David Opperman Booking Photo 12.6.17.jpg

David Opperman booking photo

The wife of a local lawyer accused of molesting a young girl in 2003 cannot use Louisiana's spousal witness privilege and must testify before a grand jury probing the allegation against her husband, the state's top court has ruled in a precedent-setting decision.

The ruling in a matter involving lawyer David Opperman, of St. Francisville, marked the first time the Louisiana Supreme Court dealt with the question of whether the spousal witness privilege can be invoked in a grand jury proceeding where a sex crime against a juvenile is being investigated.

The high court ruled Thursday that a state statute, La. R.S. 14:403(B), waives the spousal witness privilege "in any proceeding" where the evidence sought relates to "abuse or neglect or sexual abuse of a child."

Sue Bernie, a retired longtime East Baton Rouge Parish sex crimes prosecutor, said Friday the law is designed to "enhance the search for truth" rather than allowing the truth to be "shielded" by marital privilege.

"I think the Supreme Court decision is absolutely correct," she said. "The law is designed to protect children who are sexually or physically abused or neglected."

Opperman was booked in December 2017 on a charge that he molested a 13-year-old girl back in 2003. He was not indicted, but rather billed — or charged — by the 20th Judicial District Attorney's Office in January 2018.

Opperman, a former prosecutor who had run unsuccessfully for 20th Judicial District Attorney against incumbent Sam D'Aquilla in 2014, pleaded not guilty.

After D'Aquilla's office recused itself in July 2018, the state Attorney General's Office stepped in as the ad hoc prosecutor and dismissed the charge, choosing to proceed by seeking a grand jury indictment.

The state issued a subpoena to Jane Opperman to appear before the grand jury. She asserted her lawful privilege to refuse to give evidence in any criminal proceeding against her husband.

She cited Article 505 of the Louisiana Code of Evidence, which contains the spousal witness privilege. The article states that, "In a criminal case ... a witness spouse has a privilege not to testify against the other spouse."

The article, however, also says the privilege does not apply in a criminal case in which one spouse is "charged with a crime against ... a child." Jane Opperman argued that because her husband has not been "charged with" a crime, that exception does not apply.

In addition to arguing that the spousal witness privilege does not apply when a spouse is charged with a crime against a child, the state turned to La. R.S. 14:403(B).

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That statute states that, "In any proceeding concerning the abuse or neglect or sexual abuse of a child ..., evidence may not be excluded on any ground of privilege, except in the case of communications between an attorney and his client or between a priest, rabbi, duty ordained minister or Christian Science practitioner and his communicant."

Two lower courts had sided with Jane Opperman.

In its ruling Thursday, the Supreme Court found that the spousal witness privilege "is abrogated" by La. R.S. 14:403(B).

"We hold the clear and unambiguous provisions of La. R.S. 14:403(B) prohibit Mrs. Opperman from asserting the spousal witness privilege in a grand jury proceeding targeting her husband for a violation of" the state's molestation of a juvenile statute, Chief Justice Bernette Johnson wrote for the court.

Johnson noted in the ruling that the spousal witness privilege "is generally applicable in grand jury proceedings," but not when abuse or neglect or sexual abuse of a child is alleged.

New Orleans lawyer Sam Winston, who represents Jane Opperman, said Friday he "will continue to protect my client's rights going forward to the fullest extent allowable under the law."

Legal experts said Jane Opperman also could be called by the state to testify if her husband goes on trial.

"We'll deal with that when it comes," Winston said.

David Opperman's attorney, Jim Boren, declined comment on the Supreme Court ruling.

Shortly before D'Aquilla recused his office in mid-2018, Boren alleged in a court filing that Opperman was cooperating in a federal criminal probe of D'Aquilla when Opperman was accused in late 2017 of molesting the girl.

D'Aquilla has called those claims "absurd and ridiculous" and "outrageous." He said the only time he ever heard of an alleged federal probe was when Opperman made statements to that effect in the community.

Boren's filing alleged the federal probe involved, among other things, the destruction of evidence by D’Aquilla and his granting of “an enormously generous plea deal” to a man convicted of sex crimes against children. There has “long been a notoriously known belief” that the man, Johnny D. Brown, is D’Aquilla’s half-brother, Boren stated.

Opperman previously served as an assistant district attorney for the 1st Judicial District in Caddo Parish, 19th Judicial District in East Baton Rouge Parish and 7th Judicial District in Catahoula and Concordia parishes.

Email Joe Gyan Jr. at jgyan@theadvocate.com.