Marital Privilege

by Greg Sisk

  It was an awkward homecoming, as Bill had been firmly instructed by his lawyer not to say anything more to Candace about the case. Now that Bill’s attorney had been disqualified from representing Candace, the judge had warned that attorney-client privilege would apply only if Bill and his attorney Andy Dietrich maintained careful confidentiality. And that meant keeping Candace out.

  For the first couple of days after his return, Bill was even more taciturn than before. True to his reserved nature, Bill hadn’t shared much in the way of details. Still Candace gathered from stray comments that being jailed for more than two weeks had been a trying experience. She thought it best not to push too hard.

  At the same time, Candace was increasingly convinced her failure to be more forthright with Bill and her willingness to accommodate his natural reticence had been the greatest mistake of her life—and the greatest weakness in their marriage. As an opening, maybe she could be the one to express her feelings, without pushing him to reciprocate at first.

  Her first attempt at more direct and honest conversation went badly—very badly. And, to make it worse, she realized afterward that she should not have initiated her communications offensive by trespassing on the forbidden territory of the case against Bill.

  But she could not refrain. She had to let Bill know about her crisis of conscience.

  In the days since the court hearing, Judge Williamson’s admonition that Candace had a moral and professional obligation to honor the grand jury subpoena and to testify had been gnawing at her. When Williamson had pointedly reminded Candace of her duty as an “officer of the court,” those words struck her to the core of her professional identity.

  In her professional responsibility class at the University of St. Thomas School of Law each year, Candace reminded students of the words of the great American jurist Justice Benjamin Cardozo. He had said that, by being “received into that ancient fellowship,” a lawyer becomes “an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.”

  A black-letter rule of lawyer ethics prohibited a lawyer from knowingly disobeying an obligation under the rules of a tribunal of justice. Judge Williamson had graciously refrained from imposing the punishment of contempt for that disobedience. But that was little solace to Candace.

  She had become a lawyer because she was drawn to the highest ideals of the legal profession. She had accepted the invitation to join the faculty at the University of St. Thomas because they understood the practice of law as a vocation. By seeing the profession as a higher calling, Candace and her colleagues appealed to an ideal of professional responsibility that was so much more than merely avoiding discipline.

  Candace had received Judge Williamson’s rebuke personally. She had fully internalized the view of the legal profession as offering the opportunity to serve her fellow human beings and the system of justice with moral forthrightness and dignity. Now her personal pride in being a woman of moral judgment and of professional integrity was corroding.

  Her own action—or rather her deliberate inaction—was alienating her from part of her own personality. She identified not just as a lawyer, but as a good person who was a lawyer, having always insisted there need be no contradiction between the two. But her continuing disobedience of the court order was at war with her professed ideals.

  Struggling to reconcile her apparently conflicting duties to her husband and to the legal profession—having sworn oaths of fealty to both—she asked Bill if she could talk through her thinking on how to balance these competing demands. She suggested that, if she were to change course and volunteer to testify, she could help set the stage for a positive interpretation in Bill’s favor. By coming forward, she could put their conversations about the missing explosives in fair context and thus ensure everything would be presented in the best possible light. Moreover, knowing in advance of her testimony, Bill and Andy Dietrich could readily respond and confirm that Bill’s mistake in logging the explosives at the construction site was entirely innocuous.

  Mistakenly taking Bill’s initial silence as an invitation to press her point, Candace then went a step further. She argued that Bill should be the one to speak up now and publicly acknowledge the error in logging explosives. The whole thing would sound so much better coming from him. He would appear forthcoming and honest, even willing to admit a mistake and explain how it was an innocent one.

  And if Bill would do that, it would spare her from having to testify. Or at least it would make her testimony beside the point and redundant, as she would have nothing then to add to what Bill had already disclosed.

  Bill looked absolutely horrified. “God, no, Candy,” he responded. “That’s a terrible idea. I shouldn’t be telling you this, I suppose, but you have to understand why we should not take that approach. Andy thinks there’s a good chance the grand jury won’t find enough probable cause to indict me on the federal explosives charge. You know, it’s pretty clear that even Lieutenant Burton doesn’t believe that I had anything to do with this. He’s a pretty good guy, and I’d like to think he’s a good judge of character—at least my character. If the cops aren’t convinced, it is unlikely a grand jury will be.

  “Even if there were an indictment and this case were to go to trial, the evidence is so weak that Andy says our best strategy may be to simply rest after the prosecution presents its case. We’d present no evidence. I wouldn’t have to take the stand. As Andy puts it, we’d show our confidence in my innocence by demonstrating our conviction that the prosecution’s case is so weak as not to even deserve a response.

  “But if you were to testify, then everything gets complicated. At the very least, I’d have to take the stand and explain about the mistake in logging the explosives. That might plant in the mind of the jury the idea that I might have taken some of the TNT for, you know . . .”

