Mockaitis v. Harcleroad (938 F. Supp. 1516, 1996)

PANNER, District Judge.

Plaintiffs Timothy Mockaitis, a Roman Catholic priest, and the Most Reverend Francis George, Archbishop of the Archdiocese of Portland, bring this action against defendants Lane County District Attorney Douglass Hareleroad, Lane County Circuit Court Judges Jack Billings and Kip Leonard, and triple murder suspects Conan Wayne Hale and Jonathan Wayne Susbauer. The case concerns Harcleroad’s unfortunate decision to tape and transcribe a conversation between Hale and Moekaitis while Hale was an inmate at the Lane County jail.

Plaintiffs raise five claims: (1) violation of their First Amendment rights to the free exercise of religion; (2) violation of their Fourth Amendment rights to be free from unreasonable searches and seizures; (3) violation of their rights under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. §§ 2000bb-2000bb-4; (4) violation of the Wiretapping Act, 18 U.S.C. §§ 2510-2520; and (5) violation of Article I, Sections 2 and 3 of the Oregon Constitution. As relief, plaintiffs seek immediate destruction of the tape and any transcripts.

The parties presented the case on stipulated facts and briefed and argued the legal issues. I abstain from deciding the merits of the claims and dismiss the case. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971).

BACKGROUND

The stipulated facts are attached to this Opinion as Appendix A Additionally, in an earlier hearing I found that “Moekaitis intended to give the Sacrament [of the Penance] and that defendant Hale was not a Catholic but had been baptized and that Hale intended to make a confession and participate in a [S]aerament of the [P]enance.” August 6, 1996 Minute Order (Docket Entry #35).

At final argument, Hale objected to submitting the case on the stipulated facts because he wanted a finding that the tape and transcript are material, exculpatory evidence in his state criminal proceedings. I assume that the tape and transcript would be helpful or harmful to Hale or Susbauer and there is no need to make a finding of fact on that issue. With his objection noted for the record, Hale agreed to proceed to a final decision on the stipulated facts.

DISCUSSION

1. The Decision to Tape

Harcleroad’s decision to tape the intended confession has understandably triggered a fury of criticism. See, e.g., Harvey A. Silverglate, Secret as A Confession?, Nat’l L.J., July 1,1996, at A17 (noting “protests from all sides” including the American Civil Liberties Union and the Rutherford Institute, a private conservative religious liberty organization); Bob Ewegen, A Bayonet in the Confessional, Denver Post, July 22, 1996, at B7 (condemning Harcleroad’s decision to tape); Laurie Goodstein, Taped Confession to Priest Raises Ire, Houston Chronicle, May 11, 1996, at 23 (noting Archdiocese’s “uproar” over the taping); Dana Tims, Parishoners Back Priest in Jailhouse Confession, Oregonian, May 13, 1996, at B1 (noting standing ovation for Moekaitis by his parishioners at Sunday Mass and noting varied expressions of outrage); Vatican Enters Debate About Lane County Jailhouse Taping, Oregonian, May 25, 1996, at D1 (reporting that Vatican’s Secretary of State wrote to United States Ambassador deploring the recording of the confession).

Plaintiffs are justifiably outraged by Harcleroad’s actions. Harcleroad himself admits that the taping was wrong: “There are some things which are legal and ethical but are simply not right. I have concluded that tape recording confidential clergy-penitent communications falls within the zone of societally unacceptable conduct.” Deft.Exh. 1 (May 22, 1996 Statement of Doug Harcleroad). I agree with Harcleroad. Knowingly taping an intended confession between a penitent and a priest is inappropriate and should not have occurred.

Plaintiffs have done all they can to protect their Sacraments. In particular, Moekaitis has maintained his vow to keep Hale’s communication confidential. He has not violated the Seal of the Confessional.

II. Younger Applies

There are three requirements for the invocation of Younger abstention: (1) ongoing state proceedings; (2) implication of an important state interest in the state proceedings; and (3) an adequate opportunity to raise federal questions in those proceedings. Citizens for a Better Environment—Calif. v. Union Oil Co. of Calif., No. 95-15139, 1996 WL 395634 at *8 (9th Cir. July 16, 1996). There is no dispute that the first two elements are met.

Plaintiffs are not parties to the pending criminal prosecutions against Hale and Susbauer and their apparent inability to adjudicate their federal claims in those state proceedings would ordinarily make Younger inapplicable. See Middlesex County Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432, 102 S.Ct. 2515, 2521, 73 L.Ed.2d 116 (1982) (pertinent inquiry is whether state proceedings afford an adequate opportunity to raise constitutional claims); Benavidez v. Eu, 34 F.3d 825, 832 (9th Cir.1994) (Younger usually applied to parties actually involved in state litigation) (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 927-29, 95 S.Ct. 2561, 2565-67, 45 L.Ed.2d 648 (1975)). That is why I initially rejected Susbauer’s Younger abstention argument. However, now that the facts have been developed, I conclude that Younger applies either because plaintiffs can present their claims in state court or because this is an extraordinary case requiring abstention despite plaintiffs’ non-party status in the criminal prosecutions.

A. Opportunity to Raise Issues in State Court

Plaintiffs attempted to intervene in the criminal proceedings but they have not petitioned for a writ of mandamus seeking either review of Judge Billings’s order preserving the tape or an order requiring Judge Billings to reduce his June 13, 1996 letter to an appealable order. Mandamus relief may enable plaintiffs to raise their federal claims in state court. Cf. Radio and Television News Ass’n of S. Calif. v. United States Dist. Court, 781 F.2d 1443, 1446 (9th Cir.1986) (on writ of mandamus, court decided merits of news organization’s First Amendment challenge to district court order restraining criminal defendant’s trial counsel from making extrajudicial statements to media); In re Greensboro News Co., 727 F.2d 1320, 1321 (4th Cir.) (petition for writ of mandamus proper vehicle for reviewing news organization’s constitutional challenge to order excluding public from voir dire), cert. denied sub nom., Greensboro News Co. v. Flannery, 469 U.S. 829, 105 S.Ct. 114, 83 L.Ed.2d 57 (1984); State v. Pelham, 136 Or.App. 336, 342, 901 P.2d 972, 975 (1995) (rulings made during proceedings ancillary to criminal trial may, under certain circumstances, be challenged by petitioning for writ of mandamus), review denied, 323 Or. 264, 916 P.2d 312 (1996).

B. Abstention Required

Even if plaintiffs cannot seek mandamus review of Judge Billings’s actions, the unique facts here require abstention under Younger principles. Because plaintiffs seek suppression of evidence and a declaration that their constitutional rights were violated, the relief they request places them in the role of a typical Younger plaintiff facing criminal charges in state court.

In such cases, federal courts should abstain from suppressing allegedly illegally seized evidence in a state court prosecution. Perez v. Ledesma, 401 U.S. 82, 84-85, 91 S.Ct. 674, 676-77, 27 L.Ed.2d 701 (1971) (issued same day as Younger).

