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Page 10 POST-GAZETTE, MAY 13, 2011 David J. Saliba Attorney at Law Can A Wife Be Forced To Testify Ag inst Her Husband? COMMONWEALTH vs. LEONARD SZERLONG SJC-10635 SUPREME JUDICIAL COURT OF MASSACHUSETTS May 3, 2010, Argued September 14, 2010, Decided OPINION GANTS At approximately 2 AM on December 13, 2007, the defendant entered his girl friend's home, grabbed her by the throat while she was asleep, and held a knife to her throat. On December 21, 2007, the defendant was charged in a criminal com- plaint with assault and battery, assault by means of a dangerous weapon, and home invasion, and a war- rant was issued for his arrest. "The defendant and the victim had not been engaged to marry at the time of the assault, but tb.ey were married on January 5, 2008, at the North Attleborough town hall. On January 15, the defendant voluntarily surrendered himself to the court and was arraigned. At the dangerousness hearing on January 23, the victim testified that she was mar- ried to the defendant and invoked her spousal privi- lege. She continued to in- voke her spousal privilege, and refused to testify at trial. Under the spousal privi- lege law the spouse may not be compelled to testify in any criminal proceed- ing brought against the other spouse Massachusetts General Laws Chapter 233 Section 20. In this case the Court said: The defendant knew that, as a result of the marriage, the victim would be entitled to the spousal privilege, and that the victim intended to. exercise the privilege because she did not want her testimony to cause his conviction. Even if the idea to marry originated with the victim, the defendant agreed to marry, and the victim's spousal privilege existed only because of this agree- ment. In these circum- stances, the judge was entitled to infer that the defendant intended to make her unavailable to testify by agreeing to marry her. The judge did not need find that making her unavailable as a witness was the defen- dant's sole or primary pur- pose in. marrying her; it is sufficient that it was a pur- pose in marring her, to establish forfeiture by wrongdoing, sufficient for prosecution to prove that "wrongdoing was at least partially intended to procure the declarant, his wife's, unavailability. This case says that in a criminal case a wife cannot be forced to testify against her husband. However if you marry her to keep her from testifying against you, her privilege is gone. Michael Flaherty (Continued from Page 2) than to live in fear. We need to do more." Flaherty said that the most shocking violence in Boston is almost certainly drug re- lated. "We have in this city an epidemic of substance abuse," he said, "particularly among our young people. Alcohol and illegal drug use are decimating children and whole families. From East Boston to Hyde Park, from South Boston to Brighton, no neighborhood has been spared. Yet I see little in the way of a prioritized, compre- hensive strategy to rid our city of this .scourge," he con- tinued. "I said it before and I will continue to say it: We cannot ask the police to arrest our way out of this problem. We need to make this an issue of the highest priority and we need to do it now." Flaherty said he and his wife have children in Boston public schools and recognize that the quality of the city's educational system, perhaps more than any other issue, will determine whether Boston grows and prospers or will face the kind of down- turn and decline that has come to characterize so many urban centers in our nation. "School assignment policy is like a lottery scratch ticket," he said, "but it's our children's futures that are being gambled. I want to re- turn to the council and help lead efforts to work with the mayor and the school depart- ment to ensure that every child in Boston will have a quality public school educa- tion. This is not something we should think of as an op- portunity or a privilege. A quality public school educa- tion t!at will put college within reach, and equip our children with the skills tO succeed in the 21 *t century economy, is a basic right, and we must work harder to make it a reality." Flaherty also pointed to an opaque and unpredictable city development process, stalled projects, and high housing costs as other is- sues which demand the at- tention of city government. "A huge crater still sits in the middle of Downtown Crossing, a symbolic hole in the heart of the city. Deals continue to be made without the benefit of full disclosure, with certain favored devel- opers being routinely green- lighted for projects that are often not in the best inter- ests of our neighborhoods. On every important develop- ment decision, anyone who disagrees with the current administration is margin- alized and vilified," Flaherty said. "Two years ago we were told that things were going to be different. But now that a fifth term is in the bank, it seems to be back to busi- ness as usual. Frankly, it's time for the city council to put some heat on the mayor. It's what democracy is about." "I am running for council again not just to challenge the mayor's policies," Flaherty said. "I look forward to working cooperatively with anyone and everyone who has the ultimate best interests of our city at heart and, despite the substantive policy disagreements we have had in the past, I know that includes the mayor. But" our city-and its residents desperately need in City Hall an alternative voice." Asked if a council run was merely a precursor to a pos- sible 2013 repeat run for mayor, Flaherty demurred. "I am running for Boston City Council in 2011. Period. I want to be back in City Hall as ar,active, engaged and independent member of the city council, and at the heart of the debate about how we make sure Boston is a city that works for everyone. That's why I'm running and that's all I am focused