Marital Privilege

by Greg Sisk

  “So given these unusual circumstances, and given the reasonable expectations of Mr. Klein to this point, I am ruling that all discussions to date remain within the privilege, whether or not Mrs. Klein was present. Even if she later does testify in a federal criminal case, I’ll limit the testimony only to things she knows about her husband or that her husband told her directly. I will exclude any testimony about previous discussions held with Mr. Dietrich.

  “But that ends today.”

  Dietrich turned and looked at Candace with his head tilted to one side. She responded with a slight shake of her head. She was disappointed that she would no longer be part of the legal team jointly with her husband. No, she was much more than disappointed; she was very worried about now being excluded from direct participation in what was to come, or even being allowed to share in the conversation. But, Candace had to admit, Dietrich had warned them that this was a very likely outcome. And, at least, she had had the benefit of Dietrich’s representation in objecting to the grand jury subpoena—a valuable benefit, even though now proved temporary.

  Judge Williamson continued: “My next ruling concerns the motion to quash the subpoena to Mrs. Klein to testify before the grand jury. Now, to begin with, we have an awkward situation here, as I have just ruled that Mr. Dietrich is disqualified on conflict of interest grounds from representing both Mr. and Mrs. Klein. And yet the briefing and argument before me on Mrs. Klein’s behalf were made by Mr. Dietrich.

  “I am inclined to think that is more a problem of formality than substance, however. While there is a potential conflict of interest—the risk that the interests of the Kleins may become adverse in the future—the situation has not yet hardened into adversity. Thus, the briefing presented by Mr. Dietrich well presents the legal positions of Mrs. Klein as well as Mr. Klein.

  “And, Mrs. Klein, knowing of your profession as a legal academic and indeed as a professor on the law of evidence, I suspect that some of the legal arguments I have read in Mr. Dietrich’s briefs reflect your own research and contributions as well.”

  Candace rose again and said, “Yes, your honor, I did work on these legal briefs with Mr. Dietrich. If necessary to say so, I hereby adopt them as my own and ask the court to rule based on the briefing and arguments made.”

  Judge Williamson nodded. “I thought as much. And I appreciate your willingness to go forward immediately.

  “As a general matter, the law has said for centuries that ‘the public has a right to every man’s evidence’ . . . or, in this case, every woman’s evidence as well. One of our basic obligations as citizens in a free society is to testify in court to what we have heard and what we have witnessed. Without the court’s ability to require every person to be a witness, the search for the truth is undermined, the integrity of the judicial process is compromised, and the just resolution of disputes is impaired.

  “Both Mr. Klein and Mrs. Klein have raised objections of marital privilege. Mrs. Klein is raising the adverse testimonial privilege, which permits one spouse to refuse to testify against another spouse. In addition, both Mr. Klein and Mrs. Klein are asserting the marital communications privilege that protects statements made in the privacy of the marital relationship.

  “Under the governing precedents from the United States Supreme Court, the contours of these two marital privileges are not perfectly drawn. The Supreme Court has instructed us that the law of privilege is a matter of common law and thus should continue to evolve with changes in society.

  “Minnesota and most states—and the federal courts—have held that the marital privilege does not apply in the case of a charge that one spouse committed a crime, especially a violent crime, against the other spouse. This is referred to as the ‘spousal crime exception’ or simply the ‘crime exception.’

  “Indeed, the strong societal interest in taking aggressive action against domestic violence has led many states to preclude the invocation of the privilege, even if the spouse who is the alleged victim does not wish to testify. In cases of domestic violence, the deteriorating and dysfunctional relationship between the spouses generally overcomes any concerns about damaging the marriage by requiring the spouse to testify. And to discourage an abusive husband from intimidating his wife into asserting the marital privilege, the law withdraws the privilege and makes the wife subject to the same duty to testify that applies to any witness.”

  When the judge mentioned “domestic violence,” Candace bristled inside and out. Especially having been admonished by the judge for her prior interruption, she wanted to respect the decorum of the courtroom, which also had been instilled into her as part of her professional identity. So, she remained silent and held to her seat.

  Nonetheless, despite her intent to be discrete, Candace’s distress was apparent to onlookers in the courtroom, as she suddenly uncrossed her legs and sat up straight and rigid in her chair, grimaced with a frown, and gathered her eyebrows tightly above eyes that flashed with indignation.

  Whether or not Judge Williamson noticed Candace’s discomfort, her next words sounded directly responsive. “To be sure, this case does not appear to present the typical domestic violence scenario. There is no evidence of any prior violence of any kind in this marital relationship. I have no reason to believe Mrs. Klein’s action in asserting the marital privilege is based on anything other than a sincere belief in her husband’s innocence. I have no evidence before me that Mrs. Klein has been subject to intimidation by her husband or psychological trauma stemming from an ongoing abusive relationship.

  “However, I must also acknowledge I do not have the expertise to evaluate the domestic situation nor has there been any social services investigation. And applying the marital privilege based on the judge’s own evaluation of the likely guilt or innocence of the defendant in a charge that he harmed or attempted to harm his wife would be putting the cart before the horse.