It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings----[5] uch federal interference with a state prosecution is improper. The ... admissibility of evidence in state criminal prosecutions [is] ordinarily [a] matter[] to be resolved by state tribunals[.]

Id, at 84, 91 S.Ct. at 676; see also Dubinka v. Judges of the Superior Court of Calif., 23 F.3d 218, 223 (9th Cir.1994) (citing Perez and requiring abstention when a federal plaintiff seeks federal intervention, before a state criminal trial, to resolve isolated and discrete trial issues such as admissibility of evidence).

Here, granting plaintiffs’ requested relief would be no less offensive to state sovereignty and the notions of “Our Federalism,” see Younger, 401 U.S. at 44-45, 91 S.Ct. at 750-51, than it would be in the ordinary Younger scenario. Furthermore, because plaintiffs seek destruction of the tape and transcript rather than just its suppression, the interference in state criminal proceedings would be even more offensive.

The fact that Hale and Susbauer, the defendants in the state court criminal proceedings, oppose destruction of the tape and transcript in this court, makes this case atypical. Because plaintiffs seek, destruction of the tape while Hale and Susbauer seek its preservation, no middle ground is possible. And, not only is plaintiffs’ request contrary to Hale’s and Susbauer’s stated interests, the tape is evidence they may well be entitled to receive under state law. See ORS 135.815 (generally providing for disclosure to defense); ORS 135.815(2) (all recorded statements of a defendant, regardless of whether the state intends to use them at trial, must be disclosed to the defense as soon as practical after the filing of an indictment); Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (prosecutor constitutionally obligated to provide material, exculpatory information to defendant); State v. Kersting, 50 Or.App. 461, 474, 623 P.2d 1095, 1103 (1981) (state must disclose material, favorable evidence and “[t]he duty to disclose includes a duty to preserve evidence prior to trial.”), aff'd, 292 Or. 350, 638 P.2d 1145 (1982).

In summary, even assuming that plaintiffs’ rights were violated, I abstain because granting plaintiffs’ requested relief would “ ‘have the effect of a federal court telling a state court how to run an ongoing criminal prosecution’ and [] such relief “would have the intrusive impact on the state proceeding that Younger and its progeny abhorred.’” The News-Journal Corp. v. Foxman, 939 F.2d 1499, 1508 (11th Cir.1991) (quoting Williams v. Rubiera, 539 F.2d 470, 473, 474 (5th Cir.1976), cert. denied, 431 U.S. 931, 97 S.Ct. 2636, 53 L.Ed.2d 246 (1977)).

III. Balancing the Equities

Hale’s and Susbauer’s rights to a fair trial outweigh plaintiffs’ rights to free exercise of religion and freedom from unconstitutional searches and seizures. “[W]hen First Amendment claims impinge upon the Sixth Amendment right to a trial by an impartial jury, asserted First Amendment interests must yield to the ‘most fundamental of all freedoms,’ the right to a fair trial for the accused.” Foxman, 939 F.2d at 1512 (quoting Estes v. Texas, 381 U.S. 532, 540, 85 S.Ct. 1628, 1631-32, 14 L.Ed.2d 543 (1965)); accord United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir.1988) (criminal defendant’s Sixth Amendment rights out weigh television network’s First Amendment rights); La Rocca v. Lane, 37 N.Y.2d 575, 584, 338 N.E.2d 606, 613, 376 N.Y.S.2d 93, 102 (1975) (interest in according criminal defendant and state a fair trial outweighed defendant’s attorney’s free exercise right to wear clerical collar during trial), cert. denied, 424 U.S. 968, 96 S.Ct. 1464, 47 L.Ed.2d 734 (1976). Although Foxman concerned free speech as opposed to free exercise or Fourth Amendment rights, the rights are comparable when they conflict with the Sixth Amendment right to a fair trial.

The equities in Hale’s and Susbauer’s favor are especially strong because they are facing the death penalty with a “heightened standard” evidentiary sentencing process. See Simmons v. South Carolina, 512 U.S. 154, -, 114 S.Ct. 2187, 2198, 129 L.Ed.2d 133 (1994) (Souter, J. concurring) (Eighth Amendment requires “heightened standard ‘for reliability in the determination that death is the appropriate punishment in a specific case.’ ”) (quoting Woodson v. North Carolina, 428 U.S. 280, 305, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)).

IV. Plaintiffs’ Arguments

A Wiretapping Act

Plaintiffs argue that the tape violates the Wiretapping Act and cannot be introduced as evidence in the criminal trial. 18 U.S.C. § 2515. Assuming Hareleroad violated the Wiretapping Act, section 2515 probably does not require suppression or destruction of the tape.

First, plaintiffs cite no cases in which the section 2515 exclusionary rule prevented, a surreptitiously taped defendant from introducing the tape. In fact, cases suggest that the section 2515 exclusionary rule is meant to deny government officials the right to use illegally obtained evidence. In re Proceedings to Enforce Grand Jury Subpoenas, 430 F.Supp. 1071, 1072-73 (E.D.Pa.1977).

Even if the tape may not be used as direct evidence, it may be used for impeachment. United States v. Echavarria-Olarte, 904 F.2d 1391, 1397 (9th Cir.1990). Additionally, plaintiffs cite no cases in which the section 2515 exclusionary rule prevented the use of illegally taped conversations in the sentencing phase of a death penalty case. Finally, plaintiffs may not have standing to seek suppression of the tape. See In re Vigorito, 499 F.2d 1351 (2d Cir.) (no standing for persons, whose conversations were overheard pursuant to court-ordered electronic surveillance, to seek section 2515 exclusion when they were not criminal defendants or grand jury witnesses), cert. denied, 419 U.S. 1056, 95 S.Ct. 640, 42 L.Ed.2d 654 (1974).

Because there are several possible exceptions to section 2515’s mandate of exclusion, I reject plaintiffs argument that section 2515 requires destruction of the tape. The issue is more properly addressed to the state court trial judge.

B. Other Arguments

Plaintiffs argue that no competing rights prohibit destruction of the tape and transcript. I disagree. Although Oregon law protects clergy-penitent communications, the penitent possesses the privilege. ORS 40.260 (Or.Evid.Code 506); State v. Cox, 87 Or.App. 443, 448, 742 P.2d 694, 696 (1987) (the privilege to disclose or keep the confessional confidential “belongs to the penitent”). Plaintiffs’ rights, assuming ORS 40.260 protects them, must yield when Hale himself seeks to preserve the intended confession.

Plaintiffs also maintain that the rules of evidence would prevent Hale or Susbauer from using the tape or transcript in their criminal trials. This argument demonstrates just how inappropriate a federal court order requiring destruction of the tape would be. It is precisely these evidentiary questions and arguments that the state trial court judge should resolve. I have complete confidence in the state judge’s ability to ensure a fair trial.

