by Greg Sisk
For decades, legal commentators have severely criticized the marital privilege rules, especially that strain of it that goes beyond protecting intimate spousal communications to allow one spouse to refuse to testify against another. Legal scholar and Texas law school Dean Charles Tilford McCormick, writing in the 1950s, characterized the broader adverse testimonial privilege as an “archaic survival of a mystical religious dogma.” More recently, others have argued that granting evidentiary protections unfairly elevates married couples to a special status, discriminates against family arrangements not recognized by the state, and imposes burdens on others who are unable to secure the same evidence from a married witness as from an unmarried witness.
Nonetheless, the federal courts and many state courts continue to recognize the adverse testimonial privilege, and every jurisdiction continues to afford substantial protection to confidential spousal communications.
For every evidentiary privilege, there are exceptions. From the time of its inception with the English common-law courts many centuries ago, the marital privilege has not prevented a wife from being a witness against a husband for a wrong committed by the husband against the wife.
As Wigmore wrote 150 years ago in his characteristically colorful terms, “if the promotion of marital peace, and the apprehension of marital dissension, are the ultimate ground of the privilege, it is an overgenerous assumption that the wife who has been beaten, poisoned, or deserted, is still on such terms of delicate good feeling with her spouse that her testimony must not be enforced lest the iridescent halo of peace be dispelled by the breath of disparaging testimony.”
• • •
Only a few minutes after Bill joined her at her law school office, the lawyer, Andrew Dietrich, arrived. They explained that they wanted him not only to represent Bill to defend against any criminal investigation or charge but also to represent Candace in resisting the subpoena to testify. They insisted that they were undivided partners and wanted to present themselves to the world in that way. Selecting a single lawyer to provide joint representation would further that purpose and bearing of alliance.
“Well,” responded Dietrich with slow deliberation, “I have to advise against this course of action. I do understand that you two see yourselves as in this predicament together and for that reason want to have the same legal counsel. But others might perceive a conflict of interest here. And, by others, I have to include the judge who will hear this matter and who could refuse to allow me to proceed as counsel for both of you.”
“There are at least two reasons we want to have the same lawyer,” interjected Candace, taking charge of the conversation. “First, yes, we do want to maintain a united front, but not only as a message to the rest of the world that we unequivocally reject any suggestion that Bill had anything to do with this event. We also want joint legal representation so we can work through this together, fully participating as a married couple to defend against these outrageous accusations.
“And, second, we are not a wealthy couple. Mr. Dietrich, you come very well recommended by Dean Ordway, and we know that your legal services will not come cheaply. We’ve already taken out an equity loan on our house in Eden Prairie, which we are prepared to pay into your trust fund to cover your fees. But we cannot afford to hire a second attorney to help me resist the United States Attorney’s effort to force me to testify.”
Andrew Dietrich was a man in his mid-fifties. He was average in almost every way. He was of average height and average weight (for a man in middle age). He looked so average that, if he were a criminal instead of a criminal lawyer, witnesses would have great difficulty picking him out of a lineup. He wore his suits off the rack, purchased whenever there was a two-for-one sale at the Men’s Wearhouse in the U.S. Bancorp Center on Nicollet Avenue in downtown Minneapolis.
But when it came to criminal procedure, Andrew Dietrich was anything but average. No criminal defense lawyer in the state could match Dietrich in his mastery of the sometimes Byzantine amalgamation of federal and state rules governing the procedures of a criminal investigation and prosecution. No one possessed a finer map for successful travel through the confusing maze of federal and state criminal procedures. As Dietrich often would say to young lawyers who asked for the key to his success as a criminal defense lawyer: “Read the court rules. If I know the rules of the game, and you don’t, I’m going to beat you every time.”
“I do hear what you are saying,” Dietrich responded to Candace, “and I might be willing to go along, with some precautions and qualifications. But I am ethically obliged, as you well know Professor Klein, to make sure you do understand there is a potential conflict of interest between the two of you, if not now then at some point in the future.
“Right now your interest, Professor Klein, is to avoid testifying. That does fit neatly with Mr. Klein’s interests as well in preventing intrusion by the prosecutors and grand jury into his life. But if you should change your mind and wish to testify—or if a judge should order you to testify on penalty of being held in contempt—then your personal interests may diverge from Mr. Klein. And even the mere possibility that this could occur might cause a judge to rule that this joint arrangement may not continue.”
Dietrich paused and looked again through the grand jury subpoena that Candace had handed to him when he arrived for the meeting in her law school office.
“If I agree to be retained by you, Professor Klein, as well as by Mr. Klein, my first step will be to file a motion to quash the subpoena to testify to the grand jury on the grounds of marital privilege. There is a legitimate basis for a joint legal representation on this particular matter. Each of you does possess one or another aspect of the marital privilege.
“Professor Klein, as you well know, the adverse testimonial privilege belongs to you. You are entitled to raise the privilege to refuse to testify against your husband.
“Mr. Klein, both you and your wife own the marital communication privilege and are entitled to object to the other being asked to testify as to what you said in the privacy of the marital relationship.”
