Marital Privilege

by Greg Sisk

  “So will you be taking Bill to the federal lock-up on federal explosives charges? Our lawyer tells me that the United States Marshal has a contract with the county jail in Elk River to detain federal prisoners. Isn’t that about a forty-five-minute drive from here?”

  “No,” replied Burton, thinking he had been rather startled by the directions given to him as well. In fact, he had been surprised that he was asked to make the arrest at all, rather than someone from ATF. “I’ve been directed to arrest Mr. Klein on a state charge of homicide and transport him to the Hennepin County jail here in Minneapolis.”

  Candace looked quizzical, but said nothing.

  “So, Mrs. Klein, let me escort you back to your condominium building in Minneapolis. My partner, Melissa Garth, is already waiting in the lobby in your building. I’ll let you and your husband have a few minutes, under our supervision of course, to gather yourselves and contact your lawyer. From there we’ll go over to the Hennepin County jail for booking, with an initial appearance in county district court scheduled for tomorrow.

  “I won’t pretend this is going to be enjoyable for either of you. But I do promise that, if you’ll cooperate with me in taking him into custody this morning, there will be no media circus to navigate outside the jail.”

  Lieutenant Burton was true to his word.

  There was no news reporter or photographer.

  There was no crowd of gawkers.

  There was no public embarrassment (until Bill’s mug shot was published a few days later in the Minneapolis Star Tribune).

  And now there was no Bill.

  He remained in custody in the Hennepin County jail.

  Candace was alone, again.

  Chapter 11

  [TEN WEEKS AFTER THE TRAGEDY]

  During her years in law school in the 1980s and then practicing law in the 1990s, Judge Sally Williamson heard frequently about the struggles women in the prior generation had faced to be recognized as full-fledged partners in the legal profession. To shield against the condescending attitudes they had encountered and to exhibit the seriousness of purpose necessary to secure their rightful position at the bar, women lawyers of that feminist era sometimes developed a sharper edge in personality. While respectful and appreciative of her predecessors’ trailblazing battle for equality, Williamson nonetheless was glad she had come of age in a later period. Sober formality or a pugnacious manner simply wasn’t her style.

  It wasn’t that Judge Williamson was soft. Any lawyer who entered her courtroom and tried to roll over her would quickly learn as much. When merited, Williamson could be pointed and direct in courtroom demeanor. Rather, Williamson was comfortable in her own skin, happy to be alive, energized by the people around her, and reluctant to put up a guard that kept people at arm’s length.

  When a white male prosecutor came into her courtroom for the first time, she sometimes could sense a discomfort and observe a stiffness in bearing as that lawyer looked around to see that nearly everyone else in the courtroom—from the judge on the bench to the law clerk at her side and not infrequently on through to the defense attorney and the defendant at the other counsel table—was dark of complexion. She well knew what it was like to be the only person of a different color invited to the party.

  But far from believing that turn-about was fair play, Judge Williamson insisted on making everyone in the courtroom feel that they belonged there, including a white male prosecutor unaccustomed to being in an environment in which African-Americans preponderated. Indeed, she insisted on making the courtroom a place, if not of welcome at least not of intimidation, for the criminal defendant as well, who too often was also a person of color and who belonged in that courtroom in a sadly different way than the other courtroom personnel.

  Williamson couldn’t claim—and never did claim—to fit some too-simple racial narrative of the black girl who rose from poverty in the inner city to the heights of success as a black-robed jurist. Her father had been a middle-rank executive at a suburban bank, and her mother had been a public elementary school teacher, both having graduated from college. She did grow up in a largely black and middle-class neighborhood, being raised in Brooklyn Center, a first-ring suburb just north of Minneapolis.

  All of this was hardly to say that she lacked a balanced sense of racial identity. To be sure, she shrugged away the politically correct assumption by some that she had an obligation to fall in line behind certain self-appointed black leaders on the issues of the day. At the same time, she would acknowledge, she remained most at home in that black Brooklyn Center neighborhood, where she had been raised, where she still lived, and where she shared a kinship of common values, cultural background, and many life experiences with her predominantly African-American neighbors.

  Williamson had been appointed to the United States District Court for the District of Minnesota after serving as a federal public defender and bar leader for many years. She well understood that her selection from the ranks of many other well-qualified applicants was accountable in part to the desire of a Republican President to tout the diversity of his judicial appointments. So what? She was as qualified as any of the other potential picks.

  Other judges on the federal bench had garnered their current posts by virtue of some other “plus factor” that went beyond merits, such as their political activities, social or professional networking, where they’d gone to school, who their parents had been, or how close a friendship they had been able to strike with a United States senator who was in the prime position to make a recommendation to a presidential administration. That one of Williamson’s “plus factors” was the justly perceived need to increase racial diversity on the federal bench was not different in kind and, in fact, a much better reason than many for being plucked from the crowd of eligible candidates. And she was proud as well of her prior career defending those accused of crimes, a perspective not often seen in the courts, where prosecutors were much more likely to secure judicial nominations.