Plaintiffs further suggest that Hale’s and Susbauer’s rights will be protected because the Oregon and federal courts on direct appeal and post-conviction review can determine whether Hale and Susbauer received a fair trial. However, immediate destruction of the tape and transcript would prevent those courts from making that determination. Plaintiffs’ argument is unsupportable.

Finally, because I am abstaining under Younger, plaintiffs’ request for declaratory relief is barred. Hirsh v. Justices of the Supreme Court of Calif., 67 F.3d 708, 712 (9th Cir.1995) (citing Samuels v. Mackell, 401 U.S. 66, 73, 91 S.Ct. 764, 768, 27 L.Ed.2d 688 (1971)).

CONCLUSION

Plaintiffs’ claims are dismissed.

APPENDIX A

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

The Reverend Timothy Moekaitis, and The Most Reverend Francis E. George, O.M.I., Plaintiffs, v. F. Douglass Hareleroad, The Honorable Jack A. Billings, The Honorable Kip W. Leonard, Conan Wayne Hale, Jonathan Wayne Susbauer, and John Does Nos. 1-5, Defendants.

Civil No. 96-00913-PA

STIPULATED FACTS

I. AGREED FACTS [THOSE AS TO WHICH RELEVANCE IS DISPUTED ARE MARKED WITH AN ASTERISK]

1. The Reverend Timothy Moekaitis (“Fr. Moekaitis”) is an ordained priest of the Roman Catholic Church, serving in the Archdiocese of Portland in Oregon (“Archdiocese”).

2. Fr. Moekaitis currently serves as Pastor of St. Paul’s Parish in Eugene, Oregon.

3. The Most Reverend Francis E. George, O.M.I. (“Archbishop George”) is an ordained priest of the Roman Catholic Church and the Archbishop of the Archdiocese of Portland in Oregon.

4. Under the law of the Roman Catholic Church (“Canon Law”), Archbishop Francis George is the representative of Christ, a successor to the apostles and the chief Catholic religious official of the Church in Western Oregon.

5. Under Canon Law and religious doctrine of the Roman Catholic Church, Archbishop George is responsible for all aspects of the practice of the Roman Catholic religious faith in western Oregon.

6. Under Canon Law and religious doctrine of the Roman Catholic Church, Archbishop George is responsible for insuring that his priests and people have proper access to the institutions and Sacraments intended to foster their spiritual life.

7. Under Canon Law and religious doctrine of the Roman Catholic Church, Archbishop George is responsible for insuring the proper celebration of the Sacraments in Western Oregon.

8. Defendant F. Douglass Hareleroad (“Hareleroad”) is the District Attorney for Lane County, Oregon. Hareleroad is ultimately responsible for the acts of persons in his office and prosecution of crimes within Lane County, Oregon.

9. Defendant the Honorable Kip W. Leonard (“Judge Leonard”) is the Presiding Judge of the Lane County Circuit Court.

10. Defendant the Honorable Jack A. Billings (“Judge Billings”) is a Lane County Circuit Court Judge.

11. Conan Wayne Hale (“Hale”) is an individual, residing at all material times in the Lane County Jail. Hale is a suspect in numerous capital and non-capital crimes, some of which are alleged to have been committed together with defendant Jonathan Wayne Susbauer.

12. Jonathan Wayne Susbauer (“Susbauer”) is an individual, presently residing in the Lane County Jail as a suspect in numerous capital and non-capital crimes, some of which are alleged to have been committed together with defendant Hale.

13. On or around April 18, 1996, Hale requested to meet with a priest of the Roman Catholic faith to receive the Sacrament of Penance (also called the Sacrament of Reconciliation or “confession”).

14. The Sacrament of Penance is one of the seven (7) Sacraments of the Roman Catholic Church.

15. A Sacrament is for Catholics an outward sign of the spiritual grace of God.

16. Under religious doctrine of the Roman Catholic Church, the Sacraments are the principal means by which the Catholic faith is expressed and strengthened, worship is rendered to God, and the sanctification of humankind is effected.

17. The Sacrament of Penance is an ancient religious practice of the Church, having its basis in the New Testament scriptures of the Bible.

18. Under religious doctrine of the Roman Catholic Church, in the Sacrament of Penance the priest functions in the person of Christ and under Church doctrine divine forgiveness is mediated sacramentally through the Church.

19. Under religious doctrine of the Roman Catholic Church and Canon Law, the contents of communication between priest and penitent are absolutely secret and confidential.

20. No priest of the Roman Catholic Church may divulge anything said by the penitent during the Sacrament of Penance upon pain of excommunication, but no similar doctrine constrains the penitent from disclosing anything said during the Sacrament of Penance.

21. Under Canon Law and religious doctrine of the Roman Catholic Church, the “Seal of the Confessional” is the strict obligation to maintain silence concerning that which is disclosed in a sacramental forum. The obligation of confidentiality arises once the confession is commenced, even if the confession is sacrilegious (without repentance) or if absolution (forgiveness of sins) is refused or deferred. No exception of the seal is made, even for the common welfare; in any case of doubt the confessor must favor the seal. The “Seal of the Confessional,” is of utmost importance to the religious practices and beliefs of Roman Catholics.

22. Subsequent to the publication of the Code of Canon Laws, the Congregation for the Doctrine of the Faith of the Roman Catholic Church in Rome provided for an additional penalty. A decree was issued in 1988 automatically excommunicating anyone who recorded on an instrument or otherwise published anything, whether true or false, said in sacramental confession. (AAS 80 (1988) 1367). A copy of the Latin language issue of this decree is appended as Exhibit AA

23. While under Canon Law the confessor priest is always bound by the seal of the confessional, the penitent is not. The penitent may talk about what occurred within the sacramental forum. However, the penitent may not release the confessor from his incapability under Canon Law to testify in church and civil court.

24. Under Canon Law of the Roman Catholic Church, it is not necessary that a penitent be a member of the Roman Catholic faith for the seal of the confessional to apply.

25. On or about April 22, 1996, Fr. Moekaitis came to the Lane County Jail with the express purpose of administering the Sacrament of Penance to Hale.

*26. Upon appearing at the visitors’ entrance to the visiting area of the Lane County Jail, Fr. Mockaitis signed in on a book provided for that purpose.

*27. Fr. Mockaitis was wearing the Roman collar which signifies his vocation as a Roman Catholic priest.

*28. Fr. Mockaitis was known to personnel at the Lane County Jail because of his prior visits to the Jail for purposes of administering the Sacrament of Penance at the request of other inmates in the Lane County Jail.

*29. Before Fr. Mockaitis was first allowed to conduct such religious work at the Lane County Jail, he was required to furnish to members of the Lane County Sheriffs Department at the Lane County Jail a written proof of his ordination as a Roman Catholic priest, which he did, as well as providing photograph identification.

