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 offlcials 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 offlcials, 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. One decision of a lower court in New York in 1813 strenuously defended the seal of confession. In two cases in the United States Supreme Court dicta exist that justify the privilege, drawing an analogy to the immunity from testifying between husband and wife as well as between parent and child. The priest/penitent privilege is protected by statutes in all 50 statesÑa protection not challenged by scholars, attorneys or courts. The policy reasons underlying such statutes are clear and convincing.

Judge Noonan grounded his ruling on the Religious Freedom Restoration Act passed by Congress in 1993. That law, whose constitutionality was to be argued before the United States Supreme Court Feb. 19, stipulates that when a challenge is made to a law on the basis that it infringes on religious freedom, the burden of proof shifts to the defendant; that party has the duty of demonstrating that the restriction on religious freedom is required by some compelling interest of the government and that the restriction involved is the least burden that could be imposed to achieve the objective.

Noonan spells out at some length the reasons why the Religious Freedom Restoration Act is not unconstitutional as Oregon officials claim.

Noonan also criticized the Oregon procedure as a violation of the Fourth Amendment, which forbids unreasonable search and seizure.

This case, which threatened the seal of confession, is presumably now settled. But the accused Mr. Hale may still want to use his taped confession. It appears that Hale knew that his confession was being recorded by his jailers. In other instances, Hale signaled to his visitors not to speak because the conversation would be taped. Hale admitted to the priest the burglary he had already confessed to the police. But he accused his companion of the murder and asserted his own innocence of any homicide. Hale confessed to his anger at what he asserted were false allegations against him, presumably in the hope that his denial of the murder charges would be recorded and preservedÑto help him at a later time.

Hale had the right to reveal his confession although no penitent under canon law ever has the right to allow the confessor to speak about the confession. The right to the priest's absolute secrecy is available to every penitent, including, as in this case, a non-Catholic.

Even though there may be some attempt to use Hale's confession to assist him in the trial, the decision rendered by Judge John Noonan, a noted Catholic academic and author, will be a milestone in the legal protection of the seal of confession in American law.

Religious groups of every description filed briefs in this case on behalf of the Portland archdiocese and Fr. Mockaitis. These groups recognized that law enforcement officials arranged the wiretapping because they were terrified of the widespread public anger about the murders. The rebuke of these law enforcement officials by a federal appellate court will almost certainly deter other prosecutors and defendants from seeking to bring benefits to themselves by invading the sacred precincts of a sacramental confession.

Jarvis later told police that he thought that the person who claimed to be the "property owner" and the rapist were different people. Weeks later, at two police lineups, Jarvis identified Susbauer as the "property owner" and defendant possibly as the rapist. Krause was not able to identify the rapist when shown the same lineups.

On December 19, 1995, defendant and Susbauer broke into another house and again stole thousands of dollars worth of property including, among other things, a rabbit-fur jacket, a .38 caliber Taurus revolver with wooden grips, and 25 rounds of ammunition for the revolver. Before they left, they again slashed the furniture with a knife.

Late in the evening on December 20, defendant and Susbauer were riding around in the stolen Suburban. Susbauer was driving. They saw defendant's former girlfriend, Kristal Bendele, 15, her current boyfriend, Brandon Williams, 15, and two other young people, Patrick Finley, 13, and Michael Black, 15.

Defendant and Susbauer drove toward them and parked the Suburban. Defendant got out of the Suburban. He was wearing a black trench coat and jeans. Defendant offered the teenagers a ride, which Bendele, Williams and Finley accepted. Black declined. As Black walked away, he saw the Suburban slowly drive off in a different direction.

The next afternoon, December 21, 1995, two men found the nude bodies of Williams and Bendele at a logging landing on McGowan Creek. Bendele had been shot twice, once in the back and once in the left temple. Williams had been shot five times; three shots were to the head and face, one to the chest, and one to the back. Finley, barely alive, also was lying nearby. He, too, had been shot twice, once in the head and once in the shoulder. Among other things, he was wearing the rabbit-fur jacket that defendant and Susbauer had stolen in the earlier burglary. Finley died four days later without ever regaining consciousness.

The Taurus revolver later was proved to be the murder weapon; all the bullets recovered at the scene and from the bodies of the victims had been fired from that gun. Testing of the grip of the revolver revealed a mixture of DNA patterns, the most predominant of which matched that of Bendele. Semen obtained from Bendele's mouth, vagina, and anus was identified as Susbauer's. Semen on Bendele's shirt and on the rabbit fur jacket that Finley was wearing was identified as defendant's.

Defendant raises eight assignments of error respecting matters that he raised in pretrial motions. Three of those assignments raise constitutional challenges to the Oregon death- penalty statute that this court previously has considered and rejected. Another presents a constitutional challenge to the exclusion of convicted felons and nonregistered voters from the jury pool that this court previously has considered and rejected. None of those assignments of error warrants additional discussion.

