The 'Oregon Case' in Review
Law and religion intersect at many points in our society, but nowhere so dramatically as in the courtroom.
On the evening of Dec. 20, 1995, or early the next morning, three young people were murdered, having first been savagely beaten with bats and then shot with a .38-caliber pistol. One suspect, a man by the name of Susbauer, was arrested and charged with the murders and two burglaries. Eventually, another suspect, Conan Wayne Hale, was charged with the murders and burglaries.
Hale eventually admitted his involvement in the burglaries but denied his involvement in the murders. Susbauer's version implicated Hale and himself in both the burglaries and murders. The defendants' interests conflicted, especially since conviction for the murders could result in the death penalty. The prosecutor had already announced his intention to seek the death penalty.
On April 22, 1996, Father Timothy Mockaitis, a priest of the Archdiocese of Portland in Oregon, appeared at the Lane County Jail in response to prisoner Hale's request to have his confession heard. Father Mockaitis and Hale met in a visitor's booth, with a glass window between them.
Hale went to confession by phone in full view of Father Mockaitis. Unknown to Father Mockaitis, Hale's confession was taped by the authorities and later transcribed. The authorities were routinely taping approximately 90 percent of Hale's conversations.
Within a couple of weeks, the existence of the tape and its transcript became known, creating a media furor that spread from Oregon to the Vatican. At one point, the Vatican commented officially and complained of the taping of a confession. In their attempt to preserve the sanctity of penitential communications in the sacramental forum and prevent future tapings of confessions, Father Mockaitis and Archbishop (now Cardinal) Francis E. George (the plaintiffs) undertook three distinct legal interventions to have the taped confession and transcript destroyed.
First, they petitioned the criminal court (where Hale and Susbauer were to be tried) to have the tape and transcript destroyed. In response, one judge issued an order preserving the tape and transcript. Another, Judge Billings, one of the defendants in the federal suit, ordered the tape and transcript preserved and informed Father Mockaitis and Archbishop George that the state court would not hear any intervention on their part since they were not parties to the criminal proceedings and had no standing.
Second, the plaintiffs, on June 27, 1996, filed a complaint in the federal district court for Oregon seeking the destruction of the tape and transcript, a declaration that any such taping was unconstitutional and an order prohibiting the taping of confessions in the future. This petition in federal court would have had the effect, if granted, of a federal court interfering in the state's prosecution of a crime. Federal interference in state prosecutions is relatively rare and only sustainable under specific circumstances. The district court dismissed their petition, finding that the specific circumstances did not exist.
Third, Father Mockaitis and Archbishop George appealed the dismissal by the district court to the 9th Circuit Court of Appeals. The appellate court reversed the dismissal of the district court in an opinion filed on Jan. 27,1997.
The following review and analysis are taken from the opinions rendered in both the federal district court and the federal 9th Circuit Court of Appeals.
In a nutshell, the state court told Father Mockaitis and Archbishop George that they had no place in the proceedings. The federal district court decided not to address the merits of their claim for relief. The 9th Circuit Court of Appeals finally cut to the quick and decided the merits, saying that the taping was wrong, unconstitutional and should be prohibited in the future. The tape, however, was to be preserved until the prosecution of Hale and Susbauer was completed.
The opinions are of interest beyond the issue of the taping of a sacramental confession by state authorities because these opinions illustrate legal reasoning in the face of atypical facts and the impact of that legal reasoning on the constitutionally protected right of free exercise of religion.
Of particular interest are the stipulated and anomalous facts associated with this case.
Although both defendants were charged with the murders and burglaries, Hale admitted the burglaries but denied the murders. Susbauer, the other defendant, implicated Hale in both the murders and the burglaries. Both faced the death penalty if convicted of the murders.
The Lane County Jail routinely taped conversations between Hale and visitors, the exception being conversations between Hale and his attorney. Hale is not a Catholic. Hale knew that authorities were taping his conversations, and he routinely communicated in writing when he did not want his conversations monitored.
It was Hale's decision to waive the confidentiality of the sacramental communication as part of his defense strategy. And, finally, it was Hale's request in part that triggered the decision of the criminal court to preserve the tape and transcript.
In their original complaint before the district court, Father Mockaitis and Archbishop George asserted five claims, pointing out that the recording of the confession resulted in the following violations: (1) violation of the right to free exercise of religion under the First Amendment; (2) violation of the Fourth Amendment's right to be free from unreasonable searches and seizures; (3) violation of rights under the Religious Freedom Restoration Act; (4) violation of federal wire-tapping laws; and (5) violation of the Oregon Constitution.
Note that each claim asserts a right either directly under the U.S. Constitution or the Oregon Constitution, or under federal statutory law derivative of those constitutional rights.