30. On or about April 22,1996, employees of the Lane County Sheriffs Department knew that Fr. Mockaitis was a validly ordained Roman Catholic priest who came to the Lane County Jail with the specific purpose of administering the Sacrament of Penance to Hale.

*31. On or about April 22,1996, the sign-in area for visitors at the Lane County Jail contained a sign bearing several, numbered instructions as posted orders for visitors made by the Lane County Sheriffs Department. Among those posted orders was a statement by the Lane County Sheriffs Department that “no recording equipment is allowed” in the Jail’s visiting area.

*32. Neither the Lane County Sheriffs office nor any of the posted orders in the Jail informed Fr. Mockaitis that his administration of the Sacrament or any other communication with Mr. Hale would be monitored, intercepted or recorded.

*33. Defendant Harcleroad and his agents in the Lane County District Attorney’s office were familiar with the physical layout, the posted orders, and the usual procedures of the Lane County Jail.

34. Fr. Mockaitis communicated with defendant Hale via a telephonic device that allows inmates to converse with visitors despite the presence of a glass partition between them.

35. Prior to communicating with Hale, Fr. Mockaitis believed the communication would be confidential and was not aware it would not be confidential.

36. Unknown to Fr. Mockaitis, Ms commumcation with Hale was intercepted and taped on audiocassette by the officers or employees of the Lane County Sheriffs Department, as requested by Hareleroad through assistant district attorneys.

*37. Fr. Mockaitis had admmistered the Sacrament of Penance to inmates at the Lane County Jail on occasions prior to April 22, 1996 and to Ms knowledge, none of those eommumcations were intercepted or recorded, and he was not aware of any practice to record eommumcations with inmates.

38. If Fr. Mockaitis had knowledge his commumcation with Hale was to be recorded, he would not have come to the Lane County Jail m response to the request to admimster the Sacrament of Penance.

39. Fr. Mockaitis was unaware Ms eommumcation with Hale had been momtored, mtercepted or recorded until he was contacted subsequently by a reporter from the Eugene Register-Guard.

*40. No court order, search warrant, order pursuant to O.R.S. 133.724 or O.R.S. 133.726, or any other court authorization, was obtained prior to the momtormg, mterception and recording of the commumcation between Fr. Mockaitis and Hale.

41. On or around April 23,1996, the Lane County District Attorney’s Office assisted members of'the Lane County Sheriffs Department in obtaining a search warrant signed by Judge Hodges allowing its employees to search the audiocassette tape and seize the statements on the tape.

*42. The affidavit used to obtain the search warrant, prepared with the assistance of the Lane County District Attorney’s office, stated in part:

I know from my experience and training that 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 acknowledgement of what that wrongdoing is. After the person gives that acknowledgment of what he or she has done wrong, the priest prescribes a penance. Upon performance of the penance, a person is absolved of Ms or her sins.

43. A true copy of the Affidavit supporting issuance of the search warrant and the search warrant is appended hereto as Exhibit BB.

44. On or after April 23, 1996, employees of the District Attorney’s office and a deputy sheriff intentionally listened to the contents of the tape.

45. The tape was transcribed into a typed document.

46. Joseph M. Kosydar and Patricia Per-low, who are Deputy District Attorneys m Lane County, and Jeffrey Carley and Brandy Selby who are employees of Lane County, have some or full knowledge of the contents of the tape. Terri Wood and her co-counsel Steve Miller have listened to the tape.

47. Defendants Hareleroad, Billings and Leonard were at all times material actmg under color of state law.

48. On or about May 7, 1996, plaintiffs’ representatives requested that Hareleroad destroy the tape and all copies.

*49. The predecessor of plaintiff Archbishop George formalized plaintiffs request to destroy the tape by a letter dated May 21, 1996, a copy of which is attached as ExMbit CC.

50. On or around May 22, 1996, the tape of the commumcation and a transcript of the tape were delivered by agents of Hareleroad to Judge Leonard.

51. On May 22, 1996, Hareleroad filed a motion in the Lane County Circuit Court, for an order sealing the tape and transcript and proMbiting those with knowledge of the tape or transcript’s contents from disclosing those contents. On the same day, Judge Leonard signed the requested order. The order was captioned “In the Matter of A TAPE RECORDING OF CONAN WAYNE HALE MADE AT THE LANE COUNTY JAIL ON APRIL 22, 1996,” and a copy of the Amended Order is appended hereto as ExMbit DD.

*52. On June 12, 1996, at 11:42 a.m., plaintiffs filed m Lane County Circuit Court, a petition and motion requesting an order to destroy the tape and transcript. The petition and motion was captioned “In the Matter of A TAPE RECORDING OF CONAN WAYNE HALE MADE AT THE LANE COUNTY JAIL ON APRIL 22,1996.”

*53. The petition and supporting documents were taken from the filing clerk by Judge Leonard and were subsequently transferred to Judge Billings.

*54. A copy of the petition and the motion and supporting affidavits are attached hereto marked as Exhibits EE, FF, and GG.

*55. By letter dated June 13,1996, Judge Billings returned to plaintiffs’ counsel the petition and motion and all supporting materials plaintiffs had filed the previous day.

*56. In his letter of June 13, 1996, Judge Billings wrote that plaintiffs had no standing and that plaintiffs’ petition did not present a “justiciable controversy.” The letter also advised that “except upon further motion of one or both of the parties, or upon directive of some higher court, this Court will not consider, under any circumstances, the action which your clients desire.” A copy of the June 13, 1996, letter from Judge Billings is attached hereto as Exhibit HH.

57. On June 13, 1996, Hale moved to preserve the tape and transcript as evidence, and Judge Billings signed an order granting that motion. A copy of that June 13, 1996, order is attached hereto as Exhibit II.

58. Under the religious doctrine of the Roman Catholic Church, the continued existence of a tape and transcript of a communication under the seal of the confessional would violate the sanctity of the seal of the confessional.

59. Hale was served with an Indictment in Lane County Circuit Court for the State of Oregon, Case No. 10-96-04830, on May 30, 1996, prior to the filing of plaintiffs’ Complaint. The Indictment charged Hale with 22 counts of aggravated murder and other alleged crimes.

60. Defendant Hale is represented by counsel in the aforesaid aggravated murder prosecution. On 13 June 1996, Hale’s counsel moved to preserve as evidence during pendency of his prosecution the tape and transcript which are the subject of plaintiffs’ Complaint. Defendant Jack A Billings, Circuit Court Judge, granted said motion.

61. Hale pled not guilty to the crimes alleged in the Indictment, and demanded trial by jury.

62. ORS 163.150 includes death as a possible sentence for a person convicted of aggravated murder, as that crime is alleged against defendant Hale.

63. The State of Oregon, through defendant F. Douglass Harcleroad, has announced its intent to seek the death penalty against defendant Hale.

64. Defendant Harcleroad agrees not to introduce the tape or transcript of the communication (or the fact that a communication between Fr. Moekaitis and defendant Hale occurred) in the trial of defendant Hale or defendant Susbauer, except to rebut allegations made by defendant Hale or defendant Susbauer about the conversation, the tape or its contents.