Defendant advances nine assignments of error directed at the guilt phase of the trial.

Defendant assigns error to the trial court's exclusion of testimony that, in 1990, Susbauer had been the subject of a "high-risk felony stop," in which a police officer ordered Susbauer to lie face down on the ground. Defendant contended that that evidence was relevant to establish that it was Susbauer, not defendant, who was the main perpetrator of the crimes in the Jarvis/Krause attack and in the McGowan Creek murders. That is so, according to defendant, because, in both those criminal episodes, the perpetrator commanded the male victims to lie face down in a prone position.

Defendant claimed that the fact that Susbauer had experienced being ordered to lie face down makes it more likely that he was recreating his prior experience of power and powerlessness, and was the perpetrator of both criminal episodes.

The prosecutor objected to the admission of that testimony on the grounds that is was irrelevant and "it's other crimes." The trial court sustained the objection.

The state seems now to concede that the proffered testimony has some "minimal relevance." Instead, in its argument in support of the trial court's ruling, it focuses exclusively on establishing that the testimony amounted to "other crimes" evidence, which is inadmissible under OEC 404(3). OEC 404(3) provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

The state contends that the police officer's testimony amounts to propensity evidence -- that is, the state asserts that defendant offered the testimony to show that, because Susbauer once was ordered to the ground, he is more likely to be the person who ordered the male victims to the ground. Indeed, defendant himself has stated that that is the reason that he offered the evidence. However, that reason does not turn the evidence into inadmissible propensity evidence. In fact, it is not evidence that is subject to analysis under OEC 404(3) at all.

OEC 404(3) precludes the admission of evidence of a person's prior "crimes, wrongs or acts" to prove the character of that person to show that he or she later acted in conformity with them. The fact that a police officer once ordered Susbauer to lie face down is not itself a "crime" or a "wrong" or an "act" of Susbauer's, and we cannot see how it would tend to prove Susbauer's character in any event.

More importantly, defendant did not attempt to establish that Susbauer acted in conformity with his own prior act of lying face down. The proffered evidence does not fit within any category of what is known as "other crimes" evidence under OEC 404(3), and that rule does not provide a basis for excluding it.

However, notwithstanding the state's apparent concession as to relevance, we conclude that the proffered evidence is irrelevant and, therefore, was inadmissible. Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." OEC 401.

Defendant claims that evidence of Susbauer's earlier experience during the "high-risk felony stop" tends to make it more probable that he was the perpetrator of Jarvis/Krause attack and the McGowan Creek murders. We do not see the connection. In order to conclude from the fact that Susbauer had been ordered by a police officer to lie face down on one occasion five years earlier that Susbauer was the perpetrator of those crimes, a jury would have to make a series of inferential leaps that lack any factual predicate.

For example, the jury would have to infer that people who have had that experience are more likely than those who merely have read about it or seen it on television or in films to realize the intimidating nature of such an act, or that Susbauer, in particular, was scarred from the experience and wanted to inflict a similar experience on someone else, or even that evidence that might help to explain a person's motivation for acting in a particular way can be used to prove that the person in fact did act in that particular way. None of those inferences is warranted in this case. As a matter of law, the evidence was not relevant. It follows that the trial court did not err in excluding it.

Defendant's next four assignments of error concern the trial court's failure to ensure jury unanimity on many of the charges of aggravated murder. With respect to counts 20, 21, 27, 29, 35, and 37, which are based on the underlying crime of third-degree sexual abuse, defendant contends that the trial court should have identified for the jury the factual circumstances surrounding those crimes, including a particular instance of third-degree sexual abuse involving a particular perpetrator and victim, or that the trial court should have instructed the jury that it must agree unanimously on the same incident of third-degree sexual abuse in order to find defendant guilty of aggravated murder as charged in those counts.

Defendant makes identical arguments with respect to those aggravated murder charges that are based on the commission of the crime of murder (counts 26, 28, 34, and 36). He argues there that the trial court erred when it failed to ensure jury unanimity on the factual circumstances underlying those crimes, either by identifying for the jury a particular murder or by instructing the jury that it must agree unanimously on the same murder before convicting him on those charges.

With respect to each of the charges of aggravated murder committed to conceal the crime of third-degree sexual abuse, the trial court instructed the jury generally that, to find defendant guilty, it would have to find that he intentionally caused each victim's death "in an effort to conceal the crime of sexual abuse in the third degree."

The court also instructed the jury with respect to the elements of the crime of third-degree sexual abuse. Similarly, with respect to those counts charging defendant with aggravated murder committed to conceal the identity of the perpetrator of the crime of third-degree sexual abuse, the court merely told the jurors that, to find defendant guilty, they would have to find that defendant intentionally caused each victim's death "in an effort to conceal the identity of the perpetrator of the crime of sexual abuse in the third degree."