  “Looking to federal cases, the spousal crime exception to marital privilege has been applied in several cases when a spouse is willing to testify against the other spouse. But in each of those recent federal case precedents, the question has been application of the marital privilege to the voluntary testimony of a spouse.

  “In addition, while the Supreme Court has not ruled expressly on the constitutional implications of the marital privilege, the Court has defined a zone of privacy that plainly encompasses the intimate marital relationship. Thus, when the government seeks to intrude into the marital relationship by requiring one spouse to share the confidences made by another spouse, the government is intruding into a private relationship that has some constitutional dimension.”

  Although she remained firmly fixed in her sitting posture, and the scowl on her face softened only slightly, Candace could not help but feel professional pride in hearing these words. She had crafted the section of the written memorandum filed with the court that had raised the constitutional privacy objection to the government’s invasion into her conversations with her husband. She was pleased that Judge Williamson at least had acknowledged the relevance of this legal point.

  “In most cases,” Judge Williamson continued, “a judge can navigate easily between the shoals of not improperly invading marital privacy and of properly applying the spousal crime exception to the marital privilege. By the very fact that a criminal charge has been made against one spouse, based on probable cause that he has abused the other spouse, the government has established a compelling interest that justifies demanding testimony from the spouse who was the alleged target of the violence.

  “In this case, that determination of probable cause of guilt is made more difficult by the absence of a pending federal charge, although the existence of a state homicide charge certainly weighs heavily here. We have not yet had a preliminary hearing to determine whether there is probable cause supporting any federal charge against Mr. Klein. The United States Attorney has laid out the evidentiary chain in the
government’s motion response. But that evidence has not been tested in open court.

  “Moreover, as outlined by the United States Attorney, the evidence primarily shows that Mr. Klein had the opportunity to commit the crime, not that he did commit it. There is no direct evidence in the form of an eyewitness or fingerprints on the explosive device. Nor is there strong circumstantial evidence that connects Mr. Klein to the car bomb. The TNT may have come from Mr. Klein’s construction company. Mr. Klein may have had an opportunity to secretly access those explosives. And naturally Mr. Klein had access to the car in his own garage. This may well satisfy the minimal level of probable cause, but it is far from a compelling case, based on the evidence presented thus far anyway. Of course, I do understand that the federal grand jury investigation is still ongoing.”

  Hoping fervently that the tide might finally be turning in her favor, Candace felt some of the tension in her body begin to release. She was beginning to feel optimistic again.

  Then the direction of the judge’s ruling changed course: “None­theless, I am reminded by the Supreme Court and the court of appeals that, especially in criminal proceedings, a privilege should be construed narrowly because it obstructs the search for the truth. As Justice Stewart well said, ‘Any rule that impedes the discovery of truth in a court of law impedes as well the doing of justice.’

  “Moreover, while the federal marital privilege precedents typically involved the voluntary testimony of a spouse, those rulings—including the Eighth Circuit ruling that binds this court—have adopted an exception to the marital privilege for spousal crimes without suggesting it was limited only to voluntary testimony.

  “Indeed, compelling a spouse to testify under this exception for wrongs against a spouse is hardly unprecedented in the federal courts. Fifty years ago, in Wyatt v. United States, the Supreme Court held that it was ‘not an allowable choice’ for a victim witness-wife to ‘voluntarily’ decide to protect her husband by declining to testify against him.

  “In addition, I observe that our own Eighth Circuit, other federal courts, and the state of Minnesota have recognized an exception to the marital privilege to protect the children of either spouse from abuse. Whether this exception truly applies in this case—given that the government’s theory is that the child victim here was not the intended target of violence—it still bolsters my conclusion that an exception to the marital privilege does attach here. The fact is that a child died and that the government is investigating whether he died by the hand of his own father, whether intended or not.”

  Candace dropped her head forward and stared fixedly at the table in front of her. Her hands were clenched in her lap, as she struggled to retain her composure.

  “Accordingly,” Judge Williamson announced, “I conclude that the exception to the marital privilege in cases involving a charge of criminal violence by one spouse against the other cannot be avoided here. As a matter of law, the marital privilege is not available here. Thus, I am denying Mrs. Klein’s motion to quash the subpoena to testify before the grand jury.”

  Robby Sherburne grinned, looking over his shoulder to smile at the news media in the audience. Candace was stricken, as her downturned face turned pale.

  Judge Williamson was not finished. “However, as a matter of my judicial discretion, I am notifying the United States Attorney’s office that I will not exercise my inherent powers of contempt to enforce that subpoena.

  “Speaking directly to the United States Attorney’s office, let me explain what this means. The subpoena is valid, and the marital privilege is not an acceptable objection in this case. But I do not believe the circumstances of this case justify imposing punishment on the recalcitrant witness by holding her in contempt . . . at least under present circumstances.