Candace nodded. “That’s my thinking as well. I’ve written about the marital privilege in my scholarly work.” She handed a copy of the evidence book she had co-authored to Dietrich. He looked through it briefly and then set it next to his brief-case to take with him.
“Now once the United States Attorney learns I’ve filed a motion on behalf of both of you objecting to the grand jury subpoena to Professor Klein,” warned Dietrich, “I would anticipate an immediate response—not only to oppose the motion to quash the subpoena but to disqualify me from representing more than one of you.”
Dietrich paused. “But that’s probably a good thing . . . indeed, now that I think about it, it’s almost perfect. After all, at some point in this matter, if Mr. Klein is charged with a federal explosives crime, the judge assigned to the case would be obliged under federal criminal procedure rules to investigate whether there is a conflict of interest. So there’s no avoiding the conflict issue. The issue of my joint representation of both of you will inevitably demand an evaluation by the judge.
“But by provoking the U.S. Attorney to seek immediate disqualification in direct response to our motion to quash the grand jury subpoena to Professor Klein, we’ll get a ruling from the judge earlier rather than later. And that’s good, because it then will let us know whether we can proceed this way before we’re too far down the line.
“Moreover, even as early as a ruling by the judge could come, it won’t be rendered until after we’ve already made the case for the marital privilege applying here to protect Professor Klein from being forced to testify against her own husband. So even should I then be disqualified from representing you, Professor Klein, the lion’s share of the legal work on your behalf will already have been accomplished.”
Candace and Bill looked at each other and both nodded to Dietrich. “Tha
t sounds ingenious, Mr. Dietrich,” said Candace.
Dietrich smiled. “Thank you. And if we’re going to go forward, I must insist that you call me ‘Andy.’”
“Very well, Andy,” agreed Candace. “And we go by Candace and Bill. So, it sounds almost like we can’t lose then.”
Dietrich immediately tamped down overly high expectations. “Well, if I don’t say so myself, it is a pretty good plan. But it doesn’t guarantee a positive result. The U.S. Attorney almost certainly will argue that the marital privilege is overcome here by the spousal crime exception. And the law is probably on the government’s side.”
Candace broke in: “In my chapter in that book I handed to you, I briefly touched on the exceptions to the marital privilege. And since this morning, I’ve conducted a little more research myself into the case-law. I know it’s far from a sure thing that I’ll be able to use the privilege to avoid testifying here. But in recent years, few courts have applied that exception to a spouse not volunteering to testify. And I’ve found only a couple of reported court decisions in which a wife has been held in contempt of court for refusing to testify against her husband in a domestic violence case. And this is no domestic violence case.”
“I’m sure that I’ll benefit from your help on the legal briefing, given your own expertise on the law of evidence,” said Dietrich. “But I still think it’s an uphill climb to convince a court that the spousal crime exception doesn’t cover a situation in which the prosecution theory is going to be that the husband tried to kill his wife. And, courts or state legislatures increasingly impose a child abuse exception to marital privilege as well.”
Candace’s voice trembled, “But this isn’t a child abuse case. No one is even suggesting that what happened . . . to J.D. was anything other than an accident.”
“I understand that, Candace,” said Dietrich reassuringly. “But we have to assume the U.S. Attorney will make every plausible argument —and perhaps some that are not so plausible.
“And, of course, there is also the risk, the considerable risk, that I will be disqualified from being a lawyer for both of you. So the remaining question I must raise now with you is also important. If I am disqualified, will I be disqualified from representing either of you and be out of the case altogether? Or would I be able to continue representing you, Bill, even if I am prevented from continuing to represent you, Candace?”
“Isn’t there something we could do, some way of managing things so that if the worst happens, and you are disqualified, you would only be prevented from continuing as my lawyer but could still be Bill’s lawyer?” asked Candace.
“I think so. We should anticipate this problem in our response to the motion for disqualification that almost surely will come from the United States Attorney. My suggestion is this: I will represent to the court that we have carefully restricted my representation of Bill to this point so as not to inquire about any matters known only to the two of you. As would be my initial step in a client interview anyway, I will ask you two only what you understand law enforcement to know about this case, that is, what evidence do they have. I’ll ask you both to refrain from sharing any confidences with me for now, either about what you have discussed in the privacy of the marital relationship or what either of you knows individually.
“Then if I am disqualified from representing Candace, I should be able to continue representing Bill. I’ll have learned nothing from Candace—and Bill will have shared nothing in Candace’s presence when meeting with me—that could be adverse in any later proceeding.”
Before departing from Candace’s office, Dietrich made arrangements with Bill and Candace to sign a retention agreement hiring him as their lawyer and to accept an advance payment for his expected legal fees. Dietrich shook hands with both, said he would begin work on the court papers objecting to the subpoena immediately (with Candace’s valuable assistance), and returned to his office.
Candace gave Bill an encouraging kiss on the cheek and sent him back to the condominium. Long days of work lay ahead for her, but at least she was able to bring to bear her expertise and experience to fight this next battle.
