No Spousal Privilege In Alleged Crime Against Child

The Louisiana Supreme Court has held that the spousal privilege is trumped by statutes that protect children from abuse.

On January 30, 2018, the target of the grand jury investigation was charged by Bill of Information with one count of molestation of a juvenile, a violation of La. R.S. 14:81.2, arising from an incident in 2003 in which he allegedly molested his children’s babysitter. The target was subsequently arrested and pled not guilty. Following the District Attorney’s voluntary recusal, the Attorney General stepped in as District Attorney ad hoc and dismissed the charges, choosing to proceed by seeking a grand jury indictment. In conjunction with the grand jury proceeding, the state issued a subpoena to Jane Opperman, the target’s wife, to appear before the grand jury. Mrs. Opperman filed an “Affidavit of Spouse” wherein she asserted “her lawful privilege to refuse to give evidence in any criminal proceeding against her husband, pursuant to Louisiana Code of Evidence article 505.” The state subsequently filed a “Motion to Determine Applicability of Spousal Privileges,” arguing the privilege does not apply when a spouse is charged with a crime against the person of a child.

Holding

Because the spousal witness privilege was created solely by the legislature, it can also be modified or withdrawn. See Bellard, 533 So. 2d at 965 (citing State v. Smith, 489 So. 2d 255 (La. App. 5th Cir. 1986) and State v. Fuller, 454 So. 2d 119 (La. 1984)). The legislature has provided for such abrogation in La. R.S. 14:403(B). Based on the facts of this case, we hold that under La. R.S. 14:403(B), Mrs. Opperman is not entitled to assert the spousal witness privilege at a grand jury proceeding targeting her husband.

Background on the controversy is described by WBRZ 2 

Small town scandal became dirtier in the last few days when the ex-wife of the West Feliciana district attorney filed suit against her former divorce attorney in a fight over airing dirty laundry.

In court filings obtained by WBRZ, Kelly Ballard, the now ex-wife of District Attorney Sam D’Aquilla, wrote her lawyer broke her trust and attorney-client privilege. Ballard believes the divorce attorney, David Opperman, used her divorce as leverage.

Ballard said Opperman exposed her torrid relationship with her ex-husband when he discussed allegations of abuse, “sexual affairs and planting of evidence” by D’Aquilla.

Opperman accused D’Aquilla of having a sexual relationship with the former coroner, destroying evidence in other criminal cases and of being under investigation by federal authorities.

“The D’Aquillas are the gift that keeps on giving,” Opperman said in a statement to WBRZ’s Investigative Unit. Opperman said, “you just can’t escape these people.” In a phone call with Chief Investigator Chris Nakamoto Tuesday, Opperman denied the allegations in the lawsuit.

Ballard’s marital issues were revealed in court documents highlighted in a previous WBRZ report where Opperman asked that D’Aquilla be recused from prosecuting him in a separate criminal case.

D’Aquilla and Opperman, have been political adversaries – Opperman accusing the D.A. of wrongdoing as D’Aquilla attempted to prosecute a 15-year-old abuse case against Opperman.

Opperman was arrested in December 2017, accused of molesting a teenage girl in 2003. He has denied the allegations.

The Louisiana Attorney General dismissed the charges in November but said a grand jury will convene to hear evidence in the case presented by state attorneys.

The dismissed charges were from D’Aquilla’s attempt at prosecution. He recused himself from the case, moving it to the attorney general.

In the latest court wrinkle, Ballard, the D.A.’s ex-wife, also accused Opperman of malpractice.

Opperman ran for district attorney against D’Aquilla in 2014 and lost.

Baton Rouge attorney Jill Craft is representing Ballard, the ex-wife.

The alleged molestation took place in 2003. (Mike Frisch)