Thursday, November 03, 2005

Wilson & Glover: (P^⌐P)?!!?

The Indiana Supreme Court came out with two spousal privilege cases today: State v. Wilson, No. 49S05-0501-CR-6 (Ind. 11/2/05) and Glover v. State, No. 49S02-0502-CR-56 (Ind. 11/2/05).

Before getting to the (serious) problems with the cases, Wilson finally takes care of an even more awful case, Hilton v. State, 648 N.E.2d 361 (Ind. 1995), in which Justice Selby, in her very first opinion, said that a lawyer who says, "I believe the witness will testify to X" does not make a sufficient offer to prove to preserve anything for appeal. The "I believe" was, according to Justice Selby and a unanimous court, insufficient. Hilton also placed other unreasonable and even silly requirements on offers to prove; and Wilson takes care of those too.

Hilton qualified, actually, for membership among the Blatant Indencies in the sidebar, and not just for its treatment of offers to prove. I've been waiting for its demise, in whole or in part, for 10 years.

Wilson is extraordinary, because it actually invalidates an entire code section because, the court says, the section was a "mistake" when considered together with the purpose of an entire recodification as that purpose was expressed in another section. (The alleged purpose of the recodification was not to change existing law.) The court tries to put the "mistake" off on the Commission on Recodification and its staff. One problem with this at least is that it is impossible to say which section, substance or purpose, is the "mistake," assuming there is one.

If you think about it, Wilson has a great deal in common with Justice Breyer's remedial opinion in Booker. It declares "ineffective" a statute properly passed into law that would not be "ineffective" if properly passed again into law tomorrow.

Glover says, without much ado, that either spouse can waive spousal privilege--which is to say, it pretty effectively does in the privilege. ("We think both the statutory language and a more realistic view of the reasons for this privilege support the conclusion that either spouse may waive the privilege.") That also does in 100 plus years of pretty well-established law, I think. Well, Ok.

At least one problem, though, is that the spousal privilege statute was part of the same recodification of the 1881 Civil Code as the statute at issue in Wilson. In Wilson the court takes the extraordinary step to invalidate a statute, because the statute changed the law when the purpose of the recodification was to not change the law. Then in Glover, the Supreme Court re-interprets a statute to change 100 years of law, even though it has just said in another opinion that it was the express intent of the General Assembly to not do that?

There is an additional problem with Glover. Maybe it is not so much a problem as simply something that ought to be discussed. There is a collision of two pretty well-established rules. On the one hand, priveleges are to be construed narrowly, which Glover says. But Glover also says that the common law rule was that either spouse could prevent the other from testifying. So the spousal privelege statute is in derogation of the common law. Statutes in derogation of the common law are also to be strictly construed and limited, to the extent possible, in their departure from the common law. Nothing in the spousal privilege statute suggests, much less requires, a change in the common law rule that either spouse may prevent the other from testifying.

I am not saying that there might not be a rational way to reach the same results in both Wilson and Glover. But they cannot both be right as written--except, perhaps, to the extent that they are decisions adverse to criminal defendants.

It is truly fascinating how little dissent there is on this court, even when pitching a century of law out with the . I doubt you could pick five lawyers randomly who would agree about the outcome, much less the means of getting there, in either of these cases. And we have five justices appointed by three governors over 15 years.

It would be a pretty interesting experiment, it seems to me, to give five top-notch Indiana lawyers the problems presented by these cases, have each do the research, and then write a hypothetical majority opinion. Then have them swap the opinions and have a vote. I understand that's not how opinions get written, but it might still be instructive, if not illuminating.

I read these cases and feel like the rat who's shocked no matter what door he opens--nuts.

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