In July 1976, a man was convicted in Denver of conspiring to import and of importing heroin. Nothing unusual about that. In this case, however, the only testimony implicating Otis Trammel Jr. was his wife's.
Yesterday, the Supreme Court granted Trammel's plea to review an appeals court ruling upholding the conviction, which the government obtained in U.S. District Court.
The trial judge committed reversible error in letting Elizabeth Trammel testify against him over his protest, his lawyer contends. Disagreeing, the government argues that "the sole issue" is whether Trammel could use the so-called marital privilege to prevent his wife -- a participant in the conspiracy -- from telling the jury about his role in it.
The case divided the 10th U.S. Circuit Court of Appeals.
For the majority. Judge James E. Barrett said that the privilege couldn't prevail against the incriminating testimony of a spouse who has been granted immunity. He also found it "inconceivable that the Trammels established a 'home' with any of the usual, ordinary attributes of 'family life.'
"There was no domestic harmony in the commonly accepted nature of a marital relationship to be preserved following commencement of the criminal activities in August 1975," Barrett wrote.
"Beyond this," he said, "the nature of the criminal activities pursued are despicable and completely alien to anything conducive to the observation of a family relationship built around the legal status of a marriage." There was no "family peace" that her testimony could alienate, he added.
The dissenter agreed that Trammel didn't appear to be "a person deserving of great sympathy," but saw troubling implications in the majority ruling. Tomorrow's case may involve a financially troubled couple who appear to be model spouses but are accused of conspiracy to file a false tax return," Judge Monroe G. McKay wrote.
"Today's rule articulates an unsound policy to the extent that it gives the prosecutor discretion to determine which home shall be worth saving and which home shall not have the benefit of the common-law privilege" in which a husband or wife cannot be made to testify against the other, McKay said.
"... the home is, after all, a more important contributor to law and order than is prosecution," McKay said. "If the homes fail, no number of prosecutions, judges, or jails could stem the tide of ensuing crime." He added:
"While the home is perhaps far from an ideal one, the principle established in this case applies to all accused couples and makes us unwitting partisans in the continuing assaults on the stability of the home... the root of true stability in any society."
Unlike the majority, McKay found nothing in the record to support the contention that Otis and Elizabeth Trammel "did not have a 'home,' that they had no 'family life,'..." Presumably, he said, the majority view is "that spouses who commit crimes are incapable of achieving a harmonious marriage." He is not convinced such a view is sound.
The Trammels were married in 1975, when he and two codefendants were serving at an Air Force base in Manila. The conpiracy involved importation of heroin from Thailand. Enroute to the United States with some of the drug hidden under clothing, Elizabeth was caught by a customs agent and agreed to cooperate with the Drug Enforcement Administration in exchange for a grant of immunity.
Sources said that she planned to seek a divorce after the trial. Her husband, now in his late 20s, received an indeterminate sentence under the Youth Offenders Act.