Marital Privilege

by Greg Sisk

  Oh, sh—, thought Burton, as he rose reluctantly from his seat at the back of the courtroom. He lifted his right hand up half-heartedly and said, “Yes, I’m here.”

  “Very good,” said Williamson. “Officer, please come forward to the witness stand and be sworn.”

  “Wait a minute, your honor,” interjected Sherburne, no longer looking so satisfied. “Calling a police officer as a witness from the gallery without any advance notice, with no prior preparation, this . . . this is highly irregular.”

  “That’s what we’re trying to explore here, Mr. Sherburne,” said the judge in a stern voice, “whether things have been, as you say, ‘highly irregular.’”

  Burton shuffled up to the front of the courtroom, where the bailiff directed him to the witness stand and swore him in as a witness.

  “Now, officer, please state your full name and position,” directed Judge Williamson.

  “Edward Renault Burton. I’m a lieutenant with the City of Eden Prairie Police Department.”

  “Lieutenant Burton, please tell the court how you first came to be involved in the investigation of the incident at the Klein house.”

  “I was the lead police investigator called to the scene that morning. The Klein house is located in Eden Prairie, and police dispatch had received a call of an explosion and injuries at that residence.”

  “Was there any federal law enforcement presence at the scene?”

  “Not at first. A patrol car from the Eden Prairie police department responded first, along with an ambulance, and my partner and I came within a few minutes thereafter.”

  “When did federal law enforcement first arrive?”

  “I’d say about sixty minutes after I had arrived.”

  “Pretty quickly then.”

  “Yes.”

  “And who was that?”

  “Alex Kramer, special agent in charge with the violent crimes bureau at the St. Paul division of ATF.”

  “How is it that you have continued to be involved in this matter, after federal law enforcement arrived on the scene?”

  “Mr. Kramer asked me to continue to work on the case, to do the police legwork on the investigation. Eden Prairie had a strong interest in this case of course, so my police chief was happy the department would be kept in the loop.”

  “And who would be in charge?”

  “Mr. Kramer said it would fall under federal jurisdiction, that I would report to him and keep him informed.”

  “And have you done that?”

  “Without exception. I have reported at least every other day to Mr. Kramer since the incident in May.”

  “Did you personally arrest Mr. Klein?”

  “Yes, I did.”

  “When was that?”

  “Sixteen days ago, as Mr. Dietrich said.”

  “Did you act on your own initiative when you arrested Mr. Klein?”

  “No.”

  “Did the Eden Prairie police chief order you to arrest Mr. Klein?”

  “No.”

  “Were you asked to make the arrest by the Hennepin County Attorney?”

  “No.”

  “So who did tell you to arrest Mr. Klein?”

  “Mr. Kramer of the ATF.”

  “And what did Mr. Kramer tell you?”

  “He said that Mr. Sherburne had instructed him to have me arrest Mr. Klein by the end of that day and to arrest him for murder.”

  “And where did you take Mr. Klein after the arrest?”

  “To Hennepin County jail for booking.”

  “Why did you take him there?”

  “Because Mr. Kramer told me to do so and said everything had been arranged by the United States Attorney’s office and through the Hennepin County Attorney’s office so the county jail personnel would know that I was coming in with Mr. Klein.”

  “When did Mr. Klein make an initial appearance?”

  “The next day, in Hennepin County District Court.”

  “Was someone there for the county attorney’s office?”

  “Yes.”

  “What did the county prosecutor tell you?”

  “I asked the assistant county prosecutor afterward when he would next need me in court. He told me I needn’t worry about that, that the county was just going to hold Mr. Klein until the feds got around to getting a grand jury indictment on the federal charges.”

  “Thank you, Lieutenant Burton.”

  Judge Williamson peered over her glasses at Sherburne. “Does the United States Attorney wish to cross-examine Lieutenant Burton?”

  “No,” said a red-faced Sherburne in a low tone.

