Ex Post Facto Clause and Witness Testimony
Southern Comfort, Home Cooking

No Bill of Attainder Violation?

Another issue addressed in Palmer v. Clarke was whether the state's changing a rule of evidence, which allowed Palmer's spouse to testify against him, was a bill of attainder.  (It wasn't an ex post facto violation.)  I'll give you the evidence: tell me what you think.

    * When discussing whether to change the law, there were "frequent references to Palmer."  Slip op. at 12. 
     * "The state senator from the victim’s district and the prosecutor in Palmer’s case specifically cited the reversal of Palmer’s second conviction as a justification for" the change in the law.  Id. at 13.
     * On the legislature's floor during the debates, "Senator Peterson reiterated his personal appeal on the floor of the Unicameral and distributed a news release from the Hall County Board reflecting community sentiments towards Palmer." Id.

The panel found this evidence unpersuasive, or inconclusive. 

On its face, L.B. 696 makes no reference to Palmer and is generally applicable to all cases in which a crime of violence is alleged. Rather than distinguishing between persons charged with a crime, it appears to distinguish among criminal prosecutions in which the marital privilege is applicable. Thus, there is no way to determine which individuals were “ineluctably designated” by L.B. 696 for punishment. Notwithstanding the frequent references to Palmer in L.B. 696’s legislative history, we cannot say that this fact alone renders the state court decision unreasonable.

Id. at 12.  Wow. 

I would have appreciated some judicial courage.  The panel should have concluded that the law targeted Palmer, whose convictions were twice reversed; and whose conviction would not occur without his wife's testimony.  I'm not sure what the remedy should have been.   The law, after all, was generally applicable, so I'm not sure that the court should have stricken the law.  And, though unfair, the law is not punitive.

But the panel should have opened its eyes: the law was enacted so that the state could convict Palmer.  Indeed, the judges on the panel should have kept A Man for All Seasons handy.

Wife: While you talk he's gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?
Yes, I'd give the Devil benefit of law, for my own safety's sake!