In a four-part opinion, the district-court judge abstained "from deciding the merits of the claims and dismiss[ed] the case." At issue for the court was its jurisdiction to suppress evidence allegedly illegally and unconstitutionally obtained in a matter pending before the state court. This is not an unusual analysis, since every court must address its jurisdiction (power and right) to decide the matters presented to it.
A standard defense to a complaint such as the one discussed here would be a challenge to the jurisdiction of the court to hear the matter. Considerable case law exists resulting from challenges to the jurisdiction of a court not unlike the one in this case.
After first noting that the decision to tape the confession was "inappropriate and should not have occurred," the court employed a test set forth in a U.S. Supreme Court decision, Younger vs. Harris (401 U.S. 37 [1971]), to justify its abstention from exercising jurisdiction over the state proceedings.
Younger essentially prohibits federal courts from exercising jurisdiction of federal issues where (1) there are ongoing proceedings in a state court (2) with an implication of an important state interest in those same proceedings and (3) there has been adequate opportunity to raise the federal questions in those same state proceedings.
In the case of the taped confession, there was no question that there were ongoing state proceedings — Hale and Susbauer were going on trial for murder. There was also no question but that an important state interest was at issue — the state's interest in the prosecution of the crimes and the defendants' rights to a fair trial. At issue was the opportunity of Father Mockaitis and Archbishop George to raise their complaints of violations of constitutional rights.
The federal district court noted that the plaintiffs had not effectively exhausted their remedies at the state level, noting that there was a possibility of raising their federal claims in the state court. However, going even further, the court concluded that even if the plaintiffs were precluded from raising their claims in state court, the atypical nature of the case shifted the interests of the law in favor of the state and defendants Hale and Susbauer.
Hale and Susbauer, defendants in the criminal trial, opposed destruction of the tape and transcript, each for his own reasons. The district court declined to grant the relief requested, because to do so would amount to telling the state court how to conduct an ongoing criminal prosecution. Finally, the court found that the rights of the defendants to a fair trial "outweigh plaintiffs' rights to free exercise of religion and freedom from unconstitutional searches and seizures."
However, the 9th Circuit Court first rejected the lower court's application of the requirement to abstain from exercising its jurisdiction. Judge John T. Noonan, a scholar specializing in law and religion long before he was appointed to the 9th Circuit, wrote the opinion of the court.
First, the appellate court found the lower court's application of the abstention rule to be erroneous, noting that Father Mockaitis and Archbishop George in fact had no relief available to them in the state proceedings due to the state court's decision that they were not parties to the criminal proceeding.
Second, the court noted that the greater portion of the relief requested would in no way interfere with the state's prosecution. The relief sought included a prohibition against any future interception of a sacramental confession, a declaration that any such interception would be unconstitutional and an order for the destruction of the tape and transcript. By limiting its analysis to the issue of whether the tape and transcript were to be preserved or destroyed, the lower court improperly abstained.
Having established that the federal court did have jurisdiction to decide the controversy, the court then moved to the merits of the plaintiffs' original petition for relief. However, the results were mixed, at least from the perspective of the Church.
The good news is that the taping of the confession was held to be unconstitutional under the Restoration of Religious Freedom Act. The bad news is that the tape and transcript still exist and will until the conclusion of the criminal prosecution, as had originally been decided by the district attorney for Lane County.
The arguments advanced by the state prosecution and by Father Mockaitis and Archbishop George merit detailed analysis. The district attorney argued that the Restoration of Religious Freedom Act (RFRA), on which the plaintiffs' sought their relief in part, was unconstitutional. The prosecutor argued that interpreting RFRA to forbid his taping of conversations of prisoners, which is implicitly authorized by Oregon law, pushes the First Amendment Free Exercise Clause too far and therefore must be declared unconstitutional itself.
He also argued that RFRA is unconstitutional since it advances the exercise of religion and therefore converts to an establishment of religion, which is prohibited by the First Amendment. Essentially, the prosecutor argued that it is one thing to protect the free exercise; it is another to establish religion. In his view, RFRA was unconstitutional since it required the state to advance religion.
The 9th Circuit rejected the prosecutor's arguments, noting that to accept them would be to fly in the face of the country's experience. To accept the prosecution's logic would render tax exemption for religious enterprises unconstitutional. It would also determine the provision of chaplains in the military to be establishment of religion and therefore unconstitutional under the First Amendment. According to the court's analysis, under RFRA the taping was unconstitutional because it impeded substantially the free exercise of religion.