65. Defendant Harcleroad has not used and agrees not to use the tape or transcript of the communication between Fr. Moekaitis and defendant Hale to develop evidence against defendant Hale or defendant Susbauer.

66. Defendant Harcleroad will ask the Lane County Circuit Court for permission to destroy the tape and transcript upon the conclusion of all proceedings related to the prosecution, conviction, or sentence of defendants Hale and Susbauer.

67. Prior to the commencement of this action, Lane County agreed not to intercept or tape conversations between Catholic clergy and inmates at the Lane County Jail.

68. Defendant Susbauer is accused in Lane County Circuit Court Case No. 10-96-00479 of a number of crimes, including three separate offenses of aggravated murder. The punishment for aggravated murder includes death by legal injection. Defendant Susbauer has plead not guilty to the allegations of that indictment and awaits trial.

69. In recording the communication between Defendant Hale and Fr. Moekaitis, jail personnel claim to have been acting pursuant to ORS 165.540(2)(a).

*70. As long as any copy of a tape or transcript of his communication with Conan Wayne Hale on April 22, 1996, remains in existence, Fr. Mockaitis feels uncomfortable with administering the Sacrament of Penance in the Lane County Jail.

*71. Fr. Mockaitis’ regular duties as a priest require him to respond to people who ask him to administer the Sacrament of Penance, even outside his parish church building. His ability to respond is especially important for people who may be in a serious state of sin and therefore in particular need of the Sacrament of Penance.

*72.

73. The facts stated in Paragraphs 70-72 apply to other priests of the Roman Catholic religious faith for which Archbishop George has responsibility, in addition to Fr. Mockaitis.

74.

75. Prior to communicating with Hale on April 22, 1996, based upon the facts of which he had knowledge, Fr. Mockaitis had no reason to believe his communication with Hale would not be confidential.

76. Inmates at the Lane County jail communicate with visitors (except for legal counsel) through an intercom system. An inmate sits on one of six stools separated from the visitors’ area by a waist-height partition topped by a pane of glass. Each visiting room accommodates six inmates’ conversations with visitors.

77. To preserve institutional security, Lane County monitors, on an inmate by inmate basis, the intercom conversations of inmates charged with serious crimes.

78. The Lane County Sheriffs Department monitored defendant Hale’s conversations with approximately 90% of his visitors except Hale’s legal counsel.

79. The telephonic device described in Paragraph 34 cannot be used to place calls to or receive calls from persons outside the jail.

80. Hale informed others that his jailers were monitoring his conversations and communicated with visitors in writing when he did not want jailers to monitor his communications.

81.

82. On June 13, 1996, Hale’s defense counsel moved to preserve as evidence during the pendency of his prosecution the tape and transcript which are the subject of plaintiffs’ Complaint.

83. On July 31, 1996, Judge Billings heard argument on a defense motion for discovery which included, inter alia, a request for defense counsel to listen to the taped conversation between Hale and Fr. Mockaitis. The State did not oppose the motion. Judge Billings granted that portion of the motion, and further ordered that Hale’s counsel not discuss the contents of the tape recording with anyone except themselves and Hale. Defense counsel listened to the tape on August 1,1996.

84.

85.

86.

87.

88.

89.

IT IS SO STIPULATED.

SCHWABE, WILLIAMSON & WYATT Dated: 8-12-96

By: [Signature]

Thomas V. Dulcich, OSB# 80210

Bradley I. Nye, OSB# 92604

John R. Faust, Jr., OSB# 58024 Of Attorneys for Plaintiffs

ATTORNEY GENERAL FOR THE STATE OF OREGON, Theodore R. Kulongoski

By: /s/ Gregory A. Chaimov

Gregory A. Chaimov,

OSB# 82218

Of Attorneys for Defendants Harcleroad, Billings and Leonard

[Signature]

Terri Wood, OSB# 88332

Attorney for Defendant Conan Wayne Hale

/s/ Michael Phillips

Michael V. Phillips, OSB# 69137

Attorney for Defendant Jonathan Wayne Susbauer

EXHIBIT AA

ConQrtQatio pro Doctrina . ji 1367

ACTA congregationum

CONGREGATIO PRO DOCTRINA FIDEI

URBIS et ORBIS

DECRETUM

quo, ltd Poenitentiae aacramentum tuendum, excommunicato latae fen* Irniinc illi quicumque ea quae a confeaeario et a poenitente dicuntur vel per Instrumenta technics captat vel per communicationis socialis instrumenta rMilíta!. infertur.

Cnngregatio pro Doctrina Fidei, ad sanctitatem Bacramenti PocniIi-uIkic tuendam et ad eiusdem ministrorum ac christifidelium iura inuiiiunda quae ad sacraméntale sigillum attinent et ad alia 6ecreta rum Confessione conncxa, vigore specialis facultatis sibi a Suprema Iv'dusiae anctoritate tributae (can. 30), decrevit:

Firmo praescripto can. 138S, quicumque quovis technico instrumento i*» quae in Sacramentan Confessione, vera vel ficta, a sc vel ab alio pcracta, a confessario vel a poenitente dicuntur, captat, aut communirationis socialis instruments evulgat, in excommunicationem latae Hi'iitmitiae incurrit.

Decretum hoc/vigere incipit a die promulgation^.

Iosephds Card. Ratzinger, Praefectus

b. * S.

Albertus Bovone, Arcbiep. tit. Caesarien, in Numidia, o Secretis

In Conpr. pro Doctrino Fidei lob., 1». 57/75.

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IN THE DISTRICT COURT.OF THE STATE OF OREGON FOR LANE COUNTY

STATE OF OREGON

County of Lane

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ss. SEARCH WARRANT

IN THE NAME OF THE STATE OF OREGON

To any police officer, greeting;

Information on oath having this day been laid before me that evidence of the crime of murder, to wit: the contents of an audio cassette recording of the confession made by Conan Wayne Hale to Father Mockaitis located at the Lane County District Attorney’s Office at 125 East 8th Avenue, Eugene, Lane County, Oregon.

you are therefore hereby commanded to ’search the above described audio cassette tape for the above described evidence.

and if you find the same, or any part thereof, to return this warrant and an inventory of items seized to me at my office in the Lane County Courthouse, Eugene, Oregon, no later than five (5) days following’ execution of this warrant.

This warrant to be executed between 7:00 a.m. and 10:00 p.m.

( ) This warrant to be executed at any time day or night.

Dated this "2-3 ~ day of April, 1996, at [ I'.

rasWrmDEm:

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AT.//.-ÍÍ?..O'CLOCK./^-.......M

APR 2 3IS36

Circuit/Districi Courts

for Lane. Coxulty, Oregon

rv

IN THE DISTRICT COURT OF THE STATE OF OREGON FOR LANE COUNTY

STATE OF OREGON

County of Lane

) ) )

ss. ■ SEARCH WARRANT

IN THE NAME OF THE STATE OF OREGON

To any police officer, greeting.

