In Confidence
With all the elements of a mystery novel, the forces of truth and deception have played themselves out dramatically in my pastoral ministry these past two years. I was formed in a very typical ethnic/Catholic family of Chicago and was acquainted with stories of religious persecution. However, in serving as a Catholic priest for the last 20 years in both rural and urban parochial ministry in Oregon, I never imagined that these events would happen to me or to any minister of religion in this nation.
After six years at Mt. Angel Seminary near Portland, I was eager and willing to serve the Church in the beautiful but religiously inexperienced Pacific Northwest. The following true events happened to me because I am a priest. I have prayed that those who read this story will in some way recognize that the call to follow Jesus is inevitably an invitation to embrace the cross and identify with His experience of the human condition we call sin.
In June 1995, a lay minister in our county jail, an elderly Catholic man named Roger, asked if I might be available "on call" for the sacramental needs — including sacramental reconciliation, if requested — of Catholic inmates. I agreed to do so, seeing this as an opportunity to expand a portion of my ministry.
After going through the necessary documentation and background check, I was cleared for regular visits to the jail. The proper authorities understood the nature of my visits, but limited those meetings to the visitors area of the jail. As I viewed the visitors area, with its glass partitions and rigid security doors, I felt assured that conversations of a confidential nature could be conducted. Besides, are we not assured by our American Constitution and state protections that the clergy-penitent relationship is among those understood as privileged? Thus, I continued to visit, only when requested, in order to offer the sacramental forgiveness of Christ. I grew to appreciate even more how fundamental is the absolute confidentiality of that relationship and the "freedom" it creates.
Several days before a visit on April 22, 1996, I received a phone call in the usual manner from Roger. He conveyed a request from a Conan Wayne Hale to visit with me and celebrate the Sacrament of Reconciliation. Mr. Hale stated that he understood the purpose of the sacramental relationship. I agreed to visit the following Monday morning.
Upon arriving at the jail, the ordinary procedure for admittance was followed, and I took a seat in the visitors area. The metal door had closed and I was alone. Nothing indicated otherwise. As I awaited the inmate, I reviewed again the posted sign that warned against defacing the walls and windows. Included was a statement: "No recording equipment allowed."
As the inmate entered, I was surprised by his youthful appearance. He seemed eager to speak as we viewed each other through the glass partition. We spoke over a telephonic device reminiscent of those found in old confessional boxes for use with those with partial hearing loss. As we concluded, I noticed nothing unusual or out of place. However, my confidence would be shattered 10 days later.
On May 3, I returned to the parish office in the late afternoon, where I found a somewhat cryptic note. A local newspaper reporter had called and wanted my reaction to "the recording of a confession I heard at the jail." I was puzzled to say the least and sought clarification from the parish secretary, who was likewise bewildered.
I quickly returned the reporter's call. He had discovered a search warrant among public court records and wondered what I thought about the tape recording of my visit with Conan Wayne Hale. I was stunned: "What do I think of what?" I sat down nearly speechless. "You mean, Father, you didn't know this was done? I think they want to use this in court," stated the astonished reporter.
"They can't do that!" I stated emphatically. I explained the sacramental nature of this relationship and expressed the absolute expectation of its privacy. He then continued to clarify further statements and established that he was doing a story on this development in Saturday's paper. I hung up the phone, feeling helpless, astonished and confused.
The next morning, after an erratic night's sleep, I apprehensively picked up the morning paper. There on the front page of the Register Guard, in bold print, was the story: "Suspect's conversation with priest recorded." The article, accompanied by a picture of the inmate, described our encounter as a "conversation."
The story related that Conan Wayne Hale was a suspect in a triple-murder investigation and had been arrested several months before I visited with him. This "conversation" had been recorded secretly, which was the centerpiece of the story. One could imagine such sinister tactics under a dictatorship or fascist state but not in the United States! Was this another display of anti-Catholic bigotry? Was this an example of local ignorance of Catholic teaching?
The Pacific Northwest remains the most unchurched region of this country, with a sad history of anti-Catholic behavior. With a local Catholic population of about II percent, the Church has become courageous and articulate in its defense of the faith. As a result, the questions were racing through my mind. I felt strangely responsible, and deeply violated.