  In any event, Judge Williamson had always believed, the real question wasn’t how you got the opportunity. It was what you did with it once you had it.

  One of the men who would appear before her on this day in early August was the living embodiment of another customary way to rise to high government office. Robby Sherburne was United States Attorney only because of his daddy. He had turned out to be a reasonably competent manager of the office. But he also had carried a stronger whiff of partisan politics into the federal prosecutor’s office than Judge Williamson thought appropriate. That made her frown slightly, an expression not familiar on her face. Her longtime law clerk saw the slight downturn of the judge’s lips, but nobody else in the courtroom was likely to notice.

  From the side door leading into her chambers, Williamson looked out at the courtroom. As everyone waited for the court session to begin, Sherburne was affecting confidence in front of a courtroom gallery full of spectators and news reporters. Most of them had undoubtedly come after being notified by Sherburne’s media operation that he would be appearing in court.

  Still, looking past his swagger, Williamson thought Sherburne looked a little nervous. That wasn’t surprising, she thought. As far as she could recall, this was the very first time that the United States Attorney himself had bothered to darken the door of her courtroom on the tenth floor of the federal courthouse. Sherburne usually sent others into the United States Courthouse in downtown Minneapolis, staying behind in his paneled and well-appointed office to call the shots, like some general sitting in a war room far behind the front lines.

  Yes, Williamson usually went out of her way to make everyone feel they belonged in her courtroom. But she couldn’t drum up her usual enthusiasm to include Robby Sherburne within that embrace.

  Williamson’s law clerk gaveled the courtroom to order. As everyone in the courtroom stood, Judge Williamson entered, sat down behind the bench, and began.
“Everyone may be seated. Counsel, would you please stand up and make an appearance today for the court reporter?”

  Sherburne leapt first to his feet, announcing, “I am Robert Sherburne.” Now experienced federal government counsel generally declare themselves simply as “appearing for the United States.” But Sherburne continued with a pompous flourish, in which he slowly emphasized every vowel of the last four words. “I’m appearing this morning on behalf of the United States of America.”

  Looking over her glasses at Sherburne, Williamson said wryly, “And what a fine client you have, Mr. Sherburne.”

  A lower murmur of chuckles, including a couple of louder guffaws, emanated from the courtroom gallery. Sherburne’s face turned red, and he sat back down.

  As the amused twitter died down, the other lawyer stood as well. “Andrew Dietrich, your honor, appearing on behalf of William and Candace Klein. Mrs. Klein is seated here with me at table.”

  “Where is Mr. Klein this morning?” asked Williamson.

  Not waiting for Dietrich to reply or to be recognized, Sherburne stood again and said, “I believe Mr. Klein is in state custody. He is not presently a party to any federal case, your honor.”

  “He is quite definitely a party to this set of motions, your honor,” retorted Dietrich, “as much as is Mrs. Klein. I will have something more to say later on about Mr. Klein’s incarceration. But he is well-informed of this matter, your honor, and I am ready to proceed, even in his absence.”

  For the next hour, Williamson heard argument on the motion by the United States Attorney to disqualify Dietrich from representing both—or for that matter either—Bill and Candace Klein. The parties then presented opposing arguments on the joint motion by the Kleins to quash the grand jury subpoena to Candace. Williamson occasionally interjected a question to the lawyers, but other than asking each lawyer to stay roughly within time limits of thirty minutes, generally permitted the advocates to make their arguments without substantial interruption.

  Having heard from Robby Sherburne for the United States and Andrew Dietrich for the Kleins, Judge Williamson then ruled directly from the bench:

  “Counsel, I’ve now heard arguments from both sides. I have carefully read the briefs presented by each of you in support and opposition to these motions. And I have devoted considerable time over the past few days in researching and considering these difficult questions. While I plan to issue a written decision in the next few days, I want to announce my rulings immediately for the benefit of the parties in planning their future actions.

  “I will take up the question of disqualification first, as it goes to the threshold question of whether Mr. Dietrich may represent both or either of the Kleins.

  “Because of the substantial liberty interests at stake in a criminal proceeding, and my own painful experiences in the past with criminal defendants being deprived of zealous advocacy because their lawyers were divided in loyalties, I am obliged to satisfy myself that there is no such conflict. Even when, as here, two interested persons claim they are fully in accord and want to be represented by the same lawyer, I must consider the possibility that their interests may eventually diverge. If the lawyer then finds it impossible to juggle responsibilities to both persons, a fair and effective process may be upset. The loser then is not only the clients, but the public interest in fair process.

  “I do understand there is no federal criminal case as yet and, even if one does arise, only one of the Kleins would be a defendant in such a criminal proceeding. Nonetheless, both in anticipation of possible criminal proceedings in federal court and to preserve the integrity and fairness of the present proceedings before me, I must consider the risks of conflict of interest presented here.

