Greg Sisk

  “I’m not so sure,” said Burton. “First, we can’t really tie the TNT to his company. We know only that it may have come from there, among many other possible sources. Second, I’ve got to tell you, I was there when Candace Klein escaped from Pirkle at the house and was reunited with her husband in the back seat of the squad car. Bill Klein was genuinely relieved.”

  “Or he was putting on an act for you, officer,” retorted Sherburne. He had come to a decision. “If you’re not sure it was Klein, then I think it’s time to make sure. Pull out all the stops. We’ve got more than enough on Klein to get any search warrants we need, to subpoena financial records, to turn his life inside-out. He’s your target. I want this tied-up, gentlemen.”

  After Sherburne dismissed them from his office, Burton talked with Kramer as they walked out of the building. “I may be wrong, and I have been wrong before,” said Burton. “It just doesn’t feel to me like it would be Bill Klein.”

  “You’ve admitted yourself, Ed, that there are some strange coincidences that link Klein to explosives, to the car, and on and on,” observed Kramer. “I don’t like how Sherburne is fast-tracking this either. But looking more closely at Klein now is the logical next step.”

  “Yeah, I suppose you’re right,” agreed Burton. “And I don’t think Klein has been entirely forthcoming. I don’t have the sense he has lied to me, but I’m not sure he’s telling me everything. And, for that matter, Candace Klein may know more than she’s saying as well.”

  • • •

  Moving boxes—some still taped shut and others ripped open but not fully unpacked—littered the main living area of the condominium unit. While the furniture was mostly in place, other belongings were strewn throughout the rooms—on tables, on beds, on the floor. The place had yet to feel like home to Candace. That’ll come, she said to herself. It’ll take time. She couldn’t fairly judge the place until they’d fully unpacked and put everything in its proper place.

  Now the unpacking would have to wait. Lieutenant Ed Burton had called to ask if he and his partner, Melissa Garth, could come over to ask some more questions. And they’d revealed to Candace and Bill that Olin Pirkle had a solid alibi for the night in question.

  “So it isn’t over . . . as if it ever can be,” sighed Candace.

  “You know what this means, Candy,” said Bill. “It means they’re thinking it was me.”

  “Then you’ve got to tell them everything, Bill. This is a murder investigation. The fact you could get into trouble with the ATF for not reporting the missing dynamite hardly compares with being suspected of murder. You’ve got to be forthright with them or it could get worse.”

  Bill’s voice became tense, a modulation that Candace hadn’t heard in several days. “I told you, it’s not really missing. And, it’s not dynamite, but TNT. I was pretty sure it was detonated at the site, and I just forgot to check it off on the log. We have to keep this between us. No good will come from sharing this . . . this paperwork mistake with Burton.”

  “What about Pirkle?” asked Candace. “You said he would remember you didn’t check off the TNT on the log until long after you had left the construction site and while you were in the truck riding back to the warehouse.”

  “What I said was that he might be prompted to remember something, that he might recall something hadn’t looked quite right, if someone knew what questions to ask,” responded Bill. “From what I can gather, Pirkle remains in pretty bad shape. He’s not going to be questioned in any detail, now that he’s no longer a suspect. And I doubt he’ll be putting two and two together any time soon, if ever.”

  • • •

  Lieutenant Ed Burton and officer Melissa Garth knocked on the door to the condominium unit. Candace Klein opened the door, invited them in, apologized for the mess, and suggested they sit down at the kitchen table. Bill Klein was already seated there. Garth and Candace took seats as well. Burton remained on his feet.

  “As part of our investigation, we have to look at all possibilities, please understand,” said Burton. Candace nodded. Bill sat stony-faced. “In our search, we discovered there is a million dollar life insurance policy on your life, Mrs. Klein. And Mr. Klein is the named beneficiary.”

  Bill revolved in his chair and shot an odd look at Candace.

  “That’s right,” answered Candace. “But I’m the one who took out the policy, and Bill knows nothing about it. You see, I’m a good mark for any insurance salesman. I’m the classic risk-averse person. It drives Bill nuts how I’m always suggesting getting this or that type of insurance policy for this or that kind of risk. At one point, I even had an earthquake rider on our homeowners policy.”

  “But we don’t get earthquakes in Minnesota,” submitted Garth.

  “Not yet. But there’s always a first time!” responded Candace. “Oh, I know I’m being a little silly. But the earthquake insurance rider didn’t cost that much at first, so I thought, why not. Then the price went up, and Bill talked me out of continuing it.

  “Anyway, I’ve made sure that we have homeowner’s and car insurance of course. But we also have a long-term disability policy, a personal liability umbrella, and accidental death and dismemberment coverage. I have my own malpractice insurance policy for any pro bono legal work or consulting I do. And both Bill and I have some minimal life insurance coverage through our jobs.