Information on oath having this day been laid before me that evidence of the crime of murder, to wit: the'contents of an audio cassette recording of the confession made by Conan Wayne Hale to Father Mockaitis located a: the Lane County District-Attorney’s Office at 125 East 8th Avenue, Eugene, Lane County, Oregon.

you are therefore hereby commanded to search the above described audio cassette tape for the above described evidence.

and if yc-u find the same, or any part thereof, to return this warrant and an inventory of items seized to me at my office in the Lane County Courthouse, Eugene, Oregon, no later than five (5) days following execution of this warrant.

J^C^This warrant to be executed between 7:00 a.m. and 10:00 p.m.

() This warrant to be executed at any time day or night.

Dated this"^-!^^*— day of April, 1996, at .m.

ErsTRlC^COURT JUDGE

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IN THE DISTRICT COURT OF THE STATE OF OREGON FOR LANE COUNTY

STATE OF OREGON

COUNTY OF LANE

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SS. AFFIDAVIT FOR SEARCH WARRANT

I, Jeffrey James Carley, being first duly sworn on oath, hereby depose and say, that:

I am a detective with the Lane County Sheriff’s Office and have been employed in law enfcrcemer.: for IS years.

I hs-.e been assigned to investigate the murder of three individuals who were killed on or about December 21. 1995 in Lane County, Oregon, on a logging landing near McGowan Creek. Jonathan Wayne Susbauer has been indicted for those murders and other related crimes in Lane County Circuit Court Case No. 10-96-00479. Conan Wayne Hale has been identified as a suspect in the murders and is being held at the Lane County Adult Corrections Facility on burglary and theft charges in Lane County Circuit Court Case No. 10-96-00478.

Attached as exhibit A is a copy of an affidavit and search warrant related to this case authorized by Judge Hodges of the Lane County District Court on December 26, 1995 and executed on December 27, 1995. That affidavit outlines the factual background of this investigation.

I interviewed Conan Wayne Hale on December 27, 1995, after the time of the affidavit in exhibit A. Conan Hale has told me that he was at the logging landing when the three victims were killed. He admitted hitting the two males with a baseball bat but denied firing the .38 revolver which killed them. I have reviewed the medical examiner’s report and there is no physical evidence to corroborate Conan Hale’s statement that he hit the males with the baseball bat. Conan Hale’s DNA sample did not match the DNA recovered from Kristal Bendele’s body and clothing. Conan Hale has admitted his involvement in the two burglaries and the thefts described in exhibit A.

Conan Wayne Hale has been lodged at the Lane County Adult Corrections Facility since December 27, 1995 except for times he was transponed to Marion County on other charges. During Conan Hale’s stay at the Lane County Adult Corrections Facility his phone calls and visits have been recorded pursuant to ORS 165.540(2)(a). I have reviewed many of-the audio cassette tapes of those visits and phone calls. Conan Hale is aware that his visits are being recorded. He has demonstrated his awareness that visits are recorded by holding up signs that communicate information to the visiting party and advising that person not'to repeat the miormaticn o\er tne pnon.e. ^ ^ u.. //¡< sg7_.

I Darned from Sgt. Bud Spencer, supervisor at the Lane County Adult Corrections Facility, that or. or before April 18, 1996 Conan Wayne Hale made arrangements to have a Catholic priest visit him on April 22, 1996 for the purpose of making a confession. On April 22, 1996 at 9:35 a.m. Conan Hale met with Father Mockaitis of St. Paul’s Catholic Church in the visiting booths at the jail. Thar conversation was conducted via phone between the two rooms separated by glass. The conversation was recorded on an audio cassette tape per usual practice and was delivered to me by jail personnel who retrieved it from the recording machine. The tape is currently in the custody, of the District Attorney’s office where it is sealed and secured.

I know from my experience and training that 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. After the person gives that acknowledgment of what he or she has done-wrong, the priest prescribes a penance. Upon performance of the penance, a person is absolved of his or her sins.

Based on the aforesaid information, your affiant has probable cause to believe, arid does believe, that evidence of the crime of murder, to wit: a statement by Conan Wayne Hale can be seized from an audio t2pe located in ihc office of the Lane County District Attorney, 125 East 8th Avenaer-Eugene, Oregon.

Wherefore, your affiant respectfully requests the court to review this affidavit in its entirety, and issue a search warrant to search the above described audio tape for-the above

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IN THE DISTRICT COURT OF THE STATE OF OREGON FOR LANE COUNTY

STATE OF OREGON

COUNTY OF LANE

) ) )

SS.

AFFIDAVIT FOR SEARCH WARRANT

I, Dennis A. Williams, being first duly-sworn on oath, do hereby depose and say:

That I am a Detective with the Eugene Police Department and have been employed in law enforcement for over 24 years. That I am presently assigned to the Property Crimes Unit of the Eugene Police Department to investigate property crimes, including theft and burglary.

That during the course of my duties I became aware of a burglary that occurred at 3676 Wilshire, Eugene, Lane County, Oregon. That this burglary occurred on December 14, 1995 and is documented under Eugene Police ease report 95-24642. A copy of the police report is attached to this affidavit and incorporated herein in its entirety and referred to hereafter as exhibit “A”.

That on December 23, 1995, I was informed by Eugene Police Detective Kathryn Flynn of the following: That while conducting a follow up investigation of this burglary she discovered Conan Wayne Hale had sold sixty-four compact discs to AA Ace Buyers, 3697 Franklin Boulevard, Eugene, Lane County, Oregon, on December 14, 1995, at 11:58 a.m. That she contacted Oren Silas Peterson, an employee of AA Ace Buyers at 3697 Franklin Boulevard, Eugene, Lane County, Oregon, regarding person(s) selling items from this burglary including Compact Discs whose titles were provided by the victim and are included in a supplemental report which is attached to this affidavit and referred to hereafter as Exhibit “B”.

That Peterson told Detective Flynn he remembered the subject coming into the store with the involved compact discs in an athletic bag and selling them. That Peterson said he identified the subject using an Oregon driver’s license and the photo on the license matched the person selling the compact discs. That the Oregon driver’s license number matches that of Conan Wayne Hale, listing an address of 4283 E. 20th Avenue, Eugene, Lane County, Oregon. That the person signed the Secondhand Dealer Report slip number 156526 with the name Conan Wayne Hale.

That on December 24, 1995, members of the Lane County Sheriffs office and the Eugene Police Department served a search warrant on the residence of Jonathan Wayne Susbauer searching for items related to this burglary. A number of items from this burglary were recovered in Jonathan Wayne Susbauer’s residence. Mr. Susbauer was interviewed by police officers after the items were recovered and I heard Jonathan Wayne Susbauer admit that he and Conan Wayne Hale were responsible for committing the burglary of the above described residence. I have reviewed the police report listing stolen property related to the above related case and have identified property seized from Mr. Susbauer related to this burglary. This document is attached hereto and incorporated by this reference as Exhibit “C”. Items on the attached list which are not marked as recovered remain outstanding and have not been recovered.

