Ky. AG Staying Out Of Same Sex Privilege Issue

Aug 16, 2013

LOUISVILLE, Ky. -- Kentucky's attorney general is staying out of a dispute over whether a law exempting spouses from testifying against each other applies to same-sex couples, as prosecutors seek to force a woman to take the stand in her female partner's coming murder trial.

Assistant Commonwealth's Attorney Stacy Grieve said at a hearing Friday that Attorney General Jack Conway's office doesn't intend to offer arguments on whether Geneva Case can invoke the "husband-wife" privilege under state law for refusing to testify at the trial of her civil-union partner, Bobbie Joe Clary.

Grieve said the attorney general's office routinely defers to local prosecutors in cases in which constitutional matters are challenged in court.

"That is simply what is being done today," she said.

But attorneys for Clary and Case said the attorney general's absence reflects the weakness of the state's case in trying to compel Case's testimony.

"The fact that the attorney general's office has declined to weigh in on this issue speaks volumes," said Bryan Gatewood, an attorney representing Case.

He added that the AG's office shouldn't "outsource their responsibility on what is a very challenging and controversial issue."

The attorney general's office was not represented at the hearing in Jefferson County Circuit Court.

Allison Martin, a spokeswoman for Conway, a Democrat, said in an email afterward that the attorney general's office "is not a party to this action and it is our position that the commonwealth is adequately represented by the local prosecutor in this case."

The case looms as the first legal test in Kentucky over forcing same-sex partners to testify against each other. It also raises the broader issue of whether the state recognizes marriages or civil unions that are legal elsewhere. The case could have ramifications for issues such as divorces and division of property after death.

Kentucky voters amended the state Constitution in 2004 to say that "only a marriage between one man and one woman shall be valid or recognized as a marriage."

In a recent ruling, the U.S. Supreme Court gave the nation's legally married gay couples equal federal footing with other married Americans by wiping away part of a federal anti-gay marriage law. Another ruling the same day left in place a trial court's declaration that California's constitutional ban on same-sex marriage was unconstitutional.

Attorneys for Clary and Case say that denying them the same marital rights that others have would violate the Constitution.

Prosecutors want Case to testify because they allege she heard Clary admit to killing a man in 2011 and saw her clean blood out of the man's van and abandon it in Southern Indiana. Case has told the prosecution she will not testify, invoking the "husband-wife" privilege under state law.

The couple joined into a civil union several years ago in Vermont.

Grieve argued at Friday's hearing that such a civil union doesn't allow someone to invoke the "husband-wife" privilege.

Circuit Court Judge Susan Schultz Gibson is expected to issue a ruling later on the matter.

Angela Elleman, an attorney for Clary, predicted afterward that her client will be acquitted, whether Case testifies or not.

Clary is charged in the murder and robbery of 64-year-old George Murphy. She has claimed self-defense, saying she hit Murphy in the head with a hammer while he was raping her.

Clary's trial, set to begin Aug. 30, was rescheduled for next Feb. 7 because another of her attorneys has another murder trial scheduled to start in the coming days.

Clary is being held in jail on a $50,000 bond. As she was being led away after the hearing, she raised her bound hands to wave at Case.