The court did not identify the victim or surrounding circumstances of the underlying crimes of third-degree sexual abuse with respect to any of the aggravated murder charges based on that underlying crime. Nor did the trial court instruct the jury that, to convict defendant of an aggravated murder charge based on third-degree sexual abuse, all jurors had to agree that the murder had been committed to conceal a single incident of sexual abuse, upon which they all agreed, committed against a single victim.

Likewise, with regard to the counts alleging concealment of the identity of the perpetrator of the crime of third-degree sexual abuse, the trial court did not tell the jurors that, to return a guilty verdict, they all had to agree on the identity of at least one perpetrator.

On the counts of aggravated murder based on the underlying crime of murder, the court gave similar instructions; it simply told jurors that, to find defendant guilty, they had to agree that he intentionally caused the victim's death "to conceal the commission of the crime of murder" or "to conceal the identity of the perpetrator of the crime of murder." As with the aggravated murder counts based on third-degree sexual abuse, the court did not instruct the jury that, to convict, all jurors had to agree on the same underlying crime of murder or the same perpetrator.

In a combined argument, defendant asserts that evidence at trial could have supported more than one instance of third-degree sexual abuse, by more than one perpetrator, and more than one murder by more than one perpetrator. He argues that, under those circumstances, there was a strong possibility of jury confusion and, therefore, it was incumbent upon the trial court to identify the facts and circumstances of the crimes of sexual abuse or murder with respect to each count of aggravated murder, and to instruct the jurors that, in addition to everything else that is required, they must agree unanimously on the underlying crime to convict defendant on a particular count of aggravated murder based on that crime.

Defendant concedes that he did not object at trial to the instructions on the aggravated murder counts in any of the foregoing respects. However, he contends that this court held in Lotches that specificity with respect to the facts and circumstances of the crimes underlying each aggravated murder charge is required to meet the constitutional jury unanimity requirements. Further, he argues that the error is one of law and is not reasonably in dispute. Accordingly, defendant urges this court to exercise its discretion to review the error as apparent on the face of the record.

In Lotches, this court addressed a similar problem. As discussed above, the defendant in Lotches was charged with three counts of aggravated murder for killing one individual. One count alleged that the defendant intentionally murdered the victim "in the course of and in the furtherance of and in the immediate flight from" the crime of first-degree robbery. A second count alleged that the murder was committed in connection with the crime of attempted kidnapping. A third count alleged that defendant committed the murder to conceal the identity of the perpetrator of attempted murder. Defendant was not charged with the first-degree robbery that the state later claimed was the basis of the aggravated murder charge, but he was indicted on and convicted of a charge of first-degree robbery involving a different victim.

Defendant was not charged with attempted kidnapping at all, but he was charged with two counts of attempted murder, involving two different victims. The trial court did not identify for the jury the victim or attendant circumstances of any of the underlying felonies, nor did it instruct the jurors that all had to agree on the same set of underlying facts in order to convict the defendant on each count. In that case, as in the present, the defendant did not object to the instructions as given.

The court in Lotches began by examining whether the instructions given to the jury were adequate. The court observed that, in State v. Boots, 308 Or 371, 780 P2d 725 (1989), this court overturned the aggravated murder conviction of a defendant who had been charged with that crime based on two separate aggravating factors, because the trial court had instructed the jury that it was not required to agree unanimously on any particular theory, so long as some combination of the 12 jurors agreed that one or the other or both of the alleged aggravating factors had been proved. In Lotches, the court stated that, under Boots, the unanimous jury rule "requires that the jury agree as to just what defendant did to bring himself within the purview of the particular subsection of the aggravated murder statute under which he was charged." Lotches, 331 Or at 468-69 (internal quotation marks omitted).

Applying that rationale to the aggravated murder charges at issue in Lotches, the court held that, "because the aggravated murder instructions that were given did not either limit the jury's consideration to a specified underlying felony or require jury unanimity concerning a choice among alternative felonies, each instruction carried the danger that this court had condemned in Boots." Lotches, 331 Or at 469. Accordingly, the court concluded that, "[a]s a legal matter, the jury instructions were erroneous." Id.

In the present case, defendant was not charged with third-degree sexual abuse, but there was evidence to support a finding that either defendant or Susbauer (or both) committed that crime under several different theories. Similarly, there were three murder victims and two possible perpetrators of that crime.

We agree with defendant that, because the instructions that the jury was given with respect to each of the aggravated murder counts based on the crimes of third-degree sexual abuse and murder did not either limit the jury's consideration to a specific instance of third-degree sexual abuse or murder, committed by a particular perpetrator against a particular victim, or require jury unanimity concerning a choice among alternative scenarios, each instruction carried an impermissible danger of jury confusion as to the crime underlying each count. As in Lotches, the jury instructions with respect to counts 20, 21, 26, 27, 28, 29, 34, 35, 36, and 37, were erroneous.