  “You may step down, Lieutenant Burton,” said Williamson. “Mr. Sherburne, do you wish to call any other witness to challenge the accuracy of any of the factual statements made by Lieutenant Burton?”

  “No,” croaked Sherburne.

  “Very well, then,” said the judge. “Based on the facts presented to me, and not disputed by the United States Attorney, Mr. Klein may have been arrested by a city police officer but that officer was acting entirely as an agent of the federal government and under direct orders from federal law enforcement officials. Mr. Klein has since been held in state custody with the knowledge of federal authorities and for the sole purpose of later being subjected to federal criminal charges.

  “Accordingly, Mr. Klein has effectively been under federal restraint since his arrest. The federal Speedy Trial Act was triggered by his initial appearance. Because more than fourteen days have passed without the United States Attorney scheduling a preliminary hearing, the Speedy Trial Act has been violated.”

  Dietrich, who had remained standing at the counsel table, nodded vigorously. Sherburne was slumped in his chair.

  “Now,” Judge Williamson explained, “the remedy for such a violation is not a dismissal of any federal charge. Nor does this violation preclude a later indictment.”

  Opening up a statute book, she continued: “Instead, Section 3060 of Title 18 of the United States Code states, quote, ‘an arrested person who has not been accorded the preliminary examination ­required by’ the statute and within the required period of time, quote ‘shall be discharged from custody or from the requirement of bail or any other condition of release.’

  “Accordingly, under the law, I must and do hereby order the immediate release of Mr. Klein from detention.”

  Sherburne shot to his feet: “You can’t be serious. You can’t be granting release to a defendant in a capital case.”

  Sherburne was surprised to find himself standing, startled by his own vehement objection. He braced himself, expecting a sharp reprimand by the judge for his outburst.

  Judge Williamson was silent for a moment and then spoke directly to Sherburne in a calm and matter-of-fact fashion. “By ‘capital case,’ Mr. Sherburne,” she said as she retrieved a bound law book from the side of the bench and leafed through to a particular page, “I assume you are referring to Title 18 of the United States Code, Section 844 and subparagraph (i).”

  Sherburne answered in an unsure voice, “That sounds right. But I don’t have the statute book right in front of me, your honor.”

  “That’s all right, Mr. Sherburne,” said the judge with modulated reasonableness. “I do have it in front of me. Let me read the pertinent text and you can tell me if this is what you mean: ‘Whoever maliciously damages or destroys . . . by means of fire or an explosive, any . . . vehicle . . . used in interstate or foreign commerce or in any activity affecting interstate or foreign commerce . . . and if death results to any person . . . as a direct or proximate result . . . shall also be subject to imprisonment for any term of years, or to the death penalty or to life imprisonment.’ Is that what you mean?”

  “Yes,” said Sherburne gratefully. “That’s e
xactly what I mean. The statute expressly authorizes the death penalty when someone has been killed as a proximate result of use of explosives to blow up a vehicle.”

  Sherburne had set the trap for himself. Judge Williamson was only too willing to spring it on him.

  “Yes,” returned Williamson. “Yes, it does. It does indeed, Mr. Sherburne. Minnesota state law of course does not provide for the death penalty. But this federal statute expressly authorizes a death sentence.

  “By saying this matter involving Mr. Klein is a ‘capital case’ and then invoking before me the pertinent federal criminal statute, you have now confirmed by your own words, Mr. Sherburne, that this is indeed a federal case involving a federal charge. If it hadn’t been clear already, the pre-textual nature of the state arrest and the state murder charge is now proven out of your own mouth.”

  Sherburne’s face had deepened to dark scarlet.

  “So, Mr. Sherburne, to now answer your question about whether I am ordering Mr. Klein’s release,” Williamson continued. “Yes, I am. Your own conduct has ensured that Mr. Klein must be released. The Speedy Trial Act mandates release from detention when a preliminary hearing is not held within fourteen days of the initial appearance of someone being held in custody.

