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«IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS IN RE GRAND JURY SUBPOENA OF ) KIM TYSON1 ) No. ) ***TO BE FILED UNDER ...»

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

IN RE GRAND JURY SUBPOENA OF )

KIM TYSON1 ) No.

) ***TO BE FILED UNDER SEAL***

MOTION TO QUASH GRAND JURY SUBPOENA, FOR A PROMPT HEARING

AND TO SUSPEND ENFORCEMENT OF SUBPOENA

Comes now Kim Tyson, by her attorney, John D. Stobbs II, and moves to Quash Grand Jury Subpoena, For a Prompt Hearing and to Suspend Enforcement of Subpoena because requiring her to testify before the grand jury against her husband would violate Kim’s rights under the adverse spousal privilege.

Background A federal grand jury has been convened in the Southern District of Illinois to investigate alleged violations of Wilfred Carruthers civil rights by Brent Tyson who is employed as a Makanda, Illinois policeman. Attached and marked Exhibit A is the police report prepared by the Makanda Police Department regarding this incident.

The essential facts are that on March 10, 2015, at approximately 4:00 a.m. the Tyson family was peacefully at sleep. Mr. Tyson was jarred from his sleep by a noise at his front door. This is every family’s nightmare. Someone was at the front door trying to break into the house. Mr. Tyson immediately contacted the Makanda Police Department.

He then went to the door and asked the intruder what he was doing at the Tyson’ residence.

The intruder turned out to be Thomas Carruthers, an 18 year old teenager who in a drunken stupor went to the wrong house. Even though intruder Carruthers was at the wrong house he told Mr. Tyson to “fuck off,” that he was going inside to sleep. He refused to leave. Intruder Carruthers began approaching the house where Kim and their 5 year old daughter were still inside. Mr. Tyson subdued intruder Carruthers when he raised his fists to strike Mr. Tyson.

1 This Motion to Quash is similar to one I filed previously. The names and events have been modified so as to respect the privacy of the grand jury.

1 As this commotion was going on, Stan Tyson’ wife Kim and the couple’s 11 year old daughter were present, no doubt terrified about what was transpiring.

Ultimately, after law enforcement arrived, intruder Carruthers was arrested, taken away, charged with disorderly conduct, criminal trespass to real property, disobeying a police officer and resisting a peace officer. The police report reflects that intruder Carruthers’s left eye appeared red and swollen. When Officer Johnson inquired about this injury, intruder Carruthers advised the he had been in a fight earlier. No doubt because of his inebriated state intruder Carruthers could not recall with whom he had been in a fight.1 The undersigned is obviously not privy to the Government’s theory of how intruder Carruthers’s civil rights were violated by an off-duty police officer acting in a civilian capacity at 4:00 a.m. in the morning to protect himself, his property and his family. The undersigned has no way of knowing if the Government feels that the “color of law” requirement of a 1983 violation is met when a police officer is in pajamas as opposed to a uniform. Similarly, the undersigned does not know how the Government will clear the common sense hurdle of the police report indicating that intruder Carruthers claimed his injuries occurred as a result of a fight earlier in the evening, not anything Mr. Tyson or any police officer did.

But, the Government has decided to plough ahead. It believes that Kim is needed as a witness who, through the undersigned, was served with Exhibit B, a grand jury subpoena. Notwithstanding the police report and common sense, Mr. Tyson is the target of the grand jury.

The undersigned spoke with the Assistant U.S. Attorney regarding the subpoena and the AUSA originally acknowledged that Kim would not be required to testify as a result of the spousal privilege.

2 The fact that intruder Carruthers has yet to file in Jackson County, Illinois a civil lawsuit regarding civil rights violations against Mr. Tyson is striking. It’s Alice in Wonderland-like that the Department of Justice will attempt to criminally prosecute Mr. Tyson when apparently no Jackson County personal injury lawyer in a bad economy will do so civilly.

2 Thereafter, the undersigned was contacted by the AUSA who indicated that Kim would in fact be required to testify before the grand jury about matters “she observed” and people she spoke to about matters on the date in question. The AUSA indicated that he did not believe Kim could refuse to testify against Mr. Tyson for matters she “observed” or individuals she spoke to after the occurrence.

The AUSA indicated that he did not want to learn what Kim had to say for the first time during presentation of Mr. Tyson’s defense at his trial. Even though the AUSA would be prohibited at trial from cross-examining Kim about her refusal to testify before the grand jury under her adverse spousal privilege, The AUSA nevertheless wanted to “lock down” her testimony.

The undersigned advised he would speak to Kim about her testimony.

Subsequently, the AUSA contacted the undersigned and advised that Kim would have to testify before the grand jury pursuant to the subpoena. Subsequently, the undersigned spoke to Kim who advised that under the circumstances she desired to invoke her right not to testify under the adverse spousal privilege exception.





Federal Rule of Evidence 501 The original draft of the Federal Rules of Evidence (FRE) by the Judicial Conference Advisory Committee in 1974 included rules that recognized nine separate common law privileges, including spousal privilege. The individual rules dealing with privileges, however, were dropped in favor of a single rule incorporating all common law

rules of privilege. The FRE rule regarding privileges is as follows:

Rule 501. General Rule Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, state, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.

However, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the privilege of a witness, person, government, state, or political subdivision thereof shall be 3 determined in accordance with state law.

Adverse Spousal Privilege Common Law The common law has recognized spousal privileges since medieval times. Trammel v. United States, 445 U.S. 40, 47, 100 S. Ct. 906, 911 (1980) Over time the spousal privilege has evolved and until the 1930's there were three distinct privileges: 1) incompetency, 2) anti-marital facts, and 3) marital confidentiality. Trammel at 43 and 909 The number of privileges changed when the Court in Funk v. United States, 290 U.S. 371, 54 S. Ct. 212 (1933) effectively abolished incompetency as one of the spousal privileges.

