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NM’s spousal privilege law back on the books

George Washington Carawan was an Old School Baptist preacher, pastor of several small churches in coastal North Carolina during the 1850s.

He also farmed, exploiting the labor of his several slaves.

He had a reputation for violence and adultery. Each time he was caught he responded with shows of penitence and renewed religious zeal. Each time his congregations took him back.

He quarreled with a young schoolteacher named Clement Lassiter. And by that, I mean he grabbed a shotgun and shot Lassiter from ambush on a quiet country road. He dragged the corpse into heavy vegetation but quickly realized he needed help to hide it properly.

So he went home and dragooned Seth, one of his slaves. He required Seth first to sling the body from a pole like a deer, then to help him carry it deep into the woods, then to dig a grave. In doing so, he made Seth an accessory after the fact to murder. In modern parlance, Seth obstructed justice by tampering with evidence.

Judith Nakamura

We know all this because Seth gave a statement that was reprinted in a pamphlet about the murder. Such insta-books were the true-crime podcasts of the era.

The day the body was found (by divine providence, the prosecutor told the jury, though more likely thanks to Seth’s guidance), Carawan panicked and fled across the state line to Tennessee.

That flight became the strongest evidence of his guilt at trial. The prosecution relied almost entirely on circumstantial evidence, since it couldn’t use Seth’s eyewitness testimony. North Carolina, like many other states before the Civil War, had a legal rule prohibiting African Americans from testifying against white people. California went even further, excluding the testimony of Native and Chinese people, too. Such rules were based on a balancing of competing social values.

On one side of the scale were justice, public safety and the rule of law, all of which require juries to have the fullest possible understanding of the facts before rendering their verdicts. But in the eyes of many Southern lawmakers and judges, such considerations paled before the imperative that white enslavers exercise complete control over their “property.”

This meant that enslavers could not only force other human beings to commit crimes on their behalf, but also prevent them from atoning for their acts by telling the truth in a court of justice.

In 2002, over in Clovis, David Gutierrez II shared the Rev. Carawan’s choice of weapon, using a shotgun to kill his unsuspecting victim, Jose Valverde. Then, when he needed to dispose of evidence, he, too, went home and got help, dragooning his wife into the effort to obstruct justice.

At the murder scene, he told her things that made clear he was responsible for Valverde’s gruesome death.

When Gutierrez was finally brought to trial, 15 years later, the prosecution called his by-then ex-wife as a witness. The parallels with the Carawan case continued as he asserted his legal right to prevent her from repeating what he had told her.

Shannon Bacon

New Mexico’s longstanding spousal privilege provided that one spouse could prevent the other from testifying about private conversations. Bizarrely enough, the privilege didn’t terminate with divorce. One ex could control what the other ex said in court.

In her 2019 opinion affirming Gutierrez’s murder conviction, New Mexico Supreme Court Justice Judith Nakamura pointed out that “90% of spousal privilege cases involve wives testifying against husbands,” a figure that shouldn’t surprise anyone.

Some might find it startling that in the 21st century New Mexico had a legal rule that gave an ex-husband continuing control over the speech of his ex-wife, and which further denied a woman the power to decide for herself whether to speak (in legal terms, she couldn’t waive the privilege).

But such was the law in New Mexico until Justice Nakamura’s opinion abolished the privilege. And, almost unbelievably, it’s once again the law today, because the Supreme Court had a change of personnel in 2019.

David Thomson

Two justices who joined Justice Nakamura’s opinion left the court. Two new justices, Shannon Bacon and David Thomson, came aboard. After the opinion was issued but before it was finalized, the new justices intervened to reopen the case. They reinstated the spousal privilege with all its overtones of human ownership.

Justices Bacon and Thomson both ran in contested elections this Nov. 3. They waited until Nov. 5 to release their order reestablishing the authority of men to prevent their wives and ex-wives from telling the truth in a court of justice.

As for the Rev. Carawan? After all-night deliberations, his jury found him guilty. He pulled out two single-shot pistols and shot first the prosecutor, then himself. The prosecutor survived.

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at


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