  “Then, a couple of years ago, my father suggested . . .” Candace hesitated, glanced nervously over at Bill, and then returned her eyes to Burton. “My father suggested that, since I was earning a significant income that . . .”

  Bill interrupted, “You mean your father thought you were the primary bread-winner for the family, now, with me collecting only the few dollars he doles out for me as a favor at the construction company.”

  Candace began to twist her necklace in her right hand. “He just thought it was a good idea to provide for the worst case scenario, for J.D.’s future, if something should happen to me. That’s all. And he even paid for it.”

  “That figures,” whined Bill.

  “Well, as you can see,” Candace said with a chuckle, trying to lighten the mood, “Bill would never have gone along. So I did it on my own. The policy is a term life policy through my membership as a lawyer in the American Bar Association. For a million dollars in coverage, it does cost about fifteen-hundred dollars a year, which is a little steep for us at this point in our lives. Since it was my father’s idea, I pay the premium from our checking account, and my father reimburses me.”

  “So you see,” Candace concluded, “there’s nothing suspicious about this policy. It was my policy. Bill knew nothing at all about it.” Turning toward her husband, she said, “Sorry, Bill. But you know me.”

  • • •

  “What do you think, boss?” asked Garth as they walked out of the condominium building.

  “I believe her,” said Burton. “The life insurance policy is in her name, and it was purchased through her membership as a lawyer in the American Bar Association. Bill Klein couldn’t have obtained a policy through that organization. So I guess that eliminates one possible motive.”

  “Yes,” agreed Garth, “he couldn’t have killed her for the life insurance proceeds if he didn’t even know about the policy on her life.”

  “I doubt everyone will see it that way, though. The only thing that Sherburne is likely to hear is that there is a million dollar policy on the life of the woman nearly killed in the car bombing,” predicted Burton. “I’m guessing he won’t give any benefit of the doubt to Klein.

  “If I were Bill Klein, I think I’d get myself a lawyer.”

  • • •

  Back in the condo, Bill turned to Candace and said, “Well, I’d better get a lawyer. They aren’t just looking at all possibilities, like Burton pretended. If they’re going through our financial records in that detail and spin
ning theories of why I would . . . why I would do something so horrible, so unthinkable . . . that means they’re focusing the investigation on me now.”

  Candace agreed but tried to frame the directive more inclusively for both of them, “Yes, we’d better get a lawyer.”

  Chapter 10

  [EIGHT WEEKS AFTER THE TRAGEDY]

  The peace of her family’s suburban home had been twice shattered, first by a bomb that stole the life of her child and then by an invader who destroyed any lingering semblance of residential security. Abandoning that defiled domicile, she had retreated to a condominium apartment in downtown Minneapolis. And the tribulation had followed her there, not only because there could be no sequestering of a mother from her bereavement, but also because police investigators had interrupted their temporary repose to cast suspicion on her husband.

  Her remaining place of refuge—not from grief but from interlopers—had been her office at the University of St. Thomas. Without so intending, because the room had been decorated long before that awful day in May, Candace’s work space now served as a schizophrenic shrine to both her professional triumphs and her personal tragedies.

  Attached to the walls of the office were frames exhibiting her law school diploma, law school awards, and state and federal bar admission certificates, along with portraits from her clerkship with Judge Payton Bowers and her days in law practice. Her bookshelves contained dozens of legal texts, including prominent displays of her own published journal articles.

  On the deep wooden desk and attached credenza that encircled her office chair, she had distributed various family knickknacks. A central place at the front of the desk had been reserved for school art projects created by James Daniel.

  Arrayed along the window shelf beneath the office’s large windows were a series of framed photo montages Candace had created each year to send with Christmas cards. The annual compilations illustrated the family’s activities during the year, including such events as the first day of school, birthday parties, and family vacations.

  Last year’s medley of images depicted J.D. in his Catholic school uniform, a dinosaur-shaped cake at his ninth birthday party, and Bill, Candace, and J.D. smiling as they posed outside the Split Rock Lighthouse on the North Shore of Lake Superior near Duluth. This had become the final episode in the series. The family chronicle in pictures had come to a premature end.

  Now Candace’s last sanctuary had been breached by the trespassing heralds of calamity.

  Earlier this morning, as she sat before her computer screen reading yet another set of sympathetic emails from friends and colleagues, past and present, a knock had come at her office door. When she opened it, she had encountered a young man who identified himself as a process-server and handed her an envelope.

  Inside had been a subpoena issued by the United States Attorney’s Office, which invoked the authority of the United States District Court and ordered her to appear and testify before the grand jury empaneled to investigate the car bombing. While the specific subject on which she would be questioned before the grand jury was not revealed in the subpoena, she had little doubt that federal prosecutors planned to intrude into the most intimate corners of her life. Given that Bill plainly had become a target of the investigation, prosecutors presumably would ask her about confidential marital conversations and then seek to turn her answers against her husband.

