From .............. National Catholic Reporter

June 14, 1996

page 9

APOLOGY OFFERED FOR TAPING

The Oregon district attorney who authorized taping a prisoner's sacramental confession said May 22 he had made a mistake in doing so.

"There are some things which are legal and ethical but are simply not right. I have concluded that tape recording confidential clergy-penitent communications falls within the zone of socially unacceptable conduct," Lane County District Attorney Doug Harcleroad said in his statement.

The apology was welcomed hy the Portland archdiocese, where the taping occurred, but church officials said the apology alone was not enough.

Auxiliary Bishop Kenneth D. Steiner said in a May 23 statement that the archdiocese would formally petition for the tape's destruction. Archdiocesan representatives were to meet June 4 with Harcleroad to develop a formal policy to prevent such tapings in the future.

In a May 21 letter from Cardinal Angelo Sodano, Vatican secretary of state, to Raymond Flynn, U.S. ambassador to the Vatican, the Vatican said it deplored the secret taping, calling it a violation of religious freedom, and demanded that the tape be destroyed. At the Vatican's request, Flynn forwarded the protest to Oregon officials.

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From ............... National Catholic Reporter

July 12, 1996

page 6

REQUEST TO DESTROY TAPE DENIED

A Lane County, Ore., circuit judge denied a request by the Portland archdiocese to destroy the tape of a prisoner's confession recorded in the Lane County jail. Archdiocesan officials said June 18 they plan to appeal the ruling.

The prisoner, Conan Hale, has since been indicted in the shooting deaths of three teenagers. Attorneys for the prosecution said they wanted the tape preserved to prove that evidence gained in the case was not tainted by the taping.

Hale's attorney, Terri Wood, said she wanted the tape preserved to challenge evidence in the case. Wood said the tape belonged to Hale, an assertion disputed by Fr. Michael Maslowsky, director of pastoral services for the Portland archdiocese.

"He doesn't own it; we don't own it. If anyone owns that tape, it is God himself," Maslowsky said. "And it must be returned to God."

[Roman] Catholic officials have maintained that the taping violated Hale's constitutional right to religious freedom by breaking the seal of confidentiality of the sacrament.

Since Hale's indictment, the tape has been sealed. Those who have heard it have been ordered not to discuss its contents.

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From ............ National Catholic Reporter

February 7, 1997

page 8

BRIEFS ........... NATION

Taping confession termed illegal

A federal appeals court ruled Jan. 27 that Lane County officials violated federal law when they secretly taped an inmate's sacramental confession.

The ruling is a victory for all Oregonians, not just Catholics, church officials said.

"We are very grateful for this strong affirmation that this taping was unconstitutional," said Archbishop Francis E. George of Portland, who had filed suit against use of the tape. "The ruling affirms the position of the church and strengthens the religious freedom of all Oregonians."

Fr. Michael Maslowsky, an attorney and archdiocesan director of pastoral services, said, "In every private religious exchange with a leader of their faith, all citizens can now feel confident of the privacy and inviolability of that encounter." Maslowsky directed the appeals.

The 9th U.S. Circuit Court of Appeals ruled that the jailhouse recording of the confession between murder suspect Conan Wayne Hale and a priest was illegal and violated their free exercise of religion.

The three-judge appeals panel ruled that the secret taping violated the federal Religious Freedom Restoration Act and the Constitution's Fourth Amendment and ordered an injunction against any future tapings.

The court stopped short of granting the church's original request to have the tape destroyed but asked the federal district court to determine its disposition in accord with appropriate laws and in light of the appellate ruling.

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From ............. National Catholic Reporter

February 28, 1997

page 11

Analysis

Federal law protects seal of

By ROBERT F. DRINAN

A federal court reinforced the inviolability of the Catholic seal of confession when the judge refused to allow law enforcement officials to use the surreptitiously wiretapped confession of a prisoner to a Catholic priest.

On Jan. 27, the Ninth Circuit Court of Appeals sitting in San Francisco in an opinion by Judge John Noonan reversed the ruling of a lower federal judge in Oregon.

The Catholic position on the seal of confession drew the support of religious and civil liberties groups across the nation.

The facts in this case are unique. Conan Wayne Hale, 2O, was charged with the murder of three young persons on Dec. 21, 1995. Circumstantial evidence was strong, but Hale denied the charges. While in detention Hale, who is not a Catholic, asked to see a priest.

Fr. Timothy Mockaitis, a priest in Eugene, Ore., visited Hale on April 22, 1996, and heard his confession. Without the priest's knowledge, prison authorities recorded the confession, which was conducted by telephone while prisoner and priest were separated by a glass partition. Prison offlcials claim that all conversations of prisoners and visitors are recorded except conversations between prisoners and their lawyers.