Prior to this decision, courts did not allow the spouse of the defendant to testify, even if the spouse volunteered to testify on behalf of the defendant.

The two remaining spousal privileges that continue to be recognized are antimarital facts, now commonly known as adverse spousal testimony, and marital confidentiality, now referred to as marital communications.

Trammel v. United States In Trammel the willingness of the wife to testify against her husband prompted the U.S. Supreme Court to reconsider whether the privilege should be vested solely with the defendant spouse and ultimately the Court reasoned that if the witness spouse wanted to testify, there was no spousal harmony left to protect.

Elizabeth and Edwin Trammel, husband and wife, conspired to import heroin into the United States. When Elizabeth Trammel was arrested during an airport customs search, she immediately agreed to cooperate with the Government in exchange for a grant of immunity. Understandably, because Elizabeth Trammel was a cooperating Government witness, by the time of the trial, the dissolution of the Trammel marriage was well underway. At trial, Edwin Trammel objected to his wife’s testimony against him on the grounds that the adverse spousal testimonial privilege barred her from doing so. The lower court affirmed the existing rule and precluded Elizabeth Trammel from testifying.

4 Breaking with precedent, the Supreme Court unanimously held that the existing rule, which permitted someone other than the witness spouse to assert the privilege, contravened public policy. Chief Justice Burger stated the obvious by explaining, “[W]hen one spouse is willing to testify against the other in a criminal proceeding—whatever the motivation—their relationship is almost certainly in disrepair; there is probably little in the way of marital harmony for the privilege to preserve. In these circumstances, a rule of evidence that permits an accused to prevent adverse testimony seems far more likely to frustrate justice than to foster family peace.” But, the “adverse spousal testimony” privilege permits an individual to refuse to testify adversely against his or her spouse. At Trammel 53 “This privilege rests on the notion that a husband and wife should be able to trust each other completely, and that marriage is a sanctuary. The privilege is described as being ‘broadly aimed at protecting marital harmony.’” United States v. Premises Known as 281 Syosset Woodbury Rd., Woodbury, N.Y., 71 F.3d 1067, 1070 (2d Cir. 1995) (quoting In re Grand Jury Subpoena United States, 755 F.2d 1022, 1027 (2d Cir. 1985), vacated on other grounds sub nom United States v. Koecher, 475 U.S. 133 (1986)).

Kim Tyson The clever twist here is that the Government wants to call Kim to testify as to what she observed. If she observed her husband clobbering intruder Carruthers in self-defense, the Government claims that is not testimonial. That might be correct, but it would be adversarial. Forcing Kim to testify about her observations to the grand jury certainly would have a dour impact on the marriage. It definitely would not be a celebrated moment of the marriage. This fact alone meets the Trammel requirements and the discussion and debate should end there.

Even if, Kim were to testify to the grand jury that she did not observe anything, she should not be placed in a “perjury trap.” This sort of testimony would no doubt go against the Government’s theory of the case. The Government appears Hell-bent to indict an off duty officer for a 1983 violation and apparently will ramp up “color of law” to mean 5 wearing pajamas instead of a uniform. If a jury reaches the obvious conclusion and acquits Mr. Tyson, Kim has opened herself up to a perjury charge, because the Government could come back and claim to another grand jury that the other witnesses were truthful and Kim lied. Again, this would impermissibly harm “marital harmony” mentioned in Trammel.

Ripeness The Government will no doubt claim that this issue is not ripe for review and that Kim should be forced to appear before the grand jury and refuse to answer any questions by invoking her right to the adverse spousal privilege at which time the Government would seek and Order compelling her testimony.

This approach is improper and unfair for two reasons. Kim’s invocation of her adverse spousal privilege in front of the grand jury will obviously have an adverse impact on Mr. Tyson, because there will be a negative connotation of Kim invoking her right not to testify under the adverse spousal privilege. That is precisely what the adverse spousal privilege is meant to prohibit.

Likewise, as demonstrated by Exhibit C, the Government now knows that Kim will invoke her right not to testify under the adverse spousal privilege. Why waste taxpayer money, the grand jury’s time and this Honorable Court’s resources?

In A.B. v. United States, 24 F. Supp. 2d 488 (D. Md. 1998) the District Court granted the movant’s Motion to Quash because she had invoked her right not to testify under the adverse spousal privilege. So, this Honorable Court can certainly hear this Motion without forcing Kim to appear before the grand jury to answer any questions.

U.S. Attorney’s Manual Violation Of course, it would be an entirely different story if The AUSA were to give Kim immunity. Kim would still refuse to testify but the debate would be much closer. While this Honorable Court cannot require that the U.S. Attorney’s Manual be followed, it is nevertheless interesting to note that it appears these types of situations are frowned on.

Even the U.S. Attorney’s Manual recognizes the sour taste that compelling a wife to testify 6 against her husband has. It appears that there are mechanisms in place that an Assistant must meet before a wife is required, or even requested to testify against her husband.

For purposes of this Motion, the pertinent Sections of the U.S. Attorney’s Manual are found in Chapter 5 Section L.

Section L states:

Immunizing Close Family Relative of Defendant or Target states:

“Attorneys should consult the U. S. Attorneys' Manual, § 9-23.211, when seeking to immunize an individual to compel that individual to testify about a close family relative.” That section describes the factors that should be considered in determining whether to compel an individual to testify against a close family relative. That section reads as

follows:



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