  Bill continued, in an anxious tone, clearly trying to convince her. “And, Candy, this is not just about me. If we can get past the deadline under the Speedy Trial Act without an indictment from the grand jury, the charge against me will be dismissed. And then we can try to get everyone to start looking harder for the real culprit. Remember, every day that’s lost with these baseless charges against me is a day lost in finding who murdered our little boy.”

  Candace wanted Bill see how this moral quandary was eroding her self-confidence and undermining her sense of moral balance. “But what about me, Bill? If you aren’t willing to give in a little, share some of this information publicly, then the whole burden rests with me. I’m the one who has been subpoenaed. I’m the one who’s disobeying a court order. Bill, please understand. This is leaving me in an impossible position. You’re forcing me to compartmentalize my life, to separate my loyalties to you and to the law and to betray one or the other. I take both seriously. Both define who I am. You should know me well enough to realize this is tearing me apart.”

  “Candy, I know it’s hard, but we’ve got to stick together,” insisted Bill. “This is my life on the line here. You’ve stood by me so far. I hope that isn’t going to change.”

  “No,” sighed Candace, settling back on the sofa. “I’m still with you.”

  “Good,” said Bill with relief. “And, you know, we really shouldn’t be talking about this.”

  So Candace acquiesced and retreated back into the silence between them.

  • • •

  For a while after J.D.’s death, she had sensed they were drawing together again. They’d been talking, like they had not talked in many months, years even. But now the law had come between them. The one thing most on their minds—the possible criminal charge hanging over Bill’s head—was the one thing about which they could not speak.

  Well, actually, the legal case was the second thing most on Candace’s mind. No matter where her introspections began and how far they wandered, they always circled back to J.D. Whatever th
e topic of the moment or the matter that demanded her immediate attention, the wrenching loss of her boy was never far away in her thoughts.

  In the early weeks after the car bombing, and before Bill’s arrest, she had found growing comfort and had perceived restored ­intimacy with Bill by being able to talk about J.D. with him. Surely they could still talk about their son. That topic could not be, could never be, taboo. She would not tolerate anything that caused them to push J.D. into the past and leave him out of their continuing lives together.

  She tried again to break the impasse between them by periodically calling up a treasured memory of J.D. Sometimes Bill would follow her lead and break through the wall of silence. But, frustratingly, within a few minutes, the barrier would seal up again. She could see in his eyes that Bill had become distracted and was no longer listening to the story she was telling.

  She did, of course, understand. She could only imagine the stress he was under, being accused of killing their child, while the state’s most notorious prosecutor was calling for his execution.

  Nonetheless, she persisted in attempts to reach out to him. And her patient, loving efforts began to bear fruit. When she found Bill sitting forlornly in the apartment with a sad look on his face, Candace would sit down next him on the sofa and hug him quietly. She didn’t try to intrude with words. She was content to simply let him know that she was there.

  In response, Bill slowly became more attuned to her moods. One day when she disappeared into the bedroom for a solitary cry, Bill refused to abandon her to her sorrow. He followed her into the bedroom, and sat on the bed, quietly holding her hand, until the tears stopped.

  As the days passed, Candace noticed that Bill alternated between being morose and exhibiting an energy she had not seen in him in a long time. Notably, Bill’s episodes of reanimation arose in a conspicuous pattern. He appeared revived whenever he returned from one of his daily meetings with Andy Dietrich.

  Especially given the prior episode, she knew better than to ask him about how the legal representation was going. Still, as this parade of enhanced vitality marched forward yet again, she decided she had to know more. So, with premeditated casualness, she asked in an roundabout way how Bill was feeling.

  With a rejuvenated brightness in his eyes, he came alive to her. “Candy, what I’m feeling is very strange. I know I should be petrified, frightened out of my mind, thoroughly despondent. And, as you know more than most, since you’ve had to put up with me, I have been depressed. I really am scared. I’m very scared. Sometimes, I can hardly bear the weight of being subject to this criminal investigation, to know that people think I murdered my own child. But that fear, that anxiety, that humiliation is not the only thing I’m feeling.

  “I’m also finding, oddly enough, that I’ve discovered a new purpose in life, something that I now realize has been missing for far too long. When I go to Andy Dietrich’s office and work on my defense, I’m doing something that matters. I’m fighting for my freedom; I’m fighting for my name. As weird as it sounds, defending myself against these horrendous charges has given me a sense of meaning.”

  Bill looked Candace directly in the eyes. “Maybe it’s just that I’ve been living without direction for so long. These past few years, working in that dead-end job for your father, has been draining the life out of me. Being without a purpose, without a calling, is . . . is, like feeling a part of your soul melt away every day.

  “It’s hard to explain what’s happening to me. When I dwell on the accusations against me, I feel like I’m plunging into a long, dark, and endless tunnel. But when I focus instead on defending myself, on working to show my innocence, then I feel like I’m emerging from a long sleep. Then, there is hope.”