• • •
One of Ed Burton’s fellow officers at the Eden Prairie police department was a daily communicant at St. Gregory’s Catholic Church. He’d often told Burton that, especially for a cop, there was no better way to start the day than with prayer. He had mentioned to Burton that Candace Klein had begun coming to morning Mass at St. Gregory’s a few weeks ago after her son had been killed.
Burton knew it was a sketchy thing to do, waiting for her just outside the door at St. Gregory’s this morning. He felt uncomfortable ambushing her like this, especially at a holy place of worship. But he wanted to catch her away from her new home in that condominium in Minneapolis. And he wanted to talk with her privately.
The door opened and several people, including the priest, came out on to the steps. The priest spoke briefly with each one as they passed out into the world. The last person in line was Candace Klein. Burton heard the priest tell her to remember that Easter always comes after Good Friday. Burton wasn’t sure what that meant, but she seemed to take some comfort in those words.
“Mrs. Klein,” said Burton as he stepped forward.
“Lieutenant Burton,” she replied coldly. “You shouldn’t be here. You shouldn’t be talking to me.”
“I’m sorry, but I really do think I should speak with you.”
“Actually, you really must not. I hired a lawyer a few days ago, Lieutenant. You undoubtedly know that.”
Candace unconsciously shifted into law professor mode. “It is highly inappropriate for you to be contacting me outside the presence of my lawyer. Under the ethics rules for lawyers, there is a ‘no-contact’ rule that prohibits one lawyer from interfering with another person’s relationship with her lawyer by contacting that person directly. That ‘no-contact’ rule guards against inadvertent disclosure of confidential information or a damaging admission being taken from a client whose lawyer is not present. In fact, under the Minnesota Rules of Professional Conduct, your approach to me counts as serious professional misconduct.”
“Well, I’m not a lawyer,” said Burton. “I’m just a lowly cop. And you’re a lawyer anyway, so what’s the harm?”
“The fact I happen to be a lawyer doesn’t change the fact that I am represented by a lawyer, so the ‘no-contact’ rule clearly applies. And the fact that you are not a lawyer is also no excuse. You’re acting under the supervision of a lawyer, so you’re bound by the same ethical responsibility. United States Attorney Sherburne should know that.”
“He’s not my boss, Mrs. Klein.”
“And you’re not under federal supervision in this investigation?”
“Well . . .” wavered Burton.
“I thought so. Whether or not Mr. Sherburne is your immediate superior, this is a federal investigation, and thus you are acting as an agent of the United States Attorney’s office today.”
Candace paused for a moment, looked carefully at Burton, and then continued more sympathetically, “I suppose it’s understandable you would make this mistake. As I explain to law students when teaching professional responsibility, federal law enforcement and state law enforcement are often in different positions with respect to the ‘no-contact’ rule.”
She continued to speak as though she were back at the podium in front of a law school classroom: “At the federal level, investigation of crime generally occurs under the auspices of the Department of Justice, meaning federal law enforcement personnel ordinarily are subject to direct control and supervision by lawyers. Thus, FBI agents—and even ATF agents although part of the Treasury Department—tend to be directly subject to lawyer professional standards. By contrast, state and county prosecutors usually have little or no supervisory control over the police who investigate crimes. That doesn’t mean local polic
e can do anything, of course, but they are not directly subject to professional ethics rules. But that’s not true in your case, as you’re acting on behalf of a federal investigation.”
Hoping to alleviate the tense atmosphere, Burton affected a jocular tone as he said, “Thank you for enlightening me, professor!”
Candace did not accept the invitation, said nothing in reply, and remained formal in her demeanor.
Burton then tried a different tack. “Sorry, then,” he said. “The truth is that I think I’m doing you a favor this morning.”
“Oh,” said Candace skeptically. “And how is getting me alone to talk without my lawyer present doing me any favor?”
“I came to tell you your husband is about to be arrested.”
“And how is arresting my husband doing me a favor?” she said, plainly now annoyed.
“No, no, you’re misunderstanding me,” insisted Burton. “Your husband being arrested . . . that’s going to happen. I’m under orders to bring him into custody by the end of the day. The favor that I’m trying to extend is to give you advance notice and then to arrange with you and your husband for me to come to your condominium apartment this morning so that we can do this quietly.
“Not only am I not Sherburne’s puppet, Mrs. Klein, he has no idea I’m approaching you in this way.”
For the first time since Burton had stepped in front of her, Candace’s face softened. “I guess that is a kindness, Lieutenant. Giving us a head’s up, that is. Not arresting him of course.”
She added, “I expect my assuring you that you have the wrong man won’t make any difference?”
“It makes some difference to me, Mrs. Klein,” said Burton graciously. “I’m not saying you’re right, of course, but I know you genuinely believe what you’re saying. No, I can’t countermand my orders to arrest your husband. And the evidence certainly is piling up against him. But I don’t see any reason to make life more difficult for you . . . or him . . . by scheduling the arrest so that the local news media gets to broadcast the ‘perp walk’ into the jail.”
