Federal Practice in the Law Clinic
By Wes Barnum
Many law students have asked what Law Clinic is all about. Are the cases interesting? Let me tell you, I had challenging cases assigned over this past summer, two of which carried into my directed internship this semester.
The first case involved a client that was charged with a misdemeanor marijuana related offense. Of course, it cannot be that simple. The client had just entered a diversion on another matter weeks earlier. This case helped bring what I had learned in criminal procedure to life in a real setting. We first explored the validity of the car stop, search and arrest. We then discussed a strategy on how to negotiate with the prosecuting attorney incorporating our analysis of the search issues, yet at the same time knowing that the client had recently received what the prosecutor considered to be a break. After several attempts to negotiate with the prosecutor, we finally reached a plea agreement. We were able to limit our client's jail exposure. More importantly, we were able to help our client get much needed help to address an underlying problem. If you are wondering what our strategy was, well, you will have to enroll in the Law Clinic to find out.
The second case was an unusual matter that began with a phone call from the spouse of a defendant that had been arrested on federal drug and weapons charges. It was not the defendant presented an opportunity to practice in U.S. Federal District Court. The spouse came to us because she did not want to testify in the criminal prosecution filed against her husband. She was also scared of the prosecutor's office and could not afford to hire counsel. In the beginning, we were not sure where this case would lead. To begin with, the client wanted to assert a spousal privilege against testifying. However, the client told us that she and her husband were never ‘officially' married. Not married? It is tough to claim spousal privilege if you are not married. Of course, this prompted us to explore common law marriage in Kansas. We discovered that Kansas does recognize common law marriage. In fact, we were able to provide documentary evidence to prove the existence of a common law marriage. Consequently, the Assistant U.S. Attorney, in response to a motion to quash we filed, stipulated that our client and the defendant did have a common law marriage. We were able to argue our motion to quash subpoenas at a hearing held in U.S. District Court. Our argument was based on our client's right, as a spouse, to refuse to testify against her husband. We found that federal common law recognizes two marital privileges. One privilege, confidential marital communications privilege, protects communications privately made between spouses. The second privilege, adversarial spousal testimony, allows a spouse to refuse to testify against the other spouse even if communications were made in the presence of a third party.
How did our argument turn out? Well, the judge split our issue into three parts, taking two of the issues under advisement and ruling in our favor on the third.
I never imagined that my Law Clinic experience would take me into federal court. Law Clinic helped bring what I have learned in law school into perspective through hands-on experience. Additionally, it is hard to describe the feeling you get when your clients tell you how thankful they are for the representation that was provided for them.
