Marital Privilege

by Greg Sisk

  “But you didn’t speak up and correct my mistake.”

  “No, I thought admitting I knew beforehand about the insurance policy might leave the wrong impression with the police.”

  “And maybe it leaves the wrong impression with me!”

  “Now, Candy,” Bill said, dialing back from his irritation and affecting a soothing tone. “Surely you don’t mean that. You know I’m not capable of doing such a thing. We’re all right, aren’t we?”

  “Yes. I know you didn’t do it. We’re all right.”

  But, once again, Candace was avoiding the truth. She wasn’t all right. She was feeling queasy.

  • • •

  The curtain of silence had fallen back in place. Neither of them struggled to tear it open again. At most, one or the other peeked through the veil from time to time, without lifting it away. Their conversations deteriorated to contrived but tepid remarks about the weather, or a falsely enthusiastic declaration that the condo was starting to feel like home with the placement of a piece of furniture here or the unpacking of another box there, or a casual inquiry as to what the other might like for dinner.

  The sharp edge of that last exchange about her father and the insurance policy had dulled quickly. Even during the darkest days of their marriage, Candace reminded herself, they had never been overtly hostile to each other. Nonetheless, what she had learned from Bill’s outburst was not so easily forgotten.

  As the days drew on, Bill did cast an occasional sympathetic look in her direction, which Candace faithfully returned. But what Candace had hoped was the first step toward a restoration of marital intimacy was over, at least for now.

  The days passed. They were at home. Together. Alone.

  Chapter 14

  [TWELVE WEEKS AFTER THE TRAGEDY]

  Robby Sherburne was increasingly desperate, even frantic. He watched his political hopes melt away like a cube of ice tumbled out on a picnic table on a hot summer day. With each passing day and still no indictment of William Klein by the grand jury, Sherburne’s reputation as a confident and triumphant crime-fighting prosecutor was steadily evaporating.

  The members of the grand jury had been sternly warned not to read newspapers or watch the television news. Yeah, right. Sherburne knew that they knew. They weren’t hermits, scrupulously avoiding any contact with the outside world. The grand jury members had not been sequestered away in a secret location, where they would have been under strict supervision.

  So it didn’t matter what they had been instructed, Sherburne fretted. The grand jury members surely knew that Judge Williamson had refused to force Candace Klein by penalty of contempt to testify before them. And they surely knew that Candace Klein was proclaiming her belief in her husband’s innocence.

  In the federal criminal justice system, a grand jury of ordinary citizens selected from the community must review the evidence and hear from witnesses to determine whether there is reason to believe that an individual has committed a crime. If the grand jury concludes there is probable cause, an indictment is issued against the accused. Historically, as Supreme Court Justice William Brennan once wrote, the grand jury was envisioned “as a bulwark for the individual citizen against use by officials of the powers of the Government in ways inconsistent with our notions of fundamental liberty.”

  In mundance modern reality, however, a prosecutor typically is in charge of the grand jury process—scheduling the grand jury meetings, deciding what evidence to present (and withhold), choosing which witnesses to call (and which to bypass). A New York state judge once remarked that any decent prosecutor could get a grand jury to indict a ham sandwich.

  Well, Judge Williamson effectively had let the grand jury know that there wasn’t much pork between those slices of stale bread served up by the United States Attorney’s office. This grand jury was turning up its collective nose at the case against William Klein.

  Trying to buy a little more time in the prospect that something new might turn up in the car bombing investigation, Sherburne had taken another run at Judge Williamson. He filed a motion asking for an extension of time to get a grand jury indictment, pleading “extraordinary circumstances.” But to no avail. Andrew Dietrich had responded on behalf of William Klein that the only “extraordinary circumstance” present in this case was “the reckless disregard of the United States Attorney for the rules of criminal procedure.” No joy for Sherburne was to be found before Judge Williamson.

  The experienced hands in the United States Attorney’s office had assured Sherburne that all would not be lost if no indictment was forthcoming in the next few days. The Speedy Trial Act directives were not so rigid. Even if prosecutors could not secure a grand jury indictment within the thirty days required by the Speedy Trial Act, the most likely consequence would be a dismissal for now of the federal charge—but a dismissal without prejudice. Federal prosecutors then could issue a new charge sometime later when they had more evidence in hand and thereby start the clock running again.

  Even if a reproachful Judge Williamson insisted on dismissing the federal charge with prejudice, perhaps by finding that the government had engaged in misconduct by attempting to circumvent federal criminal procedures, a loophole almost surely could be found to pursue some type of charge in the future. To this point, the focus of the investigation had been on the allegation against Klein that he used an explosive that had resulted in the death of his boy. Thus, even a dismissal with prejudice likely would preclude only renewing that specific charge.

  On a second go-round, federal prosecutors could reformulate the charge to focus on the attempted murder of Mrs. Klein. This reframed criminal complaint almost surely would be a sufficiently different charge in substance so as to fall outside of the Speedy Trial Act timeline that had been set in motion by Klein’s arrest for murder.

