Clergy Confession

Man charged with molesting boy wants the evidence thrown out

April 7, 2013

After something unthinkable happened in a restroom during a service at Immanuel Baptist Church in January, one of the church-goers had something urgent to say to his pastor.

Steven William Richard, 28, had just locked a six-year-old boy (who was attending church with his grandfather) in a toilet stall and molested him, and now he wanted to make things right, at least as far as he could see it.

"I specifically said, "˜I need to speak with you in private,’" Richard said in an affidavit in his court file, of his request to his pastor, Matthew Herron. "I stated: "˜I screwed up.’ Pastor Herron asked me, "˜What did you do?’ I responded, "˜I was in the bathroom and gave a small boy a .....!" Herron would later explain in court that he next asked Richard to wait in a balcony near his office where he could keep an eye on him while he met with other churchgoers after that 10 a.m. service.

"A few minutes later the pastor came upstairs and said that he had spoken with a couple other people and they had to call the cops," Richard said in his affidavit.

Richard, in his affidavit, describes why he thinks it’s unfair that police were called: "I did not at any time tell Pastor Herron that it was okay to call the police. I told him that I wanted to talk to the boy’s family and let them know what had happened and ask for forgiveness. I thought Pastor Herron would counsel all of us."

MOTION TO SUPPRESS

Now Richard and his attorney, David Clark, seek to have the admissions Richard made to Pastor Herron that day and all of the evidence that stemmed from the ensuing police investigation thrown out.

Clark argues that Richard had an expectation of privacy due to "clergy-penitent" privilege, and that to prosecute him based on the information that flowed from his conversation with Herron would violate Richard’s constitutional due process rights.

On March 1, Circuit Court Judge Philip Rodgers ruled against Clark’s motion to suppress evidence. Now the case is on hold and the trial date has been pushed back until at least June after Clark filed a motion for leave to appeal Rodgers’ decision to the Michigan Court of Appeals.

Richard is charged with first-degree criminal sexual conduct, which carries life in prison.

He is also charged as a two-time offender, which could mean he could receive a sentence of life without parole if he is convicted.

Richard was convicted in 2007 of committing indecent acts or liberties with a child at the United States Marine Corps’ Camp Lejeune in North Carolina. He had been released from federal prison within six months of the recent incident and he was on federal probation.

SOUGHT "˜SPIRITUAL COUNSELING’

Clark maintains in his arguments that what Richard sought when he went to Herron after that service was "spiritual counseling."

He argues that Richard should have been able to expect what he told the pastor to remain confidential.

Clark reasons that if what was discussed had remained between his client and his client’s pastor, none of the police investigation that stemmed from it would have occurred, so all of the evidence subsequently collected by Grand Traverse County Sheriff’s Office investigators would not have been collected.

That includes a evidence that Richard’s mother told detectives -- that her son called her while he waited for Herron in the balcony and he said: "I did it again."

It also includes a statement Richard made to his federal probation agent at the jail after he was arrested when he said something like: "I f---ed up again."

Clark argued he also believes DNA evidence collected from Richard and the boy during the investigation should be suppressed.

STATE LAW GOES BACK TO 1846

In her response to the motion, Noelle Moeggenberg, Grand Traverse County chief assistant prosecutor, argued that Clark got the nature of that meeting all wrong. Richard didn’t go see the pastor looking to confess or to pray. He was there looking for a way out of going back to prison.

"The defendant stated that he was worried that the grandfather would call the police and he wanted an opportunity for him to have a second chance without the police being involved," Moeggenberg wrote.

The "clergy-penitent" privilege is laid out in two statutes in Michigan. The first was passed in 1846. The second was passed in 1949. The second one groups the clergy privilege with attorney-client and doctor-patient privilege.

The privilege appears to stem from the tradition of confession in the Catholic faith. Moeggenberg argues that according to Michigan law, use of the privilege needs to be interpreted in the context of the religion in which it is claimed.

At a hearing to decide the motion on March 1, Moeggenberg called Herron as a witness to go into detail about his meeting with Richard.

Herron testified that Baptists don’t believe in "confession" to a pastor. Rather, he said, the only entity that can come between Baptist faithful and God is Jesus, so he said people of his faith believe in making their confessions directly to Jesus.

THE SAFETY OF CHILDREN

Herron testified that he believes the safety of children is paramount in his faith.

He told Clark during cross examination:

"One of the things is that we hold the safety of children really, really highly," he said.

Clark attempted to get Herron to discuss how clergy are exempt from child sex abuse reporting requirements, but Herron said he thought that was more of a gray area. "I don’t know that we’re exempt from it," Herron said.

Herron said he was also concerned about Richard’s well-being. Richard’s mother was a long-time member of the church and Richard was part of a maintenance crew that sometimes worked on church property. Richard had told Herron that he was a convicted sex offender weeks earlier.

"Your concern is for the child?" Clark asked Herron.

"For the child, yeah. I mean, yeah, if I could say it, I’m not unconcerned for Steven, my heart goes out to Steven. There’s been a lot of tears shed. But I obviously was concerned about the boy."

CONFIDENTIALITY WAIVED

At the hearing Rodgers said the fact that Richard wanted Herron to help him speak to the boy’s grandfather negated his claim to privilege.

"If the purpose of the communication with the pastor was to involve the grandfather, is that necessarily an implicit waiver of any type of reasonable expectation of confidentiality?" Rodgers asked at the hearing.

Later, in ruling against the request to suppress the evidence, he said: "This wasn’t a request for forgiveness, it wasn’t a request for guidance, there wasn’t even a request for confidentiality or privacy."

Richard’s trial is scheduled for June 11 through 13.