NEWS STORY: Taped jailhouse religious confession ruled illegal

c. 1997 religion News Service SAN FRANCISCO _ A federal appeals court has ruled that jail officials in Eugene, Ore., violated the religious rights of a local Roman Catholic priest by secretly taping the sacramental confession a murder suspect had given the clergyman. The ruling by a three-judge panel of the 9th Circuit U.S. Court […]

c. 1997 religion News Service

SAN FRANCISCO _ A federal appeals court has ruled that jail officials in Eugene, Ore., violated the religious rights of a local Roman Catholic priest by secretly taping the sacramental confession a murder suspect had given the clergyman.

The ruling by a three-judge panel of the 9th Circuit U.S. Court of Appeals overturned a U.S. District Court decision that the panel said might have encouraged prosecutors and police investigators to gather evidence by secretly taping otherwise confidential jailhouse communications between criminal suspects and clergy.


At the same time, the Appeals Court also upheld the constitutionality of the Religious Freedom Restoration Act (RFRA), the controversial law limiting government interference with religious expression and practice signed into law by President Clinton in 1993.

That law is currently being challenged in a Texas case and the U.S. Supreme Court will hear arguments on RFRA’s constitutionality on Feb. 19.

In the Oregon case, the Court of Appeals unanimously ruled that law enforcement officials had violated the religious rights of the Rev. Timothy Mockaitis and Portland Archbishop Francis E. George by secretly taping the sacramental confession a murder suspect had given to Mockaitis in 1996.

In his confession, suspect Conan Hale had acknowledged participating in a burglary that police had connected with the killings of three Eugene-area teenagers. But Hale denied any role in the 1995 killings.

The case was unusual not only because of the extreme measures officials took to gain evidence in a criminal proceeding, but also because the suspects in that proceeding _ on learning of the existence of the taped confession _ had asked the courts to preserve the tape for use in their defense.

Attorneys for the U.S. Catholic Conference, the social policy arm of the nation’s Roman Catholic bishops, and a panoply of other religious groups _ including the Church of Jesus Christ of Latter-day Saints (Mormon), the Presbyterian Church (U.S.A.), the American Jewish Congress, the Baptist Joint Committee on Public Affairs, and the Evangelical Lutheran Church in America _ filed a brief arguing that the ruling would have permitted wholesale law enforcement intrusion into the privileged, sacred communications between clergy and laity.”They used the priest as a tool to gather evidence for the state without his permission and that’s what made it such an important case,”said Portland attorney Thomas Dulcich, who represented the Archdiocese of Portland. Had the lower court ruling been allowed to stand, Dulcich added,”what’s to say that the next step wasn’t the bugging of a priest in his office or in his confessional?” Police had arrested Hale and Jonathan Susbauer as suspects in the December 1995 murders. On April 22, 1996, Hale was to be visited by Mockaitis, who would hear his confession. A detective in the county sheriff’s office learned of the planned visit and obtained a warrant to secretly tape record the confession.

In the confession, Hale asked for absolution for participating in the burglary and”for being angry with Susbauer for Susbauer having killed the three teenagers,”according to an affidavit Hale later gave.


When the existence of the tape recording hit the press, Mockaitis and the archdiocese petitioned a local trial judge to order the destruction of the tape and to keep a transcript of the tape’s contents sealed.

As long as the tape remained in existence, Mockaitis told the judge,”I feel uncomfortable in administering the Sacrament of Penance in the Lane County Jail.” When the trial judge refused to hear the church’s motion _ instead ordering the tape preserved as evidence against Hale and Susbauer _ Mockaitis and Archbishop George sued Lane County District Attorney F. Douglass Harcleroad, who had possession of the tape, in Portland federal court. The suit claimed Lane County officials had violated RFRA, the federal wiretap act and the civil rights of the priest and the archdiocese.

U.S. District Judge Owen M. Panner dismissed the archdiocese’s lawsuit, holding he did not have jurisdiction to interfere with an ongoing state criminal investigation.

But in a decision written by Judge John T. Noonan, the 9th Circuit held that secret jailhouse tapings of religious communications violate RFRA and issued an injunction preventing such tapings in the future. The ruling, however, does not order destruction of the Hale tape.

The sacrament of confession would become”odious in jails by the intrusion of law enforcement officers,”Noonan wrote.”When the prosecutor asserts the right to tape the sacrament he not only intrudes upon the confession taped but threatens the security of any participation in the sacrament by penitents in the jail; he invades their free exercise of religion and doing so makes it impossible for Father Mockaitis to minister the sacrament to those who seek it in the jail,”he wrote.

MJP END AQUINO

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