  On the recommendation of Dean Colleen Ordway, a well-regarded criminal defense attorney had been contacted. He had kindly agreed to meet with Candace and Bill in her law school office that afternoon.

  Now, in preparation for the meeting, she decided to refresh her own understanding of the legal issues raised by the subpoena. As it ­happened, a couple of years previously, she had been one of a group of young law professors who had co-authored a text book for law students to provide an overview of critical concepts in the law of evidence. Fortuitously—or fatefully in retrospect—she had been assigned to write a chapter summarizing several of the evidentiary privileges that offered a protection to those being asked to testify or provide evidence in court.

  Candace pulled down the law book from her shelf and skimmed through the pages of text she had written on the topic of the “marital privilege”:

  • • •

  “Marital Privilege” has an august sound, a distinctly legalistic flavor. And, indeed, the marital privilege is a venerable legal doctrine, dating back hundreds of years in Anglo-American legal history. But the basic nature of the marital privilege is easily understood and remains grounded in common societal conventions. As with other evidentiary privileges recognized in American courts, the marital privilege reflects our society’s considered judgment that certain relationships serve especially valuable purposes in human affairs so that we should foster trust within those relationships by ensuring confidentiality.

  We encourage people to seek counsel from a lawyer and be secure in the knowledge that their confidences will be safeguarded. We do this not only because the lawyer must be well-informed to represent the client effectively and fairly, but also so that the lawyer may help the client follow the law, which benefits the public as well. If the lawyer is to be able to counsel the client to do the right thing, legally and morally, the lawyer must have full access to information from the client—and the free flow of information depends on the assurance of confidentiality. Thus, the “attorney-client privilege” prevents intrusion upon those confidences by holding that confidential communications are immune from legal process.

  We encourage people to seek medical care and to fully inform medical practitioners about their symptoms and injuries, along with how the condition arose or the injuries were contracted, so that the most ­accurate diagnoses can be reached and the most effective remedies can be prescribed. If the patient feared that sensitive or embarrassing revelations would be betrayed to others, the patient might withhold crucial information, leaving the physician unable to competently perform the healing arts. Thus, the “physician-patient privilege,” today extends to other licensed medical professionals as well.

  We admire those who admit their transgressions, desire reconciliation from wrongdoing, and seek to reform their lives by sharing their innermost thoughts with a spiritual leader. We respect the right of privacy in such religious exchanges and the therapeutic value of spiritual counseling. We also recognize that to permit lawyers and judges to invade the sanctity of the confessional would be a most egregious violation of the freedom of religion. So the “clergy-penitent privilege,” expanding beyond its origin with the rite of confession in the Roman Catholic Church, now precludes examination in court of any member of the clergy or other minister of religion about communications made by a person seeking religious advice or comfort.

  So too, society has long valued marriage and protected the intimacy of spousal partners. The law of evidentiary privilege has formed to secure the harmony of the marital partners and to preclude undue invasions into marital privacy. Nearly three quarters of a century ago, the Minnesota Supreme Court said: “The family is the basic unit of society as the cell is of the body. To cause strife between the parties to a marriage contract is to undermine this institution and thus to weaken the entire social structure. Courts and legislatures have recognized the burden which antagonistic interests impose upon the intimate relations of husband and wife and the harm to the public which results from marital discord and have, as a general rule, refused for this reason to permit one spouse to testify against the other without the latter’s consent.”

  Over time, what was called the “marital privilege” has become two overlapping but different evidentiary rules.

  The first is now called the “adverse testimonial privilege,” which permits one spouse to decline to be called to testify in court against the other spouse. This privilege extends beyond statements made by one spouse to the other to include things that the spouse saw or learned from other
sources.

  Nineteenth-century jurist John Henry Wigmore wrote that “there is a natural repugnance in every fair-minded person to compelling a wife or husband to be the means of the other’s condemnation,” although he warned that an overly broad privilege was an obstruction to finding the truth in court. In the classic 1980 decision of Trammel v. United States, the United States Supreme Court stated the “modern justification” for the testimonial privilege may be found in “its perceived role in fostering the harmony and sanctity of the marriage relationship.”

  The Supreme Court has held that this particular privilege belongs to the spouse called to testify. The spouse may choose to waive the privilege and testify in court, even over the objection of the other spouse. As the Court explained, “when one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve.”

  The second is the “marital communications privilege,” which may be raised by either spouse to prevent the other from disclosing confidential statements made during the marriage. In the 1839 decision of Stein v. Bowman, the United States Supreme Court described this rule “as essential to the enjoyment of that confidence which should subsist between those who are connected by the nearest and dearest relations of life. To break down or impair the great principles which protect the sanctities of husband and wife, would be to destroy the best solace of human existence.”

  Legal scholars Charles Alan Wright and Kenneth Graham identified the central question at the core of all privileges, including the marital communications privilege, as asking “what kind of people are we who empower courts in our name to compel parents, friends, and lovers to become informants on those who have trusted in them?”