When it was revealed that the confession had been taped, the bishop of Portland, Ore., Francis E. George, protested. In a letter to the United States ambassador to the Holy See, the Vatican deplored the recording of the confession. The uproar focused on the prosecutor, Doug Harcelroad, who lamented the taping but seemed to think the tape should not be destroyed if it contained evidence the defendant desired to use for his defense. Somewhere along the line, the Oregon attorney general said that if the tape were not admissible, the government might have to dismiss the charges of murder.

The archdiocese moved in state and federal court to suppress and destroy the tape. In the interim some of the contents of the tape were released. In the confession, Hale sought to blame the murder on his companion in the robbery. It is unclear whether Hale deliberately sought to deny his guilt in the solemn atmosphere of confession with the hope that he could use the tape at a later date to establish his innocence. The affirmation of innocence made to the priest in such an encounter would theoretically have a certain credibility.

Catholic offlcials, including the U.S. Catholic Conference, requested a federal judge in Oregon to destroy the tape and its written transcript. The court refused to intervene on the basis of the doctrine, well established since at least 1971, that federal courts should not enter into matters that are in litigation in state courts until such matters have been resolved according to state law and procedures. The federal judge did, however, agree that the "plaintiffs are justifiably outraged" by the taping, which "should never have occurred."

During the period when the destruction of the tape was being requested, the state of Oregon announced its intention to seek the death penalty for Hale. Around the same time the defendant's counsel revealed that the audiocassette would be used if it could be helpful to Hale in his efforts to defeat the 22 counts of aggravated murder and other crimes brought against him in the indictment.

The appeal of the archdiocese of Portland, argued on Dec. 12, 1996, and decided on Jan. 27, clearly and decisively condemns the entire procedure. The decision does not order the destruction of the taped confession but does not authorize its use. Judge Noonan also issued an injunction forbidding law enforcement officials in Oregon from ever wiretapping communications between clergy and those whom they seek to counsel.

No case just like the Oregon situation has ever been litigated in American jurisprudence. One decision of a lower court in New York in 1813 strenuously defended the seal of confession. In two cases in the United States Supreme Court dicta exist that justify the privilege, drawing an analogy to the immunity from testifying between husband and wife as well as between parent and child. The priest/penitent privilege is protected by statutes in all 50 states—a protection not challenged by scholars, attorneys or courts. The policy reasons underlying such statutes are clear and convincing.

Judge Noonan grounded his ruling on the Religious Freedom Restoration Act passed by Congress in 1993. That law, whose constitutionality was to be argued before the United States Supreme Court Feb. 19, stipulates that when a challenge is made to a law on the basis that it infringes on religious freedom, the burden of proof shifts to the defendant; that party has the duty of demonstrating that the restriction on religious freedom is required by some compelling interest of the government and that the restriction involved is the least burden that could be imposed to achieve the objective.

Noonan spells out at some length the reasons why the Religious Freedom Restoration Act is not unconstitutional as Oregon officials claim.

Noonan also criticized the Oregon procedure as a violation of the Fourth Amendment, which forbids unreasonable search and seizure.

This case, which threatened the seal of confession, is presumably now settled. But the accused Mr. Hale may still want to use his taped confession. It appears that Hale knew that his confession was being recorded by his jailers. In other instances, Hale signaled to his visitors not to speak because the conversation would be taped. Hale admitted to the priest the burglary he had already confessed to the police. But he accused his companion of the murder and asserted his own innocence of any homicide. Hale confessed to his anger at what he asserted were false allegations against him, presumably in the hope that his denial of the murder charges would be recorded and preserved—to help him at a later time.

Hale had the right to reveal his confession although no penitent under canon law ever has the right to allow the confessor to speak about the confession. The right to the priest's absolute secrecy is available to every penitent, including, as in this case, a non-Catholic.

Even though there may be some attempt to use Hale's confession to assist him in the trial, the decision rendered by Judge John Noonan, a noted Catholic academic and author, will be a milestone in the legal protection of the seal of confession in American law.

Religious groups of every description filed briefs in this case on behalf of the Portland archdiocese and Fr. Mockaitis. These groups recognized that law enforcement officials arranged the wiretapping because they were terrified of the widespread public anger about the murders. The rebuke of these law enforcement officials by a federal appellate court will almost certainly deter other prosecutors and defendants from seeking to bring benefits to themselves by invading the sacred precincts of a sacramental confession.

One should hesitate to over-generalize from this unique and even bizarre case. But what is clear is that the traditional and universal respect in American law for the sacredness of the priest/penitent relationship has been strongly reeffirmed. This affirmation, which coincides with the canon law of the Catholic church, has won wide support of church-related bodies in America. Religious groups in the United States have their differences, but on the sacredness of the confidentiality between clergy and laity, they are in total agreement.

Jesuit Fr. Robert Drinan is a professor at Georgetown University Law Center.

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