Further, on December 19, 1995, there was a burglary that occurred at 1268 Brookside, Eugene, Lane County, Oregon. Details of this burglary are documented in Eugene Police Department Case Number 95-24964. A copy of this report is attached hereto and incorporated by this reference herein as Exhibit “D”. In the interview conducted with Jonathan Wayne Susbauer on December 24, 1995, Mr. Susbauer identified Conan Wayne Hale as helping participate in the Burglary. That in this burglary, sports memorabilia was stolen including a football helmet and football collectors cards.

That the football helmet stolen in this burglary was sold by Jonathan Wayne Susbauer on December 19, 1995. The sale of the helmet was witnessed by Jon Richard Dugdale from Action City Sportscards at Valley River Center. On December 23,1995 I displayed a photo lineup to Mr. Dugdale which contained a picture of Jonathan Wayne Susbauer. He identified a picture of Mr. Susbauer in the lineup saying “he really looks like the guy.” Earlier in the same day football collector cards were sold to the same business. In that transaction, the seller identified himself by a Oregon Drivers license with the name of Conan Wayne Hale, and that the picture on the license matched the person making the sale. The person who purchased the football cards was John Quincy Adams, the owner of the business. Mr. Adams was unable to identify Conan Wayne Hale from a photo lineup that I prepared. However, Mr. Dug-dale told me that the person who was present when he purchased the football helmet from Mr. Susbauer was the same person that had sold the football cards earlier in the day. Jonathan W. Susbauer stated that he was with Conan Wayne Hale during the incident when Conan Wayne Hale sold football cards from the 1268 Brookside burglary in the incident described by Mr. Adams.

In a related incident, I was assigned to assist in an investigation involving the murder of three youths, Brandon M. Williams, Kristal R. Bendele, and Patrick M. Finley, which occurred during the late evening hours of December 20, 1995 or the early morning hours of December 21,1995.

In connection with this investigation I have spoken to Lane County Sheriffs Deputies, other Eugene Police Detectives, Oregon State Police officers and District Attorney Investigator Tom Yates. I have learned from investigative team briefings and specifically from Sgt Earl McMullen, Lane County Sheriffs office, that one of the victim’s of the murder was Patrick M. Finley. That when Patrick Finley’s body was discovered in a remote area near McGowan Creek that he was wearing a coat from the burglary which occurred on December 19, 1995 at 1268 Brookside Drive, Eugene, Lane County, Oregon. Additionally, that the bullets which caused the death of Brandon M. Williams and Kristal R. Bendele appear to be .38 cal semi wadcutter bullets. A .38 cal pistol was stolen in the burglary at 1268 Brookside, Eugene, Oregon. Additionally, a quantity of ammunition was stolen which has been subsequently described by the victim to be hand loaded semi wadcutter ammunition contained in a green plastic container.

In connection with the investigation of the murders of these individuals, a person identified as Michael Black, has informed Lane County Sheriffs detectives that he observed Brandon Williams, Kristal Bendele and Patrick Finley, enter a Suburban truck about 11:30 p.m. on the night of December 20,1995. That Conan Wayne Hale was a person who was riding in the truck and invited the three victims to get into the truck at that time.

I have been told by Tom Yates and Jeff Carley, LCSO detective, that Jonathan Wayne Susbauer has admitted to being the driver of the suburban truck during this incident, and that after the three persons were picked up by Conan Wayne Hale and himself, that the five of them drove to a remote area near McGowen Creek and that while at that location, both he and Conan Wayne Hale participated in kilting the three individuals. That during the incident, Conan Wayne Hale was wearing a black trench coat and brown leather gloves. That the weapon used to kill the three victims was a .38 cal pistol that was taken in the burglary at 1268 Brookside along with football collectors cards and a football helmet. That he and Conan Wayne Hale sold items in this burglary at Action City Sporteards in the incident described above.

Jonathan Wayne Susbauer stated that during the shooting of the three victims a number of rounds of ammunition were fired by himself and Conan Wayne Hale from the .38 cal pistol. Mr. Susbauer believed the number to be 11. That during the incident the three victims were required to disrobe before they were shot. That at one point a rabbit for jacket taken from 1268 Brookside was removed from the vehicle and ultimately was left at the scene of the murder. I learned from Sgt. McMullen that when Patrick Finley was discovered, he was wearing the rabbit for jacket identified as coming from the 1268 Brookside burglaiy. A receipt with the victim’s name was located in the pocket of the coat.

Jonathan Wayne Susbauer told Detectives Yates and Carley that Conan Wayne Hale had engaged in numerous sexual acts with Eristal Bendele prior to her death. Further, that Susbauer had fondled her breasts and buttocks but that he had not had sexual intercourse with Kristal Bendele.

Jonathan Wayne Susbauer told Detectives Yates and Carley that he and Conan Wayne Hale had placed the clothing, floormats and garbage from the suburban into plastic garbage sacks and that the two individuals planned for Hale to dispose of the sacks and Susbauer to dispose of the .38 cal pistol.

Jonathan Wayne Susbauer told Detectives Yates and Carley that Conan Wayne Hale told him that Hale had buried the expended cartridges from the .38 pistol near a doghouse in the back yard of Conan Wayne Hale’s residence at 4283 E. 20th Avenue in Eugene, Lane County, Oregon. Further, that the plastic garbage sacks containing articles from the crime scene and Suburban, a machete, and baseball bat, yellow and red in color, the black trench coat and brown leather gloves used by Conan Wayne Hale during the incident, were last seen by Jonathan Wayne Susbauer on Friday December 22, 1995, at the Hale residence.

In connection with this investigation, a search of Jonathan Wayne Susbauer’s residence occurred pursuant to a search warrant and football cards and a suitcase listed as being stolen in the above mentioned burglary were recovered. The .38 cal pistol was recovered later at the same residence. Items not recovered from the 1268 Brookside burglary include a navy blue fleece liner to a jacket and a University of Oregon baseball cap with a tan bill. These items were not listed in the police report taken in connection with the burglary, but this information has been related to me by the victims of the burglary. Additionally, the rabbit fur jacket worn by Patrick Finley was also identified as coming from the 1268 Brookside burglary by the victim in a subsequent interview.

I know now from police computer records listed in the Area Information Records System (AIRS) that Conan Hale lists an address of 4283 E. 20th Avenue in Eugene, Lane County, Oregon.

On December 24,1995, the Suburban vehicle was located with the assistance of Jonathan Susbauer. That vehicle was impounded at the Oregon State Police Crime Lab. A search warrant was obtained and executed on the Suburban vehicle on December 25, 1995. Two of the seat belts had been cut, the ashtrays, lighter and floor mats had been removed.

