Marital privilege gets man new trial

PORTLAND – A Bend-area man whose wife’s testimony helped convict him of fraud will get a new trial, thanks to a ruling by the 9th U.S. Circuit Court of Appeals that could have significant impact on marital privilege rights.

The appeals court overturned James Montgomery’s conviction Wednesday, saying both a husband and wife must waive their right to marital privilege before one of them discloses any details of private conversations.

The ruling “clarifies an area in which the law was unclear, and it also vindicates the right to privacy and illustrates the respect the law has for the marital relationship and its protection against government intrusion,” Mark Weintraub, an assistant federal defender in Eugene who represented Montgomery, told the Oregonian newspaper.

Montgomery, former president of Sun Village Realty, and his sister, Mary O’Connor, an attorney and secretary of the company, were convicted of conspiracy and mail fraud for diverting $184,814 in rental income and mailing the homeowners monthly statements that omitted the rentals.

Montgomery and O’Connor have been free while their convictions were appealed to the 9th Circuit.

Assistant U.S. Attorney William “Bud” Fitzgerald declined to comment on whether Montgomery would be tried again or whether the court’s ruling would be appealed.

The appellate court ruling, written by Judge Alfred Goodwin, notes that 33 states, including Oregon, and the District of Columbia already allow a spouse to keep his or her mate from testifying about private conversations.

“We hold that either spouse may assert the privilege to prevent testimony regarding communications between the spouses,” the court wrote. “Vesting the privilege in both spouses recognizes that allowing the communicating spouse to disclose one side of a conversation would eviscerate the privilege.”

Fitzgerald said Louise Montgomery – who testified in exchange for immunity from prosecution – was a key witness.

In addition to listening to Montgomery’s testimony, jurors also learned about a handwritten letter she wrote to her husband about O’Connor. In it, she tells her husband that if he cannot stop O’Connor, she would take it upon herself to do so.