  “Mr. Klein’s release is not because of any exercise of judicial discretion in his favor. The court’s hands are tied. Mr. Klein is being released because of the actions of the United States Attorney’s office in failing to conduct a preliminary hearing within the time period required by the law of criminal procedure.”

  Judge Williamson had not finished delivering the bad news to the United States Attorney. “The Speedy Trial Act clock is indeed running, counsel. And it doesn’t just mean that a preliminary hearing should have been held already. Under that statute, a grand jury indictment must issue within thirty days of the defendant’s arrest. So, Mr. Sherburne, that means you’ve now got about two weeks to complete your investigation and secure an indictment from the grand jury.

  “And the Speedy Trial Act also provides that a case must be set for trial within seventy days from the filing of any indictment. So if the United States Attorney does have an indictment within the next two weeks, I’ll be seeing both of you, Mr. Sherburne and Mr. Dietrich, for trial in about two months.”

  After she had collected the papers and books around her and looked over to her law clerk to signal that the court session was about to be completed, Williamson paused and looked reproachfully at Sherburne.

  “You will be well-advised, Mr. Sherburne, to follow the law of criminal procedure in this case from here on out. And I will be happy to help ensure that you do.”

  After the clerk had gaveled the court session to adjournment and the judge had left the bench, Alex Kramer who had also been watching from the gallery came up to Sherburne’s side at counsel table.

  “You wanted the investigation to go faster, sir,” Kramer said. “You should be careful what you wish for.”

  Chapter 13

  [ELEVEN WEEKS AFTER THE TRAGEDY]

  They had both been raised in the Twin Cities of Minneapolis-St. Paul, but they didn’t meet until they were students at the University of Wisconsin. The states of Minnesota and Wisconsin had an exchange arrangement allowing college students from one state to attend the public universities in the other state and pay lower in-state tuition. For no better reason than that most of her high school friends had chosen to go to there, Candace Peterson tagged along to Madison, Wisconsin. And there she met Bill Klein.

  Well, actually, she didn’t meet Bill at the University of Wisconsin either. Even though both came from the Twin Cities and both were studying at the UW in Madison, it took a summer college program in Rome to bring them together. The University of Wisconsin’s own international studies program didn’t include study in Rome. But John Cabot University—an American institution located in the heart of Rome’s Trastevere district—offered summer programs for students at other colleges and universities.

  With her Catholic upbringing, Candace had always believed Rome would be the perfect place to “study abroad.” The four basilicas: St. Peter’s, St. Mary Major, St. John Lateran, and St. Paul Outside the Walls. The Vatican Museum. The Palatine Hill. The Piazza Navona. The Trevi Fountain. The Pantheon.

  She’d learned about these treasures of the Eternal City in Catholic grade school. But she’d never had the opportunity to visit. So, for the summer after her freshman year, she signed up with John Cabot University.

  For much the same reason, but quite independently, Bill Klein had found himself in the John Cabot summer program as well.

  Bill then was a young man of average height with butterscotch hair, which he wore halfway over his ears. He had graduated from another Catholic high school on the St. Paul side of the Twin Cities, where he had been salutatorian of his class, won the graduating class award for promise in engineering, and lettered in track running the 400-meter, although he had never qualified to run at the state tournament.

  One night that summer, the group of students in the program decided to go see the opening of a new American movie at the only theater in Rome that played English-language films (with Italian subtitles). As they walked toward the theater as a group, Bill ended up walking next to Candace and then suddenly said, rather forwardly, “Why don’t you be my date for tonight?” When she asked why he had said that, he replied in a jocular tone, “Well, I’m a good Catholic boy, and you seem to be a good Catholic girl . . . and very pretty.”

  As they got in line at the theater, she said slyly, “So I assume you’re going to buy my ticket then?” And he did.

  After passing through the doors into the lobby, she continued to play the role of the demanding date, ordering, “Now I’d like a popcorn, a chocolate bar, and a soda.”