That afternoon I spoke with Roger, who was devastated and apologized profusely for not being more discerning. I explained that despite what we both felt, we were not at fault. At least I tried to reassure him of his innocence, as I struggled to console myself. We agreed to let our objection be known to the jail personnel and concluded that we could not return to the jail. I then decided to place an urgent phone call to my bishop.
We were in a transition period in this archdiocese, awaiting the appointment of a new archbishop. As a result, I contacted our auxiliary bishop, Bishop Kenneth Steiner, about the matter. I described what had happened and found him to be as astonished as I was. He promised to find a copy of the Register Guard and said that he would call me again that evening.
The seal of the sacrament, for centuries held "inviolable," had been compromised and this sacred rite desecrated. Then came a shocking statement a few days later.
The local district attorney, Douglas Harcleroad, explained the reason for the taping as a security measure: "You never know what kind of plotting is going on between visitors and inmates. Even priests and ministers have been convicted of serious crimes." The interviewing reporter on that evening news report never challenged him. Upon hearing this, I cannot describe in civilized words the deep outrage I felt. I said to a staff member the next morning: "You could have peeled me off the ceiling!" What does the public now suspect of my relationship with this inmate? What kind of security risk was I to the jail?
It was later that week, in a private meeting with the district attorney, his assistant district attorney and archdiocesan personnel, that we discovered the real reason for the taping: It was a desperate attempt to gather evidence. In fact, the warrant issued to listen to the tape, the warrant discovered by the news reporter who called me, contains the following chilling statement:
. . . the Catholic confession is an integral part of Catholicism. It is a sacrament. The basic tenet of confession is that a person is absolved of his or her wrongdoing upon making a full and complete acknowledgment of what that wrongdoing is. . . . Based on the aforesaid information, your affiant has probable cause to believe, and does believe, that evidence . . . can be seized from an audiotape located in the office of the Lane County District Attorney.
The taping was undertaken, therefore, in a covert manner because they knew it was a sacrament of the Church. This was not ignorance. They deliberately took advantage of its confidential nature by conspiring, without my knowledge, as they knowingly violated the sacred seal in the most appalling manner possible. I felt I had stared evil in the face.
The district attorney was essentially dismissive of our concerns. We were told that the tape, and a written transcript, was now evidence for the trial of Mr. Hale and that we had no right to interfere in those proceedings. The line was drawn in the sand.
By now, words such as "clandestine" and "surreptitious" were used to describe this event. Father Michael Maslowsky, an attorney himself, became an articulate spokesman for the local Church. The media began to call this parish as the following two weeks became a firestorm of attention, from both newspaper and television reporters. All major networks — including such news-gathering organizations as "60 Minutes," CNN and the BBC — called me for an interview. As tempting as this was, we agreed that a media frenzy was the last thing the archdiocese wanted in such a delicate matter. Yet, despite all the publicity, I was feeling more and more isolated.
Public outrage quickly moved from Oregon, across this country to the United Nations, to the European papers, where a reporter stated, "Not even Franco would have done such a thing!"
The Holy See was outraged, calling this "shameful" and "unacceptable," and was insistent that the tape and all copies, both recorded and written, must be immediately destroyed. This had always been the position of the archdiocese and of then Archbishop (now Cardinal) Francis George, who had been appointed to Portland. The insistence of the inmate's own attorney that she intended to use the tape in a public trial reinforced fears expressed in a letter from Cardinal Sodano, the Vatican secretary of state.
The amazement of the Vatican was not only that such a thing had happened but that it had happened in the United States, a bastion of religious freedom and tolerance. It was a scandal. We knew of six people who had already listened to the tape. How many more?
By now I had been swept up in this controversy, and I found myself immersed in legal briefs, affidavits and continued news reports as I tried to keep my head above water in a single-priest parish of more than 900 families with a school of 270 children! I distinctly recall kneeling in prayer before the Blessed Sacrament for a quick resolution to this whirlwind of controversy. It became a period of spiritual dryness — my desert. I feared that perhaps something would be revealed, something I may have forgotten, which would bring public embarrassment to the Church.
