Minister fights efforts by prosecutors to obtain information about confession

Friday, May 22, 1998

A Washington state minister told an appeals court panel that his religious beliefs forbid him from divulging to local prosecutors information he learned from an accused murderer in a confession during spiritual counseling.

Attorneys for the Rev. Rich Hamlin, a Tacoma, Wash., minister, addressed a three-judge panel of the Washington State Court of Appeals last week about statements made to him last year by Scott Anthony Martin, who has been charged with murdering his 3-month-old-son.

According to court records, prosecutors believe Martin may have told Hamlin that he violently shook the child days before the boy's death. Prosecutors may have discovered Hamlin's connection to Martin after Hamlin registered in Pierce County Jail as the suspect's pastor.

After Martin was charged in the fall of 1997, prosecutors asked a state judge to determine whether the state's clergy-penitent privilege protected statements made by Martin to Hamlin. The Pierce County judge, however, ruled that although Hamlin was indeed an ordained minister, Martin did not feel religiously compelled to make a confession to Hamlin. The judge said state law protects confessions only if required by the faith.

The judge then ordered Hamlin, who is a minister of the Evangelical Reformed Church, to tell prosecutors what Martin told him concerning the death of Martin's son or face court fines and jail time.

Hamlin refused, citing religious convictions.

Before being sent to jail, however, Hamlin's attorneys persuaded the Washington Court of Appeals to reverse the lower court's contempt order and hold hearings to decide whether prosecutor's demands for information violate Hamlin's First Amendment rights to the free exercise of religion.

“He has a religious obligation to behave a certain way,” Keith Kemper, one of Hamlin's attorneys, told the three-judge panel.

In a brief filed with the court, Hamlin's attorneys claim he “cannot teach, guide, or counsel those who come to him for confession without those persons being open and honest in the process.

“Without confidentiality in his counseling and participation in confession, Pastor Hamlin believes he cannot effectively carry out the ministry to which he has been called,” the brief argues.

Hamlin's lawyers also said the trial judge's ruling that the state's clergy-penitent law only protects members of certain churches subverts the separation of church and state.

Kemper told said that the trial judge construed the law to protect only members of Catholic, Episcopal and Orthodox churches.

“That interpretation of the statute renders it unconstitutional, because it protects some religions and not others,” he said.

Kit Proctor, the Pierce County prosecutor, told the judges that despite Hamlin's religious beliefs, the state has a compelling interest in forcing Hamlin to tell all.

“The right to free expression of religion does not relieve you from neutral, valid laws,” Proctor said.

Kemper, however, said the existence of the state's clergy-penitent law is evidence that the state does indeed put some communications beyond its interest in gathering information for prosecution.

“Essentially, what happens under such privilege statutes is that we are placing certain communications above the rights of the state,” Kemper said. “The bottom line is that the state does not have a right to everyone's testimony.”

A 1997 9th Circuit Court decision found that Oregon state officials had impermissibly targeted religious practices of a Catholic priest when conversations between the priest and a state inmate were secretly taped for prosecution purposes.

“The acts of the prosecutor here that are at the core of the plaintiffs' complaint did not amount to a neutral application of any Oregon statute but were an attempt to use the statutory authorization to monitor inmate conversations in order to gain access to a confession expected to be given in accordance with a religious rite,” the federal court concluded in Mockaitis v. Harcleroad.

According to Kemper, the Oregon prosecutor–like Proctor in Washington–had improperly construed the state's clergy-penitent statute to improperly obtain information from a religious conversation.

Ira C. Lupu, a constitutional law scholar and professor at George Washington University, said that the state law should be construed to include all religious confessions.

Washington state's clergy-penitent law “is not a religion-neutral law,” Lupu said. “It singles out religion for certain protections. By denying people, such as Hamlin, the privilege does burden his religious practices.

“The sounder thing for the judge to do here is to interpret the statute to cover all clergymen, regardless of whether their religion requires confessionals, and therefore deny the prosecution's attempts to force disclosure,” Lupu said.