As to the preservation of the tape, the court found that the plaintiffs had no relief available to them in view of the decision of Hale to waive his confidentiality. In Oregon, the penitent holds the privilege and can waive that privilege. In addition, according to the court, the plaintiffs knew that this waiver was possible before the confession was heard. The penitent-defendant sought to waive the secrecy of the confessional and have the contents of the tape disclosed in court. But there is no suggestion in any of the two court opinions that Father Mockaitis would be compelled to disclose anything from the confession. This clearly focuses the discussion on the act of taping the confession and its legality. The fact that the confession might, under different circumstances, be used to establish an alibi, for example, is not in dispute. In its opinion, the district court noted that in Oregon the penitent holds the privilege and that the plaintiffs' rights must yield to those of the defendant with respect to the preservation of the taped confession. It is worth noting that in some states, such as California, both the clergy and the penitent hold the privilege. All states provide some sort of clergy-penitent privilege.
With regard to wiretapping, of which Father Mockaitis and Archbishop George complained, it is worth noting that the legal prohibition is intended to prevent authorities from introducing illegally obtained evidence against defendants. There is nothing in the jurisprudence to prevent defendants who may have been illegally taped from seeking to introduce the tapes or transcripts as either direct evidence or for purposes of impeachment, such as casting doubt on a witness' credibility or demonstration of inconsistent recollection of the same events. Indeed, where the use of such tapes would be exculpatory, some might argue that the state has a duty to make the transcripts and tapes available, whether they were legally obtained or not.
The appellate court concluded that Father Mockaitis had every reason to expect privacy and confidentiality in the exercise of his priestly ministry in the sacramental forum. There is virtually no instance in American legal history of a priest being forced to disgorge information obtained in the confessional. There has been uniform respect for the confidentiality of clergy-penitent communications in general and sacramental communications in particular. The fact that Oregon law forbids taping the conversations between attorneys and their clients but does not forbid specifically the taping of a clergy-penitent conversation is not persuasive and does not override the general acceptance of the privileged communication between clergy and penitents.
Concluding its opinion, the court instructed the lower court to issue the injunction prohibiting taping in the future and an order declaring such taping unconstitutional. The court also instructed the lower court to take evidence on the issue of attorneys' fees to be awarded to the plaintiffs since they had clearly met their burden of proof.
In the final analysis, what has happened? Ironically, since the decision in Mockaitis was handed down, the Restoration of Religious Freedom Act has been declared unconstitutional by the U.S. Supreme Court, leaving this writer to wonder whether the same conclusion with regard to the free exercise of religion would still be reached given similar facts.
The appellate court decided the matter under the statutory law of RFRA, as it was required to do. One wonders whether an analysis of the free-exercise clause of the First Amendment would have produced a richer, more nuanced conclusion.
Was the question of whether free exercise of religion under the First Amendment of the U.S. Constitution includes the secrecy of the confessional decided? Yes, in a limited way. Both courts, for different reasons, avoided the more far-reaching constitutional analysis, exercising judicial restraint in their reliance on established case law and statutory law. It is also worth noting that in addition to the free-exercise-of-religion analysis surrounding Father Mockaitis, the court also addressed the right to privacy and clearly stated that the priest had a reasonable expectation of privacy in the hearing of the confession.
Left unanalyzed were the motives of the parties. To this priest and lawyer, the dual facts that Hale knew he was being taped and that he was not a Catholic make the situation even more provocative. One cannot help but speculate that Mr. Hale attempted to manipulate a sacrament to establish credibility for his story about not being involved in the murders perhaps on the assumption that what one says in confession to the priest and to God carries a greater weight than the oath one would take in a courtroom.
Although the state readily admitted its error in judgment, if not in law, in taping the confession, the fact of the taping and its preservation placed religious practice under the scrutiny of the court. In other words, the state could have unwittingly cooperated in perpetrating a fraud.
Alfred Hitchcock's film "I Confess" was a film about a priest accused of murder. In fact, the priest had heard the confession of the real murderer. Eventually, of course, the real murderer is discovered by tenacious police work and not by disclosure of the sacramental communication. As melodramatic as that film was, the viewer knew the truth throughout the film. The dramatic tension was whether truth could be ascertained without the device of disclosure.
This writer cannot help but think that the specter of sacramental communications being subverted by unscrupulous individuals, or by the state in its search for justice, would in the end erode the very values the law seeks to protect. After all, our greatest myth as a people is that we exist under the reign of law.
FATHER DEIBEL, who is a lawyer and holds a licentiate in canon law, is the judicial vicar of the Diocese of Sacramento. © The Priest, Our Sunday Visitor Publishing, 200 Noll Plaza, Huntington, IN 46750.
This item 474 digitally provided courtesy of CatholicCulture.org