It was at this time that I turned to find some peace in writing, which brought not only an outlet but also some helpful spiritual insights. Yet, by now, one month after the original offense, my earlier sense of being alone only intensified.
Although I was encouraged by the support of Archbishop George, a wonderful parish staff, my brother priests, members of my Jesu Caritas group, my own family and others, this became strangely unsatisfying. I concluded that no one really comprehended what I felt, so I had to learn to carry this cross alone. I found myself becoming irrationally suspicious of others who would ask "too many questions" about the case. If visitors would come to the parish commenting on the case, I would unconsciously wonder who sent them. Such mistrust and suspicion is a terrible experience for a pastor. One month later, at our suggestion, a long-awaited public apology was issued by the district attorney. But I knew that this "apology" was not at all what it appeared to be. He stated:
. . . some things which are legal and ethical are simply not right. I have concluded that clergy-penitent communications fall within the zone of societally unacceptable conduct.
Personally, I felt that his efforts at self-absolution were manipulative. Legal? Ethical? "Societally unacceptable" is another way of stating "politically unpopular." I realized that I was becoming hostile and unforgiving as the legal wheels continued to turn.
Early in August 1996, on the feast of St. John Vianney, the proceedings took a quick turn as we found ourselves in federal court before Judge Owen Panner. The state began its affidavit by questioning the sacramental nature of my encounter with the inmate, in essence stating that we "could not prove" that this was a sacrament.
I could not believe what I was reading and hearing! A 10-page affidavit by a canon lawyer, Father Bert Griffin, had been presented as "proof" of the sacramental nature of this encounter. Was this secular court challenging our Catholic theology?
As I sat quietly, with Archbishop Francis George on one side and our attorneys on the other, I prayed for understanding. It was at that moment that I was struck with a mental image of Jesus, the accused and innocent, standing before Pontius Pilate in a search for the meaning of truth. As the case was argued, I could only "see" Pilate questioning Jesus: "What is truth?" It was then, in that brief moment, that I was granted an acute understanding of the meaning of innocence. This is why Our Lord was so self-confident — because of His pure innocence. He is truth itself; all the rest are shadows. This moment of grace gave me some consolation and hope.
Other issues were of course brought up in argument. The sheriff and other jail personnel were questioned under oath along with me.
Essentially, the issue arose around whether this monitoring of conversations was in the normal course of jail policy. The sheriff stated that although it was a matter of routine to monitor certain inmates' telephone calls, it was not a routine matter to monitor the visitors area of the jail. (A couple of months earlier, at our request, the jail personnel brought in and set up the "bugging" equipment, and then showed us where and how they did it.)
Apparently, Conan Hale had visited with other clergy in the past. None of those conversations were recorded. Therefore, it became crystal clear how this particular "sacramental" conversation was targeted. As a local Catholic judge later said to me: "They continually created the illusion of confidentiality in order that you would keep going there." I took refuge in the memory of Jesus before Pilate.
In the end, Judge Panner, though appearing to sympathize, declined to order the destruction of the tape as requested by the archdiocese. The judge expressed his personal disappointment at the behavior of state and county officials by commenting, "No one has ever had the audacity to do such a thing!" But he simply fell short. It was indeed a disappointment.
Shortly afterward, with the approval of Archbishop George, we planned an appeal to the U.S. 9th Circuit Court. As the archbishop stated: "We will go all the way if we have to." He reassured me that he considered this to be the "most important issue in the archdiocese." Our fundamental relationship with the government was at risk if this was not ultimately resolved in favor of the Church. Where would this kind of intrusion and trampling of religious rights end?
As we approached a hearing in the 9th Circuit Court, we were encouraged by a friend-of-the-court brief expressing outrage at this whole affair. The brief stated the basic issue so well: "It is difficult to imagine any more blatant and bald-faced an affront to the basic tenets of a religion, short of intentionally committing acts of sacrilege as a matter of state policy."
The U.S. Catholic Conference was joined in the brief by the National Council of Churches, the Christian Legal Society, the Church of Jesus Christ of Latter-day Saints, the General Assembly of the Presbyterian Church (USA), the American Jewish Congress, the Commission of Social Action of Reform Judaism, the Baptist Joint Committee on Public Affairs and the Evangelical Lutheran Church of America. Their words offered some hope as we prepared for the hearing before Judges Noonan, Thompson and Kleinfeld of the 9th Circuit Court.