  “First, the government has yet to press any federal charge by way of complaint, much less an indictment. Second, as demonstrated by the government’s response to the motion to quash, the government does not clearly indicate what evidence would be extracted from Mrs. Klein if she were to testify. Other than vague generalities, the United States Attorney has not even indicated what specific questions would be asked of Mrs. Klein were she to appear before the grand jury. And, third, while Mrs. Klein’s authenticity in believing her husband to be innocent and refusing to act against him does not mean the marital privilege applies, her motivation does play some limited role in deciding what is the appropriate remedy here.

  “As matters now stand, we have a rather weak evidentiary case, a sincere and well-meaning spouse refusing to cooperate, and a fishing expedition by the United States Attorney into the communications made in the marriage relationship. I simply am not willing to send Mrs. Klein to jail for refusing to testify.

  “Mr. Sherburne, you are free to issue the subpoena. But Mrs. Klein will not be held in contempt if she does not respond.”

  Turning to Candace, who slowly looked up as her name was said, the judge continued, “Mrs. Klein, let me be clear with you as well. If you refuse to testify to the grand jury and at any trial that follows, you will be in violation of the law. I am not granting you permission to violate the law and ignore the subpoena, even though I am not responding to your illegal conduct with punishment by contempt.

  “As a lawyer and a law professor, and especially a professor who teaches lawyer ethics, you have a duty as an officer of the court to follow the law. If you place your loyalty to your husband and your commitment to his innocence above your legal duty, I am not prepared to impose the penalty of contempt and send you to jail until you cooperate. But you will be in contempt of the law and of this court, in substance if not in formal ruling.

  “In sum, Mrs. Klein, at least under present circumstances, this is an act of mercy on my part, not of absolution.

  “I will allow you to make the decision as to the right course of action. And, having disqualified Mr. Dietrich from representing you and precluding the defense from allowing your continued participation in attorney-client communications, this is a burden that you must carry alone.

  “And I do not promise that I will extend that grace to you forever, if circumstances were to change.”

  Chapter 12

  [TEN WEEKS AFTER THE TRAGEDY]

  Having ruled on the competing motions to disqualify and to quash the grand jury subpoena, Judge Sally Williamson looked to Andrew Dietrich and Robby Sherburne. “Is there anything else today, counsel?”

  “Yes, your honor,” said Dietrich, as he stood up behind the counsel table. “We wish to bring to the court’s attention an egregious violation of the Speedy Trial Act, while William Klein continues to languish in jail. We ask for immediate relief for Mr. Klein, who now is being unlawfully detained because he has not been afforded his right to a preliminary hearing in this court.

  “The United States Supreme Court has described the preliminary hearing as a ‘critical stage’ of the criminal process. In the federal system of criminal procedure, the accused is entitled to challenge the sufficiency of the evidence after his arrest and to ensure that he does not continue to be held in jail. He may not be detained when the United States has failed to establish probable cause for the charges at a preliminary hearing.

  “As your honor well knows, under both the Speedy Trial Act and under the Federal Rules of Criminal Procedure, unless there has been an indictment by the grand jury, a person who remains in custody must be afforded a preliminary hearing no later than fourteen days after an initial appearance in court.

  “I must now report to the court that it has been sixteen days since Mr. Klein was arrested and fifteen days since his initial ­appearance. Throughout this period, he has remained in custody. And the United States Attorney has failed to schedule a preliminary hearing, thereby violating Mr. Klein’s rights.”

  Sherburne rose quickly to his feet and said, “Your honor, Mr. Dietrich is mistaken. The federal Speedy Trial Act applies only to a p
erson arrested on federal charges and being held in federal custody. Mr. Klein was arrested by a city police officer, was charged with homicide under Minnesota state law, and is being held in the Hennepin County jail. Thus, the fourteen-day clock for a preliminary hearing has not been triggered under the federal Speedy Trial Act.”

  Sherburne turned toward Dietrich and smiled smugly.

  Lieutenant Ed Burton was sitting in the last row of the gallery in the courtroom, next to Alex Kramer of the ATF. That sneaky bastard, thought Burton. So that’s the reason why Sherburne wanted me to arrest Klein and then to take him to the county jail.

  Burton had considered it odd that Sherburne, who had always resented his involvement as a city cop in this federal matter, had suddenly decided to delegate the task of arresting Klein to him. Now Burton understood that Sherburne had been using him to get around federal criminal procedure. Sherburne wanted to preserve the luxury of all the time he could want to marshal the federal case against Klein, while still getting the credit in the news for making an early arrest in this sensational case.

  Dietrich was unperturbed. “Your honor, Mr. Sherburne is playing fast-and-loose with defendant’s rights under federal law. Mr. Klein may have been arrested by a city cop, but the strings were being pulled by the feds. One need look no further than Mr. Sherburne’s press conference that joyfully announced the arrest to the news media.

  “The state murder charge is simply for show. This is really about a federal explosives charge. Otherwise, why are we here today talking about the federal grand jury investigation?”

  Judge Williamson scanned the audience in the courtroom. “Is the arresting officer present today?” she asked.