We turn to consider the state's argument that any errors in the jury instructions were harmless. In that regard, we examine whether it is possible at this stage of the proceeding to determine whether all 12 of the jurors agreed on the victim, perpetrator, and attendant circumstances of the crimes underlying the aggravated murder charges. Id. at 470-71.

The state contends that the jury's unanimous verdicts on other counts demonstrate the required degree of unanimity so as to render each of the jury instruction errors harmless. We agree with the state that the trial court's errors with respect to counts 26, 28, 34, and 36, in failing to identify the victim and perpetrator of the underlying crimes of murder, were harmless. That is so because the jury unanimously convicted defendant of aggravated murder on counts 19, 25, and 33. As to those counts, the trial court instructed the jury as follows:

"In this case, to establish the crime of aggravated murder, in Count 19, the State must prove beyond a reasonable doubt that * * * [defendant] intentionally caused the death of Kristal Rene Bendele, another human being, and Brandon Matthew Williams and Patrick Finley, other human beings, in the same criminal episode.

"* * * * *

"In this case, to establish the crime of aggravated murder, in Count 25, the State must prove beyond a reasonable doubt the following elements: * * * that [defendant] intentionally caused the death of Brandon Matthew Williams, another human being, and Kristal Rene Bendele and Patrick Finley, other human beings, in the same criminal episode.

"* * * * *

"In order to establish the crime of aggravated murder, in Count 33, the State must prove beyond a reasonable doubt that * * * [defendant] intentionally caused the death of Patrick Finley, another human being, and Kristal Rene Bendele and Brandon Matthew Williams, other human beings, in the same criminal episode."

Pursuant to those instructions, the jury was required to find that defendant intentionally caused the death of each of the victims and both of the other victims in the same criminal episode. Thus, the fact that the jury unanimously convicted defendant on those counts proves that all 12 jurors believed that defendant was responsible for all three murders. The fact that Susbauer may have shared responsibility for those murders does not alter that analysis.

The verdicts on counts 19, 25, and 33 establish that the jury could not have been confused with respect to either the victims or the perpetrator of the crime of murder in those counts that alleged that defendant committed murder to conceal the crime of murder and to conceal the identity of the perpetrator of the crime of murder (counts 26, 28, 34, and 36).

The same cannot be said for those aggravated murder counts alleging the predicate crime of third-degree sexual abuse (counts 20, 21, 27, 29, 35, and 37), however. As noted, defendant was not charged with that predicate crime, but the state presented evidence at trial that would have supported various theories making defendant liable for committing it. Under some of those theories, defendant was the perpetrator; under others, Susbauer was. Bendele, Williams, and Susbauer himself were possible victims. In addition, defendant was charged with, and convicted of, first-degree sodomy for his conduct with respect to Bendele.

With respect to each count of aggravated murder predicated on the crime of third-degree sexual abuse, the jury was required to agree unanimously on all material facts constituting that underlying crime. However, in the absence of explicit jury instructions, it is impossible to determine whether, in convicting defendant of a particular count of aggravated murder based on concealing the commission or the identity of the perpetrator of the crime of third-degree sexual abuse, each individual juror in fact had in mind the same victim, perpetrator, and surrounding circumstances making up that crime. It follows that the errors in the jury instructions with respect to counts 20, 21, 27, 29, 35, and 37 were not harmless.

In Lotches, this court held that a trial court's failure to instruct the jury fully respecting the counts of aggravated murder predicated on an underlying felony was error apparent on the face of the record. Id. at 472. The court stated that each of the prerequisites for such a determination was present: the issue of what must be included in jury instructions is a question of law; what was or was not included in the instructions actually given is easily ascertainable through examination of the record; and, in light of this court's previous holding in Boots, the error was obvious.

Therefore, the court in Lotches reversed the defendant's convictions of aggravated murder for the two counts for which the court concluded that the error was not harmless. Id. The same reasoning is applicable here. Accordingly, notwithstanding the defendant's failure to object to the instructions at trial, we conclude that defendant's convictions of aggravated murder on counts 20, 21, 27, 29, 35, and 37 must be reversed, and the case remanded to the trial court for further proceedings respecting those counts.

Defendant makes many assignments respecting the evidence offered, the jury instructions given, and the law applied during the penalty phase. We have considered each and determine that all but one either is not preserved, is not well taken, or has been answered by previous decisions of this court or by the United States Supreme Court. Discussion of those assignments of error would not benefit defendant, the public, the bench, or the bar. We turn to the one assignment of error that appears to be well taken.