on right now," he said. "While other opportunities may present themselves in the future, running for mayor is a huge commit- ment. It took. a great toll on me and my family in 2009. I know I can help make Boston better as a city coun- cilor, however, regardless of who the mayor is." "If and when the appropri- ate time comes, I will assess future political options then. But right now, it is my goal to win election to the Boston City Council in November and to get back to work for the people of Boston." Michael F. Flaherty is a former at-large member of the Boston City Council, serving five two-year terms beginning in January of 2001. He was elected City Council President by his peers in 2002, 2003, 2004, 2005 and 2006. He did not run for re-election in 2009, instead choosing to run for mayor of Boston, challenging incumbent Thomas M. Menino. Flaherty is a South Boston native and resides there with his family. He and his wife, Laurene Flaherty, have four children. Flaherty turned 42 in May of 2011. He is a graduate of Boston College High School and Boston College, and earned his law degree from Boston University School of Law. Prior to being elected to the Boston City Council in 1999, he served as an assistant district attorney in the Suffolk County District Attorney's Office. Flaherty is an attorney, cur- rently working in the Boston office of the law firm of Adler, Pollock & Sheehan. SHiNEDOWN -- SOMEWHERE IN THE STRATOSPHERE (2-CD-2-DVD) Atlantic Stiinedown lives up to their name with this live, multi-disc CD/DVD collec- tion -- Somewhere In the Stratosphere. Included is material filmed and recorded on Shinedown's two epic 2010 headline tours: the inaugural "Carnival of Mad- ness" Washington State tour, and the highly praised "Anything & Everything" live from Kansas City acoustic tour. The latter featured stripped-down versions of both chart-topping hits and fan favorites, alongside inti- mate conversations with the audi.ence about the stories behind the songs. Check out the energy of Shinedown's electric show and the inti- macy of their acoustic sets with a CD/DVD dedicated to each tour. Shinedown with 3+ hours and 33 songs on 2 CDs/DVDs. BOB DYLAN DON'T LOOK BACK (2-Blu-ray)/Docurama Documentary filmmaker D.A. Pennebaker filmed Bob Dylan during a three-week concert tour of England in the Spring of 1965, not real- izing he was creating one of the 1960s most iconic feature films. Pennebaker sought out both the public and private Dylan using unobtrusive equipment and rare access to achieve a fly-on-the-wall view of one of the most influential musicians of any era. This Blu-ray edition has bonus material from 65 Revisited, with an hour-long behind the scenes look at Dylan. (1 hr. 36 mins.) THE OTHER SIDE OF THE MIRROR -- BOB DYLAN LIVE AT THE NEWPORT FOLK FESTIVAL (Blu-ray) ColumbiaLegacy Few performances in his- tory are as legendary -- or as controversial -- as Bob Dylan's 1965 appearance at the Newport Folk Festival. In a single, galvanizing in- stant, Dylan plugged an entire generation in, for- ever changing not only the way music was made, but also the way-it was heard. Join the audience for Dylan's Newport perfor- mances from 1963 through 1965 and 17 performances, as director Murray Lerner is able to capture Dylan's metamorphosis from folk prodigy to rock's fiercely con- frontational poet who would electrify and inspire an entire nation. (I hr. 23 mins.) ACCORDING TO JIM: THIRD SEASON (4-DVD) Lionsgate Jim Belushi stars in the third season of ABC's breakout family series Ac- cording to Jim. In this tradi- tional blue-collar family com- edy, he is the quintessential guy and family man. Proud of his Midwestern values, Jim is an accessible and likeable everyman. He and his attractive wife Cheryl (Courtney Thorne-Smith} are crazy about each other and know they're in this marriage for keeps. Cheryl, gorgeous and smart, call Jim on his childish antics but enjoys the playful banter and appreciates his passion, honesty and steadfast loy- alty to her and the kids. (10 hrs. 25 mins.) ELMO'S TRAVEL SONGS & GAMES (DVD) Warner Home Video Elmo, Abby and Elmo's dad Louie are on a road trip, but Elmo feels like it is taking a very long, long time to get there. What's a little mon- ster to do? Elmo's dad shows them there are lots of fun games to play, stories to tell and songs they can sing to pass the time. This DVD is full of activities to occupy your child's attention, espe- cially when traveling. New songs are, "Go Before You Go" and "Are We There Yet?" along with Clips about buck- ling up and different modes of transportation, watch it before your trip! (47 mins.) DROP DEAD DIVA: SECOND SEASON (3-DVD) Sony Pictures Home Entertainment For Jane Bingum (Brooke Elliott), life really is more wonderful the second time around in this wild second season of the breakthrough comedic drama hit. Just when she's ready to move on from her former existence as a shallow wannabe model and accept her sudden rein- carnation as a plus-size, brilliant at.torney, Jane gets thrown a whole new set of curves. Jane must now chart a bold, new future for herself, despite the obstacles presented. (9 hrs. 29 mins.) HUMAN PLANET (3-DVD) BBC Earth This is the original BBC version of Human Planet, narrated by John Hurt, with three hours of scenes never broadcast in North America. This landmark eight-part series is a breathtaking cel- ebration of the amazing, complex, profound and some- times challenging relation- ship between humankind and nature. Humans are the most successful species on the planet. From the frozen Arctic to steamy rainforests, from tiny iMands in vast oceans to parched deserts, people have found remark- able ways to adapt and survive in the harshest places imaginable. 80 sto- ries, many never filmed before, together revealing the vast resourcefulness and cunning of people facing extreme adversity. (6 hrs. 40 mins.)