Exclusive: Will a lesbian couple be forced to testify against each other?

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by Gene Kang

WHAS11.com

Posted on July 30, 2013 at 6:39 PM

Updated Tuesday, Jul 30 at 6:41 PM

LOUISVILLE, Ky. (WHAS11) -- A same-sex couple is at the center of a legal debate. The question that is creating the debate is whether or not the couple can be forced to testify against each other in a murder trial.

It stems from a case dating back to 2011.

Bobbie Jo Clary is charged with murder, robbery and tampering with physical evidence in the death of George Murphy in the Portland neighborhood.

He died from massive head trauma.

Detectives say Clary’s partner, Geneva Case, heard her admit to killing Murphy.

It all boils down to a civil union certificate and what it means to a Jefferson County judge.

Bobbie Jo Clary says she was raped by George Murphy, before hitting him over the head with a hammer in self defense.

Clary is charged with murder and she faces the death penalty if convicted.

It’s heart-wrenching for her lesbian partner, Geneva Case.

"It's very stressful. I wish she could come home. There's nothing we can do right now though," Case said.

Prosecutors believe she knows what happened to Murphy in Oct. 2011 and wants her to take the stand in a jury trial because of this vital information from a police interview.

Prosecutor, Stacy Grieve, said, "Geneva Case observes blood on the interior of the van and follows the defendant to Corydon Pike in New Albany where the van is left."

Current Kentucky law gives husband and wife the right not to take the stand against each other. Clary and Case have a same-sex union in Vermont.

Kentucky bans same-sex marriages but their lawyers argued they should have the same spousal privilege and equal protection under the law.

"It's a real marriage to us. We went there and we got married," Case said.

Thirteen states and Washington D.C. allow same-sex marriage. Laws have changed since the U.S. Supreme Court struck down Prop 8 and DOMA at the Federal level.

That's the issue on the table. Will the civil union be considered as a legal marriage?

Angela Elleman, Clary's Attorney, said, "The United States Supreme Court has spoken that equal protection does protect gay and lesbian couples. The Defense of Marriage Act opinion that was offered earlier this summer is binding on this court."

Grieve replied, "Our position is that spousal privilege only applies to a valid marriage and these two parties do not have a valid marriage."

Bryan Gatewood, Case's Attorney, said, "I don't think that the Commonwealth had much of a response today they argued that it's up to the Attorney General's Office to deal with the constitutional issues."

While Case spoke to WHAS11 about the woman she calls her wife, she says she is also standing up for equal rights.

Case, "It's my right not to be and not to have to do it. Everybody's right not to have to testify against their spouse."

The case will be reviewed by Attorney General Jack Conway and the judge will make a ruling by Aug. 16.

The murder trial is expected to start at the end of August.
 

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