On December 26, 1995, a search warrant was executed at the residence of Conan Wayne Hale. Located at the residence were two seat belts, two ashtrays and a lighter that are consistent with those missing from the Suburban. The search is continuing and items not recovered include .38 cal casings, clothing in garbage bags and some items from the Wilshire and Brookside burglaries.

On December 26,1995,1 received information from Springfield Police Detective John Umenhofer that Conan Wayne Hale had been seen with a .38 cal revolver after the time of the murders. The description of this gun is consistent with the one seized by police from Jon Susbauer.

Criminalist Gordon Rutter of the Oregon State Police has tested .38 caliber slugs found at the crime scene and determined that they were fired from the .38 cal revolver seized by police and which has been identified as the gun taken in the 1268 Brookside burglary.

Criminalist Bradford Putnam of the Oregon State Police has processed the vaginal and rectal swabs taken from Kristal Bendele at her autopsy. The samples tested positive for seminal fluid.

I know from my training and experience that seminal fluid samples of an unknown origin such as those retrieved from the vagina and rectum of Kristal Bendele can be compared with blood, oral swab and saliva exemplars of a known origin by a qualified criminalist and an expert opinion rendered whether they are from the same or different sources. Such an opinion would provide relevant and probative evidence concerning the identity of the person or persons having engaged in sexual activity with Kristal Bendele.

Further, I know that there is a medical facility available at the Lane County Adult Corrections Facility for the procurement of the requested exemplars and a duly qualified person will take the exemplars in a medically suitable fashion.

Based on the aforesaid information, your affiant has probable cause to believe, and does believe, that evidence of the crimes of rape, sodomy, sexual abuse, murder and aggravated murder to wit, blood, saliva exemplars and oral swabs can be found in the person of Conan Wayne Hale, dob 12/28/75, described as a white male, 5'10" tall, 190 lbs, brown hair, with hazel eyes and can be seized at the above described facility.

Efforts have been made in the last 24 hours to locate Conan Wayne Hale without success. His, mother, Katie Long Brown, has indicated that he is in hiding. Efforts to locate Hale include going to his residence and contacting all known relatives and associates. It is unknown when Conan Wayne Hale will be located. Therefore, I am requesting authorization to execute this search warrant at any time of the day or night.

THEREFORE, your affiant respectfully requests the court review this affidavit in its entirety, and issue a search warrant to seize the above described person for such time as is required to obtain the exemplars and search him for the above described evidence.

/s/ Dennis A. Williams

DENNIS A. WILLIAMS

Subscribed and sworn to before me this 26th day of Dec., 1995, at 8:47 P.M.

/s/ Bryan T. Hodges

DISTRICT COURT JUDGE

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Office of Archdiocesan Administrator

May 21,1996

F. Douglass Harcleroad, Esq.

Lane County District Attorney

Lane County District Attorney's Office

125 E. 8th Avenue

Eugene, OR 97401

Dear Mr. Harcleroad:

As the Administrator of the Archdiocese of Portland, I act in all matters related to the Catholic Church in Western Oregon. That responsibility includes insuring the integrity of our sacraments, including the Sacrament of Penance.

Catholics believe, that as a consequence of the death and resurrection of Jesus Christ, divine forgiveness is mediated sacramentally through the Church. A sacrament is a visible means instituted by Christ communicating the power of God. Among the sacraments of the Church, the Sacrament of Penance is a privileged moment of reconciliation. For Catholics, sin is above all an offense against God and a rupture of right relationship with Him and our neighbor. When an individual has sinned they are compelled to seek forgiveness and reconciliation through the Sacrament of Penance.

Tne obligation to keep secret anything known through the Sacrament of Penance is an intrinsic element of the Sacrament and a binding obligation of our Catholic faith. Canon 983 of the Code of Canon Law evidences the Sacrament’s inviolability by forbidding a priest to betray a penitent by any means for any reason whatsoever. A confessor who knowingly violates the confidentiality of the Sacrament incurs the penalty of automatic excommunication.

A Catholic who violates the Sacrament by recording it or taking part in such a recording has ruptured their relationship with the Church. The integrity of the Sacrament must remain absolute. As a citizen as well as a bishop I believe that the April 22,1996 tape-recording is not only a sacramental desecration but an impediment to the free exercise of our religion.

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The existence of a record of the Sacrament of Penance constitutes a living violation. The tape-recording of the Sacrament administered by Fr. Mockaitis to Conan Hale is not a past event but a present, ongoing sacramental transgressidn. As a bishop I have an obligation to end that continuing violation.

On May 7,1996 you me: with representatives of the Archdiocese. Through them I requested the destruction of the tape and a guarantee of the confidentiality of the Sacrament. During the intervening weeks. I hope that the seriousness of the situation has manifested itself. Dclicviujs dial considered reflection shows the validity of my request, i ask that you meet with Fr. Michael Maslowsky and other Archdiocesan representatives on June 4, 1996 in an attempt to properly resolve this situation.

Sincerely yours in Christ,

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IN THE CIRCUIT COURT FOR THE STATE OF OREGON FOR LANE COUNTY

In the Matter of A TAPE RECORDING OP CONAN WAYNE KALE MADE AT THE LANE COUNTY JAIL ON APRIL 22, 1996.

) ) ) ) )

AMENDED MOTION AND ORDER

COMES NOW the Sate of Oregon by and through F. Douglass Harcleroad, District Attorney for Lane County, and moves the Court to retain and seal the tape marked Exhibit 1 and transcript marked Exhibit 2 containing eleven (11) pages tendered hereby until further order of the Court. Exhibits 1 and 2 ate the originals and have not been copied. Further, the State requests that the Court order all persons with knowledge of the contents of this tape recording and transcript not to disclose the contents without further order of the Court.

DATED this 22nd day of May, 1996.

ORDER

IT IS SO ORDERED.

DATED this 'TX day of May, 1996.

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IN. THE CIRCUIT COURT OF THE STATE OF OREGON FOR LANE COUNTY

In the Matter of

A Tape Recording of Conan Wayne Hale Made at the Lane County Jail on April 22, 1996

No__

PETITION AND MOTION OF THE REVEREND TIMOTHY MOCKAITIS AND THE MOST REVEREND FRANCIS E. GEORGE FOR DESTRUCTION OF TAPE AND TRANSCRIPT

(Oral Argument Requested)

The Reverend Timothy Mockaitis (“Fr. Moekaitis”), for himself, and the Most Reverend Francis E. George, O.M.I. (“Archbishop George”), as the Roman Catholic Archbishop of Portland in Oregon, move for an order that the tape and transcript delivered to the Court by F. Douglass Harcleroad, District Attorney for Lane County, and sealed by this Court’s order dated May 22, 1996, be destroyed, and further, that the Court continue its order that all persons with knowledge of the contents of the tape and transcript not disclose its contents. Fo