Tape of Jailhouse Confession Passes Legal, Not Moral, Challenge

That there are consequences to actions is a maxim observed with equal regularity in the courtroom and the Catholic Church. Just now in Oregon, forces from both those worlds are learning anew the undeniable truth of what they so diligently preach.

All parties agree that Dist. Atty. Doug Harcleroad of Lane County, Ore., erred grievously when he surreptitiously taped a sacred act of confession made by a jailhouse inmate to a Catholic priest. Even Harcleroad allows as much. So too does Pope John Paul II, the American Civil Liberties Union and a slew of judges. But now that the tape exists, none of this matters. The tape, however disavowed, can’t be destroyed. It should never have been made, the law declares, but it must survive.

The latest to so proclaim was the U.S. 9th Circuit Court of Appeals. In a curious late-January decision, a three-judge appellate panel found the bugged confession patently illegal, ordered that the Oregon prosecutor never do such a thing again but nonetheless declined to mandate the tape’s destruction. Thus rescued, that disowned but abiding cassette currently sits under protective seal in the Lane County courthouse.

The story of how all this came about is, as Harcleroad aptly observes, “pretty unusual.” For its genesis, look to one day last April, when a Lane County prisoner, Conan Wayne Hale, asked that a Catholic priest come hear his confession. Hale just then was being held on burglary and theft charges, but was a suspect in a related triple murder committed the previous December. Eyes, therefore, lit up all over the sheriff’s and prosecutor’s offices.

There was, of course, a sizable obstacle to what they were contemplating. All seven sacraments of the Catholic Church are considered privileged encounters between an individual and God, but the sacrament of penance is regarded as a particularly confidential moment of grace and reconciliation. In Catholic teaching, the priest-confessor hears the confession not as a private person, but as an instrument of Christ. Catholics see the sacramental confession not as human conversation but as sacred encounter. To intrude on that moment would, no doubt, agitate Catholics mightily.

But it wasn’t at all clear that such an intrusion would be illegal. Oregon laws looked murky on this point. One statute did generally guarantee the confidentiality of clergy-congregant conversations. Another, however, by specifically prohibiting only the taping of jailhouse conversations between attorney and client, apparently left the door open to all others. In the statutes’ gaps, the district attorney could find room to maneuver.

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This he had good reason to do. After all, the triple slaying, the first ever in Lane County, had been a horrible, highly publicized affair. The victims--all under 16, one a 15-year-old girl also raped and sexually abused--had been found naked and shot through the head at the end of a remote logging road. There was enormous public pressure to identify and prosecute the murderer. There was, for that matter, enormous public pressure generally in Lane County to fight crime with unbounded vigor. Start respecting victims, stop coddling criminals, do whatever it takes--such was the ceaseless advice heard by the D.A. In the end, it’s not hard to see why the arrival of one Father Tim Mockaitis at the Lane County Jail looked to Harcleroad more like an opportunity than a dilemma.

As priest and prisoner sat in visiting booths, separated by a glass wall, talking via phone, a recorder turned soundlessly beyond their sight. Twenty-four hours later, after obtaining an authorizing warrant, two prosecutors, a detective and a secretary found themselves hunched over the result, listening earnestly. Thus the battle once again was joined between religious freedom and governmental interest.

Within days, the Archdiocese of Portland--learning of the warrant--sent a delegation to ask Harcleroad to destroy the tape. Soon all manner of Catholic and civil libertarian groups--a strikingly uncommon mix of liberals and conservatives--were calling for court battles, federal investigations and congressional action. “This is unprecedented in American history,” declared William Donohue, president of the Catholic League for Religious and Civil Rights. “They know damned well that the relationship between a priest and a penitent is sacred.”

For a time at least, Harcleroad appeared to know no such thing. The taping was justified, he insisted to reporters. His critics were missing the point. The D.A.’s primary concern was to solve the triple homicides. “What has gotten lost in this story,” Harcleroad observed, “is there are three dead children who were murdered.”

The D.A. no doubt felt he had public opinion on his side, but he miscalculated. Despite cries for law and order, it seems a significant portion of the public also relishes religious freedom and even civil liberties. The furor only mounted against Harcleroad. Bills were drafted for Congress, legal briefs for judges, press releases for journalists. By the time the Vatican handed U.S. Ambassador Raymond Flynn a formal letter expressing the “Holy See’s urgent request that the tape be destroyed”--the “shameful and unacceptable” tape--Harcleroad had seen the error of his ways.

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“I was wrong to authorize the taping of that conversation,” the D.A. declared in late May. “There are some things that are legal and ethical, but are simply not right. I have concluded that [this] tape recording falls within the zone of socially unacceptable conduct.” He would not use the tape in court, the D.A. promised. He would hand over the tape to a judge. He would ask the judge to seal it. He would seek legislation to protect clergy-penitent conversations in Oregon.

Harcleroad, in other words, would do everything but that most critical to church leaders. The church still was demanding the tape’s destruction, arguing that its very existence “intrudes on the absolute secrecy central to the sacrament” and “chills the practice of the Roman Catholic religion.” This need, alas, the D.A. could not satisfy. He could apologize, but he could not erase the consequence of his actions.

The suspect’s defense attorney, after all, had by then formally asked for the tape to be preserved. She had good reason: The tape might contain Hale’s declaration of innocence, or it might prove that prosecutors improperly used information from it to build their case. Either way, it promised great exculpatory value.

“The chances of getting the tape destroyed before the prosecution has run its course [are] zero,” University of Oregon law professor David Schuman quite presciently advised at the time of Harcleroad’s apology. “Even if making the tape was wrong, the tape is evidence in an ongoing prosecution. If the state destroyed it, they’d have to dismiss all charges against Hale.”

This prospect did give the church some pause; the Rev. Michael Maslowsky, director of pastoral services in the Portland archdiocese, acknowledged a certain “discomfort” that their demands could lead to a murderer’s release. But it changed no minds. “We have no choice,” Maslowsky explained. “What’s at stake here is a critical liberty.”

Others weren’t nearly so inclined to choose abstract principle over a possible murder conviction, particularly after a grand jury indicted Hale on homicide charges. The church’s first formal petition seeking the tape’s destruction was promptly returned unprocessed by a county judge who wanted it known that “this court will not consider, under any circumstances, the actions which your clients desire.” The second petition, filed in federal court, drew a more sympathetic response--the church was “justifiably outraged” by the prosecutor’s actions--but still another denial. The U.S. 9th Circuit’s recent decision finally found, quite unequivocally, that the recording violated federal law, the Constitution and the historical “sanctity of the secrets of confession.” But it, too, left the tape unscathed.

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By then, it hardly mattered. A county judge, obliged by the rules of criminal law, had already allowed defense lawyers to hear the tape and retain their own copy. From the day prosecutors first listened to a priest and prisoner’s secretly recorded conversation, there could have been no other outcome. Nor can the inexorable end to this affair be avoided. It looms this summer, at Hale’s coming murder trial. His attorneys, no matter the tape’s contents, may very well seek to play that most private exchange, either in a judge’s chambers or open court. As the defense lawyers measure their options, it’s hard not to imagine the Lane County district attorney wondering: What have I wrought?