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Federal Law Protects Seal of Confession

By Drinan, Robert F. | National Catholic Reporter, February 28, 1997 | Go to article overview

Federal Law Protects Seal of Confession


Drinan, Robert F., National Catholic Reporter


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, 20, 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 officials 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 officials, 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.

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