ROANOKE TIMES
Copyright (c) 1996, Roanoke Times
DATE: Saturday, May 11, 1996 TAG: 9605130068
SECTION: NATIONAL/INTERNATIONAL PAGE: A-1 EDITION: METRO
DATELINE: PORTLAND, ORE.
SOURCE: ALEXANDRA HARDY ASSOCIATED PRESS
THE TAPE WAS ROLLING as a triple-murder suspect reconciled with God. It may ruin the prosecution's case.
When Conan Wayne Hale bared his soul to a priest, his confessor and God weren't the only ones listening.
Investigators taped the murder suspect's jailhouse conversation, known in the Roman Catholic Church as the sacrament of reconciliation.
Now the question is whether prosecutors may use the tape in court, or ruined their own case by making the recording.
``It's an absolute outrage,'' said William Donohue, president of the Catholic League for Religious and Civil Rights. ``They used this priest. They brought him in to perform the sacrament of reconciliation. And then they bugged him.''
Hale, 20, is a suspect in the Dec. 21 shooting deaths of three teen-agers in a forest near Springfield, about 110 miles south of Portland. He is in jail awaiting trial on related burglary and theft charges.
The Rev. Timothy Mockaitis heard Hale's confession in the visiting area of the jail April 22, at Hale's request.
Prosecutor Doug Harcleroad has suggested that the state may try to use the tape in court - a move Hale's attorney, Terri Wood, said she would fight.
Harcleroad said he does not know the contents of the tape, which is under lock and key pending a decision on how it will be used. He said he also is considering the archdiocese's request that the tape be destroyed.
The contents of the conversation have not been released, but Wood told The Oregonian: ``I have absolutely no reason to think Mr. Hale confessed any crimes to a priest. I just don't want anyone confusing a criminal confession with the religious ... confession.''
Legal experts doubt prosecutors will be able to use the tape in court, even if they were within their rights to make it.
State law says jail conversations except those between an attorney and client may be taped without the consent of anyone involved. But another state law says conversations between clergy and their followers are confidential.
The question is which law takes precedence.
``We determined it was legal, and we are investigating the deaths of three children in this community,'' Harcleroad said. ``That tends to get lost in this. I was present at the scene and saw those children. It was pretty gruesome. We want to solve this case - legally.''
But David Schuman, a law professor at the University of Oregon, said, ``They will never be able to use the actual confession in trial unless they prove [Hale] waived confidentiality.''
What's worse for the prosecution, an assistant prosecutor and a sheriff's investigator assigned to the case have heard the tape - a move that could jeopardize the entire case. If the taping is found to have been improper, prosecutors will have to prove no information from the tape was used in their investigation, said Robert Weisberg, a law professor at Stanford University.
He cited the government's Iran-Contra case against Oliver North, which was thrown out when his attorneys argued that it was tainted because prosecutors had access to the testimony North gave Congress under immunity.
Harcleroad said he knew the priest was going to hear a confession and arranged for it to be taped. He said he believes it is the first time his office has tried to listen to such a conversation, and that his staff checked beforehand to make sure it was legal.
The priest didn't know the tape was being made. It isn't clear whether Hale did either, though Harcleroad said the inmate knew his conversations were routinely monitored: Hale would write down information, hold it up to the glass separating him from visitors and tell them over the telephone communication system in the visitors room not to repeat what he had written.
The Archdiocese of Portland has asked that the tape and any transcripts be destroyed.
In a letter sent to churches in the archdiocese, Bishop Kenneth Steiner denounced the secret taping, pointing out that church law ``forbids any confessor to betray a penitent by any means for any reason whatsoever.''
Bud Bunce, the archdiocese spokesman, said Harcleroad's actions threaten the role of not just Catholic priests, but clergy of all religions. Inmates, he fears, may not feel comfortable seeking spiritual guidance if they believe their words can be used against them.
``We were shocked,'' Bunce said. ``The value Catholics place on being able to celebrate the sacrament of reconciliation, the absolute secrecy, is intrinsic to it.''
The Catholic League's Donohue called the taping a ``Nazi tactic'' that violated Hale's constitutional rights. He said the organization will take legal action if necessary to make sure the recording is destroyed.
LENGTH: Medium: 88 lines ILLUSTRATION: PHOTO: (headshot) Hale. color.by CNB