Articles

Los Angeles Daily Journal
Thursday, November 8, 2001

MARITAL PRIVILEGE STANDS DESPITE SEPARATION

By: Amy Tatko, Daily Journal Staff Writer

The wife of a man on trial for murder may claim marital privilege to avoid testifying against him, despite the couple's 17-year separation, an appellate court ruled Wednesday.

A 2nd District Court of Appeal panel reversed the trial court ruling and decided that Susan Jurcoane will not need to take the stand in her husband's trial.

Los Angeles Superior Court Carol S. Koppel ruled last month that the Jurcoanes' marriage is "moribund" and said, "There is no marriage in the sense of a real marriage between these parties."

The appellate court said that the viability of the marriage is not for the courts to decide. Only the Legislature can make changes to the statue to specify when the marital privilege does not apply to legally married people, the appellate decision said. Susan Jurcoane v. Superior Court of Los Angeles County, B152000 (Cal.App.2nd Dist. Nov. 7, 2001).

Evidence Code Section 970 states that "a married person has a privilege not to testify against his spouse in any proceeding." The intent of the marital privilege is to protect marriages from the disruption that testimony could create, according to the code.

Josif Jurcoane is charged with two counts of first-degree murder in the July 4, 1984, killings of his boss and his boss's domestic partner. He faces life in prison without parole if convicted.

According to court documents, he confessed to his wife soon after the shootings. In a statement of law enforcement officers, Susan Jurcoane said that she heard shots and, a short time later, her husband rushed into their house and said, "I shot them both. I need to get some clothes. I have to go."

Josif Jurcoane fled to Mexico, leaving his wife and three young children behind. The husband and wife didn't see each other for 17 years and never got divorced. Josif Jurcoane was arrested in Mexico in April and was extradited to Los Angeles to stand trial.

Attorneys on both sides of the appeal said the appellate decision was not surprising, though they disagree on the issue of Susan Jurcoane's right to invoke marital privilege.

"We had always felt that it's a matter for the Legislature to determine, particularly in light of the plain language of the statute," said Joseph A. Pertel, an attorney representing Susan Jurcoane on appeal. "There's always tension over privileges, because they deny one party evidence."

Privileges are legislative creations, and changes to them also must come directly from the Legislature, Pertel said.

Wednesday's decision has an impact beyond just marital privileges, he said. If this writ had been denied, it could have had ramifications for other privileges, such as attorney-client and doctor-patient, Pertel said.

Yet, the deputy district attorney who argued against the appeal, Patricia Martinez, said the rationale of the legislative intent of the statute on marital privilege supported her side of the issue. The privilege is intended to protect marriages from courtroom testimony, Martinez said, and, in cases where the marriage essentially is nonexistent, the use of marital privilege is illogical.

"The marriage was on paper only, as far as these two were concerned," Martinez said. "This marriage was clearly not viable, and I don't think it was one worthy of protection."

No date has yet been set for Josif Jurcoane's trial. Although Martinez acknowledged that Susan Jurcoane was "the best witness that we could have had," Martinez said the district attorney's office has "other options to pursue at this point" in building a case. She would not say what those options are.