  “As a judge, I am no stranger to the awkward problem of a lawyer who is presently or has previously represented an individual who then becomes a witness in the same criminal case in which that lawyer also represents the defendant. When the lawyer represents a person who may become a prosecution witness, the lawyer cannot provide the same zealous representation to a criminal defendant. The lawyer’s duty of loyalty to the criminal defendant demands that he subject an adverse witness to a thorough cross-examination and attempt to undermine the witness’s credibility. But the lawyer’s duty of loyalty to the witness prevents him from attacking or damaging that witness while on the stand. In such a case, the lawyer cannot offer undivided loyalty to both.

  “Moreover, when a criminal proceeding is infected by a defense lawyer’s conflict of interest, there is a strong likelihood that any conviction will be overturned on the ground that the conflict of interest deprived the defendant of the constitutionally protected right to effective assistance of counsel. In such an instance, the case must then be retried with new counsel, thereby delaying justice, wasting the time of the court and the members of jury, and forcing other parties in other cases to wait while a new trial is held. We must guard against such a scenario.”

  Realizing that the judge appeared to be moving against their position, Candace glanced over at Dietrich. Dietrich remained focused on the judge, although the grim look on his face confirmed for Candace that things were not going well.

  Judge Williamson continued: “I have carefully balanced Mrs. Klein’s interest in selecting counsel of her own choosing, Mr. Klein’s interest in the full and undivided loyalty of his legal counsel, and the court’s public interest in protecting the integrity of proceedings and avoiding a complicated problem should a full-blown conflict arise at a later date.

  “Given that the government is aggressively pursuing the prerogative to call Mrs. Klein as a witness in the grand jury investigation of her husband, a matter I will address next, I have no choice but to conclude that Mr. Dietrich must be disqualified from further representation of Mrs. Klein.”

  “Your honor,” interjected Candace Klein, no longer able to sit still and taking to her feet, “since I am about to be deprived of counsel and will have to speak for myself anyway, may I be heard for a moment and ask you to reconsider?”

  “Under the circumstances,” Williamson allowed, “I’ll hear from you for a moment, but remember that I’ve already read the briefing, heard argument on your behalf from Mr. Dietrich, and carefully analyzed the question through my own research and deliberation.”

  “There’s no conflict at all here,” insisted Candace. “My husband is innocent. I believe it. I know it. We’re both on the same page. The United States Attorney is trying to foist a conflict on us that isn’t there and trying to divide us.”

  “I understand your position, Mrs. Klein,” responded William­son. “But I have a responsibility to protect the rights of the person who is or may soon be accused of a crime, sometimes even if that person doesn’t himself understand his rights to be in danger. Mr. Klein’s entitlement to zealous advocacy by a lawyer who has no conflicting obligations to anyone else is in grave danger here.”

  “But there’s no danger at all. Bill and I are a team,” said Candace.

  “That’s what you think today,” said the judge patiently. “But I have to consider the potential for a damaging conflict to arise later. If you should agree to testify for the–”

  “That’s not going to happen,” interrupted Candace. “I will not be a party to the United States Attorney’s attempt to destroy my husband for his political gain.”

  “That’s enough, Mrs. Klein.” Judge Williamson said firmly. “Mr. Dietrich has made the argument, you have added your views, and now I’ve made my decision. Under the circumstances, I’ve been casual about courtroom protocols and allowed you to speak out of turn, but now I need to bring this to a close.”

  “I do understand,” the judge then continued in a more sympathetic vein, “that you feel passionately about your husband’s innocence and that you are resisting any effort by the United States Attorney to obtain your testimony. But I need to take a more dispassionate view an
d appraise the situation in terms of the possibilities that lie before us.

  “If you should change your mind and agree to testify, either voluntarily or after being held in contempt for a refusal to testify—and yes, contempt is a penalty that the court can impose—then your husband’s rights may be dramatically affected by the fact that you and he have had the same attorney.

  “Moreover, should you be held in contempt, and maybe even put in jail, for your refusal to testify, you are entitled to a lawyer who would advise you about all of your options. Mr. Dietrich obviously could not advise you to testify against his own client, so he could not be an independent counselor, serving only you. Whether you think you want that or not, you are entitled to it.”

  Turning then to Dietrich, Williamson said, “While I am granting the government’s motion to disqualify you, Mr. Dietrich, as attorney for Mrs. Klein, I am denying the motion as to Mr. Klein. I accept your explanation that the potential conflict in representing both has not caused harm to Mr. Klein, at least as of this point. And Mrs. Klein’s participation thus far will not be held to have voided the protection of the attorney-client privilege. Moreover, I am reluctant to disturb the relationship that Mr. Klein has developed with Mr. Dietrich at this point.”

  “However,” she warned Dietrich, “if you wish to protect the confidentiality of your discussions about this case with Mr. Klein, those communications need to be held outside of the presence of Mrs. Klein in the future. Matters related to this criminal case are not to be shared with her, if you intend to keep those matters confidential.

  “Given that she may become a witness in a criminal proceeding against her husband, anything you say to her or anything that Mr. Klein tells her about the conversations between you as lawyer and client would fall outside of the attorney-client privilege and could be used against Mr. Klein.