  And then she sauntered right past him and into the theater, leaving him alone to go to the snack counter. Several minutes later, Bill staggered into the theater loaded down with snacks and sodas. Candace had held a seat open next to her.

  As he sat down, she leaned over, grinned, and said, “I really did take advantage of you, didn’t I?” He smiled back and said, “Yes, but it was a fair advantage.”

  In the days to come, they both laughed about that “first date” and didn’t take it seriously . . . or at least they didn’t admit to the other that they had taken it seriously. Still, Candace found herself more and more often talking with Bill during breaks between classes and walking alongside him on the various group tours of sites in Rome.

  About two weeks later, Bill and another group of students, not including Candace, went on a weekend trip to Bologna by train. When Bill came back late on Sunday evening, Candace was at the main train station in Rome, called Termini, waiting for him. When he saw her standing in the station, he said, “Well, I’m glad to see that I’m not in this relationship all alone.” She smiled broadly and said coyly, “So this is a relationship, huh?”

  And then she leaned toward him and gave him a peck on the cheek. As she started to move back, he gently pulled her in closer and kissed her on the mouth. She kissed back.

  Their first kiss. Such a simple thing. But she could still remember how she felt, those butterflies in her stomach, the worry about whether her nose would bump into his, and, especially, the way the world fell away.

  For everyone else that night, the bus trip from Termini to Trastevere (where the student apartments in Rome were located) must have been an ordeal. But, despite everything that went wrong on that sunset bus ride, she treasured those hours as one of the best nights of her life. For all of the other passengers, the mishaps that followed made what would ordinarily be a short cross-town trip seem interminable. For her, it ended all too soon.

  To begin with, the bus on the route from Termini to Trastevere was not on time, so they waited nearly an hour for a bus that was supposed to come every twenty minutes. That delay was t
o be expected. Public buses in Rome were never on schedule. It was not unusual to wait an hour and then see two buses on the same route arriving within a few minutes of each other.

  A few minutes before the bus finally arrived, an unseasonable rain began to fall, leaving them both soaked to the skin, as neither had thought to bring an umbrella. Candace was glad she had worn a light jacket, which she didn’t often do in the Rome summer heat. At least, then, she wasn’t wearing a blouse stuck tight to her skin.

  After they finally boarded the tardy bus and it pulled away from the station, the bus driver found himself stuck in a traffic jam caused by a bicycle race around the Colosseum. The Roman Politizia had blocked off the regular route for the bus and kept directing traffic farther and farther toward the northeast—directly away from the Trastevere district in the southwest part of Rome. While trying to follow the confusing directions of the traffic officer, the bus driver was spewing flustered Italian phrases into his cell phone, begging the bus dispatcher for directions to get back on the route.

  Bill and Candace laughed about how different this experience was from what would have happened back home. If there was going to be a bicycle race in downtown Minneapolis, then for days in advance the local newspapers would publish maps with alternate bus routes during the race. Bus drivers would be briefed on which detours to take to avoid the race area. But in Rome, no advance planning had taken place. The bus driver was left on his own to navigate eastward around the race site, circle back west toward the Vatican, find a bridge across the Tiber, and then work his way south toward the Trastevere district.

  What a disaster! What should have been a thirty-minute evening ride turned into an hour-and-a-half night-time debacle as they sat in rain-drenched clothes on a sweltering hot bus crowded with annoyed passengers and a clueless bus driver.

  But Candace didn’t care. She was with Bill. And they were a couple now. She could not have been happier anywhere else in the world with anyone else.

  • • •

  Fifteen years later, a continent away from Rome, and anything but happy, Candace and Bill came home together—if they could describe as “home” that newly rented condominium unit in downtown Minneapolis. They had spent only a couple of tumultuous days there together before Bill had been arrested. And most of the boxes of their household possessions moved from Eden Prairie remained unpacked and piled around the apartment.