  And, in any event, nothing that happened in the federal criminal process would undermine the possibility of a state murder charge against Klein. Supreme Court case-law treats the federal government and the state government as separate sovereign entities. So a failed criminal charge at the federal level would not prevent the state from proceeding. Under this “dual sovereignty” rule, the bar of “double jeopardy” simply does not apply when the second charge, even if based on the very same allegations as the federal charge, issues from the state government.

  The unfortunate developments in Judge Williamson’s courtroom were not devastating to the case, insisted the senior assistants in the United States Attorney’s office.

  But they missed the point. The developments were most definitely devastating to Sherburne’s political ambitions.

  Judge Williamson effectively had laid down a challenge to Sherburne to get a proper indictment against Klein within two weeks. Even if one or the other legal strategies worked to salvage a federal case down the line, Sherburne’s failure to meet the Speedy Trial Act deadline enforced by Judge Williamson would be a humiliating public defeat.

  Last night on one of the local television stations, when ending a report on yet another day without a grand jury indictment, the news anchor commented that “this car bomb case has blown up in the face of United States Attorney Robby Sherburne.” Sherburne wasn’t laughing, but he had to admit that the anchor’s pun summed up his situation pretty well.

  And he was smart enough to know it was mostly his fault. He hadn’t been patient. He had abandoned his “political percolation” strategy too early. He’d pushed too hard and too fast. He had taken a gamble to promote his incipient political candidacy.

  And he was losing.

  Still, he hadn’t lost quite yet. Or at least he hadn’t lost everything. Even complying with Judge Williamson’s strict adherence to the statutory deadline, the United States Attorney’s office still had three more days to secure that grand jury indictment.

  Sherburne had called Alex Kramer of the ATF in to his office to send h
im out yet again to shake the bushes and see if something might fall out. If Sherburne could get some new concrete piece of evidence to bring to the grand jury, there was still a chance to turn things around. Even if a complete reversal of his fortunes was unlikely, given the pounding he was taking in the press, he needed something to fend off the jackals in the Department of Justice, who had never been happy to see him become United States Attorney in Minnesota.

  Indeed, things had gotten so bad that Sherburne was willing to go the extra mile and accept help from any source. Like that old saying, Sherburne thought, “any port in a storm.” When Kramer had told him he would do his best but remained shorthanded, Sherburne swallowed his pride. He told Kramer to make full use of that damn Eden Prairie cop who had insinuated himself into this case before and then had embarrassed Sherburne in court.

  • • •

  “Mel,” Burton called his partner, Melissa Garth, over to his desk in the Eden Prairie police department. “I know we’ve been all over that crime scene, but I don’t see any choice other than to go over it again. The evidence we’ve got, while consistent with Bill Klein being the culprit, just isn’t enough to ensure a conviction. I’m still not convinced myself. And neither is the grand jury, which is resisting Sherburne’s importuning.”

  “Sherburne’s putting on a lot of pressure, huh?”

  “Yes. But I’m not going along just to get along. I’ve got to see this one through myself and figure things out.”

  “So what do you suggest?”

  “I think we need to go back to the Klein house for another look around. I know. I know. It’s been weeks and the ATF forensics team was all over that place. But maybe a fresh pair of eyes—or two—might see something. After all, the two of us didn’t do any digging around there ourselves the morning of the car bombing. We left it all to others. At least I’ll feel better if I know we took a careful look ourselves.

  “So let’s give it a go. That place was a mess after the bombing. There’s always the chance someone missed something.”

  • • •

  On the drive from the police department to Dunnell Drive on the east side of Eden Prairie, Burton brought Garth up to speed on where things stood:

  “Sherburne of course is completely fixated on Klein, especially now that he’s been embarrassed at the court hearing. But Alex Kramer and I have been trying to follow up every possible lead. Unfortunately, the only other lead we have is that unidentified third person on the fast food drive-through security video. You know, there’s that point on the video in which a third person other than Bill Klein and Olin Pirkle can be seen and appears to be alone in the vicinity of the van with the explosives.”

  “Has ATF technical support been able to further clarify the video?” asked Garth.

  “No,” said Burton. “You can only do so much with a digital video, notwithstanding what you see on TV crime shows. If the pixels aren’t there and the distance is too great, you end up with a blurry, unfocused form, no matter how much computer-whiz-bang adjusting you perform.”

  “Anything else you could do?”

  “We brought Klein’s father-in-law, George Peterson, back again and had him take another look. That didn’t help. He still couldn’t make an identification.

  “We even brought in every Insignia Construction worker listed as being on the construction site that day, not only to have each of the workers look at the figure in the video, but for Kramer and me to eye-ball them and see if any of them appeared to resemble the unidentified person.”

  “Did any of them look like that guy?”

  “Well, that’s the problem. Sure, more than one of them did look a little like the guy. But that’s because the figure is so blurry that a lot of people would look like him. Each one of them seemed pretty sure he had been busy elsewhere on the construction site and never alone at the truck.”

  “So, I guess that’s a dead end.”

