This week, Judge Mary Dimke of the United States District Court for the Eastern District of Washington issued an interesting ruling. In United States v. Bolen, she rejected spousal immunity in a criminal case where she believed the couple got hitched for evidentiary rather than romantic reasons.
Spousal immunity has long been a thing of legend in the courts and cinema. In Arrested Development, you had the prototypical scene:
“Michael: Why didn’t you just put me in charge?
George Sr.: Michael, listen to me! These guys, the SEC, they have been after me for years. If I had put you in charge, you would be wearing one of these orange jumpsuits too.
Michael: I could have helped you—
George Sr.: You’d be an accomplice! No. It had to be your mom. [conspiratorial whisper] They cannot arrest a husband and wife for the same crime! [winks at Michael]
Michael: …Yeah, I don’t think that that’s true, Dad.
George Sr.: Really? [facepalms] …I have the worst f[bleep]ing attorneys.”
In reality, there are exceptions as in cases where the two spouses are adverse parties. However, as shown in Bolen, the court can reject the privilege if it believes the marriage is a sham.
Judge Dimke noted that the inquiry into an alleged sham often looks at the timing of the marriage in proximity to the case. In this case, the timing was a bit too perfect for the court’s taste. Here is how the court laid out the facts:
“Defendant Greer and MacGregor began dating in July 2015 and quickly moved in together because MacGregor had been homeless. Defendant Greer was arrested and detained on state charges, which form the basis for these federal charges, on January 15, 2022. MacGregor was interviewed by law enforcement shortly after Defendant Greer’s arrest and made several incriminating statements about him.
On January 22, 2022, in a recorded jail phone call, Defendant Greer told MacGregor she needed to eat in order to keep up her strength because she is “going to be working [herself] to the bone” to get him “out”; she responded by inquiring how much a marriage license costs.
While the state case was pending, Defendant Greer and MacGregor repeatedly discussed the need to get married, the need for the prosecutor to be informed of the marriage, and the urgency for the marriage to occur. For example, on April 2, 2022, Defendant Greer, believing he received confirmation that they can marry, stated “the sooner [it occurs] the better.”
On April 5, 2022, which appears to be the day a pretrial conference was held in his state case, Defendant Greer and MacGregor engaged in the following conversation:
Defendant Greer: I was calling to let you know I just got the response from the marriage coordinator and of course the prosecutor denied it, claiming you were a state’s witness. I have to wait for the paperwork from the law library so that I can resubmit the application. . . . I can resubmit it stating you cannot be a state’s witness.
MacGregor: Okay and then she will have no choice but to let us get married?
Defendant Greer: Yeah, pretty much. . . . I might have to talk to my attorney about it first.
MacGregor: Why would you have to talk to your attorney about it?
Defendant Greer: So that he can inform the prosecutor.
Defendant Greer and MacGregor married, over a recorded jail call, on May 8, 2022. His state trial was scheduled to begin June 13, 2022. “
The court found that:
“On the surface, the timing of the marriage is inherently suspect. After roughly six-and-a-half years together, Defendant Greer and MacGregor engaged in an effort to marry and eventually married only after Defendant Greer’s arrest on January 15, 2022, and after MacGregor made incriminating statements about Defendant Greer to law enforcement. {Notably, MacGregor did not testify as to any demonstrated intent to marry prior to Defendant Greer’s arrest.}
Following Defendant Greer’s arrest, recorded jail calls indicate Defendant Greer’s apparent newfound preoccupation with getting married and MacGregor’s apparent desperation to mitigate the potential legal damage of incriminating statements she made about Defendant Greer to law enforcement. Seven days after his arrest, Defendant Greer told MacGregor she needs to keep up her strength because of how hard she will have to work to get him out of custody. She responded by asking how much a marriage license costs. While the timing of the marriage is “only one” of the factors the Court must assess, the totality of the evidence, as discussed below, strongly weighs in favor of finding the marriage was designed for the purpose of MacGregor avoiding having to testify.”
The court details how Greer bad-mouthed MacGregor to a friend about her “bitching” and how she is a “little psycho.” The court notes that all marriages can have such moments and notes that courts are reluctant to judge the content or compatibility of a marriage. United States v. Sims, 755 F.2d 1239, 1243 (6th Cir. 1985) (“We do not believe that courts can or should ‘assess the social worthiness of particular marriages or the need of particular marriages for the protection of the privilege.’”); United States v. Ingersoll, 2015 WL 5968750, at *1 (E.D. Mich. Oct. 14, 2015) (“The testimonial privilege applies with equal force to challenged marriages as it does to model marriages.”).
However, it still finds that the marriage was not made in heaven but in a holding cell and:
finds only that, based in part on the text messages referenced above, Defendant Greer did not have a bona fide intention to marry MacGregor prior to his arrest. Looking only to Defendant Greer’s motive, the messages in the record plainly suggest that “the purpose of the marriage was for the purpose of invoking the marital privilege.”…The calls reflect that, to Defendant Greer, the marriage was inexorably linked with his prosecution: Defendant Greer repeatedly was preoccupied with making sure the state prosecutor was aware of it. As with the text messages, the calls plainly suggest that “the purpose of the marriage was for the purpose of invoking the marital privilege.” …
The Court finds MacGregor’s testimony decidedly not credible. She repeatedly invoked equivocal phrases—such as variations of “I do not recall” and “I do not remember”—at least ten times on cross-examination. In the Court’s view, it was implausible for MacGregor not to remember details and conversations that were unambiguously memorable, based on the content of her calls with Defendant Greer….
The Court does not take lightly the task of assessing whether a marriage was entered into in good faith or for the purpose of wielding it as a shield in a criminal prosecution. However, the totality of the evidence compels the conclusion that Defendant Greer and MacGregor’s marriage was “for the purpose of using the marriage ceremony in a scheme to defraud[.]” …
That could put a damper on Hollywood scripts about the “loophole” of spousal immunity:
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and the author of “The Indispensable Right: Free Speech in an Age of Rage.”