  Candace hadn’t heard Bill talk with such animation since, well, since they had moved to the Twin Cities. Maybe, she thought, just maybe, the door was finally opening again. When this is all over, when the obstacles to communication are swept away, then they could really talk.

  Bill’s confession of intertwined fear and hope could not break down the barricade of secrecy. But his refreshing disclosure provided a new incentive to each of them to find and exploit holes in those fortifications. Because they were precluded from speaking on the subject of most immediate concern, Bill and Candace began finding clever ways to circumvent the imposed silence and to interact with each other in a personally meaningful way, while holding to the communications blackout. Precisely because such interactions were difficult and awkward, and thus demanded careful deliberation and planning, the delicate feints they made toward each were all the more appreciated and carried greater affectionate meaning.

  One evening, for example, they were sitting in separate chairs in the living room area of the condo, watching an old horror movie on the wide-screen television, which they had hung high on the wall. The cat, Tucker, had always been rather sensitive to what he perceived as emotional tension, so he had become more and more fretful as the victims of the movie monster screamed through the speakers of the surround sound system.

  When Tucker became confused, he often behaved in an ostentatious manner, trying to seize attention, in an attempt to be reassured of his proper place in the home. On this occasion, without any warning, the cat suddenly leaped up some four feet from the floor all the way up to the narrow upper edge of the wide-screen television attached to the wall. Then, perched on the top of the television, he hung his front paws over the edge and stared at them.

  Simultaneously both Bill and Candace dissolved into laughter. Candace was laughing so hard she could hardly catch her breath and tears were streaming from her eyes. Bill had jumped to his feet, worried at first that the television might come crashing down, and then had fallen back toward his chair, missed his seat, and dropped to the floor. While wincing and grabbing his sore rear end, Bill looked over at Candace and laughed even louder than she.

  For the rest of the evening, there was an easiness between them and a lighter mood. They made love that night for the first time since the tragedy.

  During their long hours together in the condo, they frequently played music on the sound system Bill had set up to fill the silence and to lift their spirits. They alternated as to who would choose what music to play. When it was Candace’s turn, she often selected a ­collection of Beatles songs, both because she had always loved the band and because most of the tunes were cheerful.

  One of her favorites was John Lennon’s anthem, “All You Need Is Love,” which had been recorded live in 1967 with an orchestra for the first global television link by satellite. When the compact disc reached this song in the Beatles collection, Bill sang along at the chorus. Candace joined in. When the recording reached the chorus for a second time, Bill walked over to Candace, took her by the hand, and led them in a simple two-step dance. After swaying in each other’s arms, they kissed.

  For one brief moment in time and space, Candace could almost believe the words with which the Beatles ended the song—“Love Is All You Need.”

  • • •

  And then, abruptly like the needle of an old-fashioned record-player jerking off the platter, everything slipped back. And the cause of the retrenchment once again was Bill’s alienated relationship with Candace’s father.

  Bill had not been back to the office at Insignia Construction since the day of the car bombing. Weeks now had passed. He never said anything to Candace about when he might return to work. And she had been afraid to ask him.

  His paycheck continued to be automatically deposited into their checking account every two weeks. The very fact that the paycheck kept coming, while Bill didn’t go to work, simply reinforced to her—and she was sure to Bill as well—that her father truly had been carrying him at the company, regardless of what Bill actually contributed.

  Candace had seen her father a few times in the past several weeks, but always without Bill. She had gone to her father’s house
for lunch a couple of times. And, when she was working at the law school, her father had arranged to come by and see her once or twice.

  Now that she and Bill seemed to be moving on an even keel again, even under the trying circumstances, she spoke for the first time about her father. One evening, she mentioned she would like to have her father visit them in their new home.

  She saw that Bill was uncomfortable with the idea. When she pressed, he erupted.

  “You know,” Bill said, “I’m not as oblivious to what’s going on around me as you and your father think.”

  “What do you mean?”

  “I know that George keeps me on at the construction company just because I’m family. Or, more likely, as a favor to you.”

  Candace couldn’t offer any rebuttal. Her father had never said so, but she had thought as much.

  “And while you may be the one who balances the checkbook each month, it does all come out of the same account.” Bill pointed to an old roll-top desk that had been placed in the main area of the condo. “And all of our financial papers are kept in that desk. Remember when that guy bumped into the back of my car at the intersection last year?” asked Bill rhetorically. “Well, I pulled our car insurance policy out of that desk drawer. And your ‘secret’ life insurance policy was right there as well.”

  Candace was astounded. “So you did know about the insurance policy when I sat there and told Lieutenant Burton you didn’t know anything about it. You let me lie to the police!”

  “It wasn’t a lie. You thought you were telling the truth.”