  “Worse than that, at least for Sherburne. The prosecutors are obliged by the so-called Brady rule to share any potentially ‘exculpatory’ evidence with the defense. Kramer tells me that Sherburne tried to argue with the senior lawyers in the United States Attorney’s office that this video is not ‘exculpatory’ because the appearance of the third person is just a coincidence and there’s no evidence whoever it was actually took anything from the truck.

  “But even Sherburne knew that the career prosecutors in his office weren’t going to risk being sanctioned by the court for misconduct in holding the video back. And, in any event, if the case gets to trial, the prosecutors are going to use part of the video to connect Klein to the explosives at the construction site. Then the defense is going to get the rest of the video anyway.

  “And Klein’s lawyer will have a field day with that video—arguing to the jury that it was this third person who is the real perpetrator.”

  • • •

  Ed Burton and Melissa Garth stood several feet apart in the driveway at 3732 Dunnell Drive, orienting themselves to what had been the crime scene, now nearly three months ago. The broken windows of the house had been replaced, the melted blacktop had been filled in and sealed, and the burned grass had grown back in along the yard.

  Dark scorch marks remained on the trunk of the oak tree that had been near the center of the blast. The tree was mammoth, towering well above the height of the two-story house. Several of the lower branches had been broken off by the force of the explosion. But the tree had survived remarkably well, with intact healthy limbs and green leaves further up the trunk.

  Garth was exactly five-foot tall. When you’re always seeing the world from such a low vantage point, you start at an early age to wonder whether you have really seen everything that might be up on the higher shelf.

  Burton had told her that ATF had searched the tree. But there’s a search and then there’s a search. Maybe a short person’s perspective would add something here.

  “Ed,” she yelled. “Didn’t I see a ladder around the side of the house? Help me carry it over here.”

  Burton and Garth set up the ladder next to the tree. Garth climbed up slowly, scanning every limb of the tree as she paused at each rung on the ladder. When she had reached a height that paralleled the roof of the house, she still was only about half-way up the tree. The ladder had been extended as far as it would go. As Burton looked on anxiously, Garth grabbed a hold of the nearest branch and clambered still higher up the tree.

  Then she saw it. Something small, thin, and dark. It was on edge to her viewpoint, stuck in a cleft where a high branch met the trunk of the tree. It probably was only a fragment of a decayed leaf lodged in tight in the groove. Still, she’d come up this high, so she thought she might as well take a closer look.

  Garth balanced herself by leaning her abdomen against the tree, planting each foot on a separate lower branch, and grasping a higher branch with her right hand. With her left hand, she took a pair of tweezers from her pocket. Using the instrument, she plucked out a small, ragged, roughly square piece of what looked to be black fabric. Biting the handle of the tweezers between her teeth, while being ever so careful not to allow anything to touch the retrieved item, she then freed her left hand again to remove a plastic evidence bag from her pocket.

  And into that bag she dropped whatever it was she had found in the tree.

  • • •

  “Alex,” Ed Burton said in an excited voice as he poked his head into the office of ATF chief Alex Kramer. “Now I’ve always wanted to say this.” His voice took on a mock solemnity. “We’ve had a major break in the case.”

  “What do you mean?”

  “Well, Mel found a small piece of duct tape, which you know was used to attach the TNT to the Klein car. Indeed, this piece had part of the red protective coating from the TNT stuck to the sticky side of the tape. It had lodged after the explosion in the upper part of the big oa
k tree in the yard in front of the Klein house.

  “Because this narrow piece was caught in a groove in the tree, it escaped notice by anyone. And because the canopy of leaves from the upper branches of the tree hadn’t been blown off by the explosion, that tiny fragment escaped most of the weather over the past three months. It was almost pristine.”

  “Yes, yes,” Kramer said impatiently.

  “We got a print.”

  • • •

  On an unseasonably mild week day in mid-August, Lieutenant Ed Burton waited outside of St. Gregory’s Catholic Church for Candace Klein to emerge after morning Mass. After she had clasped hands with the priest, she spotted Burton. She turned away, as though she intended to walk in the other direction. Then, after a moment’s hesitation, she turned back and stepped over to him.

  “Mrs. Klein, I have something important to tell you.”

  With a sigh, she said, “All right. I guess I’m my own lawyer now, so I can’t fend you off with the ‘no-contact rule’ again. But I’ll only give you a minute.”

  “Could we go somewhere private?”

  Candace looked back at St. Gregory’s and, seeing that everyone had exited, said, “We could sit in the church for a minute.”

  After they had taken seats side-by-side in a back pew, Burton turned toward her and said, “We found new evidence at the scene. A piece of duct tape from the car bomb was lodged in the oak tree and hadn’t been damaged by the rain or water from the fire-hoses.”

  “And?”

  “We found Mr. Klein’s fingerprint on it.”

  She slowly dropped her head into her hands. She didn’t weep. She didn’t make a sound. She just sat there, covering her face. Had he really done it? she wondered. Had Bill really killed their son?

  “I’m sorry,” said Burton.