In contrast to the words of this amicus, or friend-of-the-court, brief, was the offensive posture of the state of Oregon. They minimized responsibility for this taping and essentially blamed me for this event. Once again questioning the Church's ability to prove that this was a sacramental encounter, despite the well-expressed words of Father Bert Griffin, the state claimed that I had been "foolish and exceptionally naive," that the interests of Archbishop George were only "abstract" and "tenuous" and that the concerns of the Church presented in court were "rather ambiguous."
Upholding the right of the state to have undertaken this action, they maintained that the Church had no right to interfere in the criminal prosecution of Mr. Hale-an issue we consistently, from the beginning, saw as entirely separate. The state's brief ended by stating:
Plaintiffs' rights were not violated. Finally, even if plaintiffs' rights were violated, plaintiffs are not entitled to any of the declaratory or injunctive relief they seek.
This was either merely posturing, outright bigotry or, as someone stated, "They just don't get it!"
We entered the circuit court on Dec. 12, 1996, in Seattle, Wash., with mixed emotions. I think it is significant that what normally may have taken two or more years was a hearing granted within three months of our failed effort before Judge Panner.
As the hearing began, our hopes were indeed mixed. However, as the session progressed, we became more confident. The judges, particularly Judge Noonan, were more than merely annoyed by this whole affair. The vast majority of questions were directed at the attorneys representing the state, and the judges sought their interpretation of the First and Fourth Amendments of the U.S. Constitution.
It was an experience I never imagined I would observe. We left the courtroom with more guarded optimism than at any other stage in this case.
The upcoming Christmas holiday brought some respite from all the legal maneuvering. Many were wishing me well and expressed prayers for a more peaceful 1997. The new year was to bring some closure, but more surprises.
By the end of January 1997, the opinion of the 9th Circuit Court was presented. In essence, the judges ruled that the secret taping was both illegal and unconstitutional. The court issued an injunction forbidding law-enforcement bodies from recording conversations between inmates and clergy members in the future. The court also found that the taping was a violation of my civil rights, both of privacy and of the right to be secure from unreasonable search and seizure.
By now, the archdiocese had spent more than $100,000 in legal fees, and the state of Oregon was ordered to pay the Church for its legal expenses. The court was unable to find any case in American history when such an invasion had been conducted. The court's finding contradicts the district attorney's opinion that his action was "lawful and ethical."
However, this decision also fell short of issuing a ruling specifically addressing the fate of the tape itself. I prayed that the tape would never be used. As our attorney stated: "Father Mockaitis does not want to hear his words on "Hard Copy."
Within two days, the ruling of the circuit court was front-page news in Oregon papers. I know that the question of a Supreme Court appeal was a real possibility. Archbishop George and the American Catholic bishops were ready to appeal if the state attempted further action. I personally believe that if the Supreme Court had used this case to test the Religious Freedom Restoration Act (RFRA), the outcome may have been different in that ruling. But that was evidently not to be at this time. The opinion of the court was never challenged by either the archdiocese or the state.
In closing, I want to express my gratitude to The Priest magazine for this opportunity. It has been my desire for a long time to tell this story because I feel that the issues involved must never be viewed as an isolated past event. I have only been able to share the highlights of these events with you, due to limited space. Additional developments in 1998 include the trial of Conan Hale and some personal legal action I was encouraged to undertake.
Certainly the value of sacramental forgiveness, a deeper appreciation of its healing significance in our broken lives, as well as a more authentic understanding of sin, are longing to be rediscovered. Prejudice against religion — in this case, specifically against Catholicism — and unchecked power are clearly at issue as we work through a natural tension between our rights as American citizens and as people of faith.
May Christ make us open vessels of His sacramental forgiveness, as we are called to share the Good News of Jesus with those who seek His boundless mercy.
FATHER MOCKAITIS is the pastor of St. Paul Church, Eugene, Ore. © The Priest, Our Sunday Visitor Publishing, 200 Noll Plaza, Huntington, IN 46750
This item 470 digitally provided courtesy of CatholicCulture.org
