According to the Los Angeles Daily Journal, Oct. 26, three Orange County judges wrongfully held a woman with AIDS in jail for more than a month because she didn’t show up to testify against her boyfriend. Not only was she jailed, but she was denied counsel. What was her crime? She simply refused to testify against her boyfriend. Had she been married to him, nothing would have happened.

Under both federal and California law, married couples can refuse to testify against each other. A court cannot force them to do otherwise. Even if one spouse wants to testify, under California law, the other spouse can prevent the other from testifying.

But it’s a different story for those that are unmarried (or unregistered domestic partners). Courts may hold partners in contempt for refusing to testify. And, as this case suggests, the “partner” can be jailed as a material witness until the trial.

For example, prosecutors had subpoenaed Debbie Williams to testify as a material witness against Steven Robert Miller, who was charged in a three-strikes case with first-degree robbery, first-degree burglary and the unlawful taking of a vehicle. Williams was involved in a relationship with Miller.

Prosecutors believed Williams had seen Miller in the stolen car, and he had confessed his crimes to her, and wanted her to testify at his trial.

After Williams failed to appear in court twice, a bench warrant was issued, and on Dec. 25, 2002, she was arrested and brought before a judge.

Without appointing her a lawyer, the judge ordered her to report to the judge handling the criminal case. He set her bail at $10,000.

When Williams later appeared before a second judge, prosecutors argued that Miller’s trial had been delayed for three years because of Williams’ failure to appear. So he raised her bail to $50,000.

At another hearing several days later, Miller’s lawyers asked the judge to get Williams a lawyer. The judge refused, saying, “[W]hether this person is entitled to counsel for other reasons not associated with the fact that she’s in custody after being classified as a material witness is a separate issue that will arise on — when the case goes to trial.”

But an appellate court faulted judges Ronald Kreber, Francisco P. Briseno and Richard W. Stanford, Jr., all of the Orange County Superior Court division, for keeping Debbie Williams in custody. The decision also said her medical condition may have explained why she didn’t show up for her court appearances.

“They’ve made sure that this doesn’t happen again,” Deputy Public Defender Kevin Phillips said, “that someone can’t be thrown in jail and denied a lawyer.”

On Jan. 28, 2003, two deputy public defenders asked Judge Stanford to be appointed to represent Williams. The lawyers said she should be released with fewer restrictions because of her medical condition, for which she was undergoing monthly hospital treatments.

Stanford allowed the defenders to represent Williams, but refused to lower her bail or release her.

The appellate panel said that because Williams was not knowledgeable about the criminal justice system, and didn’t have a lawyer, she may not have been aware that jail wasn’t her only option.

But even with a lawyer, she can still be forced to testify, or face jail for refusing to do so.

Contrast that with a case recently reported in the Union-Tribune, where prosecutors will not be allowed to listen to conversations taped by authorities between an Oceanside man – accused of killing an Oceanside police officer last year – and the man’s wife. Nor can the DA force the wife to testify.

Judge Joan Weber said that the couple’s conversations were protected by marital privilege. Here, the defendant is charged with the shooting of rookie Officer Tony Zeppetella, age 27.

Okay, so the wife of an alleged cop killer doesn’t have to testify against her husband, but the girlfriend of the alleged three-striker does have to testify. Moreover, she can go to jail for not doing so, and she can be held as a material witness until the trial?

They both should suffer the same consequences or nothing at all.

Either social-family relationship privileges apply to all bonds, or they shouldn’t apply to anyone. If a mother can be forced to testify against a son, and vice versa, then a wife should be forced to testify against a husband. Otherwise, it’s a denial of equal protection.

That’s why Bonnie Dumanis and the Attorney General’s Office should challenge the state laws providing evidentiary privileges to marital units.