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On Sunday, Feb. 7, 1999, the morning after a fatal shooting at a Newark, N.J., fast-food restaurant, David Cary went to the Second Baptist Church of Belleville to speak to the pastor, Rev. Lucius Williams. It wasn’t just spiritual counseling that Cary sought. He wanted to confess to the crime. Williams took Cary to speak to John Perry, a deacon at the church and also a New Jersey state trooper. Perry, still wearing liturgical robes, read him part of the Miranda warning and frisked him for weapons. Cary admitted he was the shooter but claimed it was in self-defense. Together with Perry, Cary walked into a Newark police station. He was later indicted for the murder of Andre Dean, 18, and for the attempted murder of Salvatore Johnson, 18, who was shot in the stomach. The central piece of evidence was, of course, the confession, and Cary’s public defender promptly moved to have it suppressed under Evidence Rule 511, which makes communications made in confidence to a cleric privileged. Superior Court Judge Harold Fullilove granted the motion, and the prosecution took an interlocutory appeal. The pristine issue for the Appellate Division: Is the privilege applicable when the cleric is a cop, and the confession is made with a view toward surrendering? Much of the arguments Judges Michael King, Steven Lefelt and Jack Lintner heard last Wednesday in State v. Cary, A-003969-99, swirled around the definition of “cleric.” Rule 511, codified at N.J.S.A. 2A:84A-23, defines a cleric as “a priest, rabbi, minister or other person or practitioner authorized to perform similar functions of any religion.” Although Williams, the pastor at the church, testified at a hearing that Perry was indeed an authorized minister, the prosecutor who argued the appeal questioned his credentials. Hillary Brunell, Essex County, N.J.’s executive assistant prosecutor, cited the 3rd Circuit’s decision in In re Grand Jury Investigation, 918 F.2d 374, which noted that a “clergy-communicant” privilege does not extend to every member of a sect that gives everyone titles. Brunell, referring to a Baptist deacons’ training manual, said that as a deacon, Perry never performed marriages or baptisms or led worship services. She added that the evidentiary privilege, which New Jersey did not recognize until creating it by statute in 1947, was originally intended to protect confessions made to Roman Catholic priests. By applying it to Baptist deacons, she said, the court would do “a disservice to the public” by letting an accused murderer get away with the crime. On the other side, Yvonne Smith Segars, the first assistant deputy in the Public Defender’s Office in Newark, argued that Rule 511 gives church officials the power to determine who meets the definition of “clergy.” Judge King expressed confusion over how the law applies in a sect where roles are less clear than in the Catholic faith. “Only a priest is protected in the Catholic church. How much do we stretch the concept of priest?” King asked. “It’s not the concept of priest, judge, it’s the concept of cleric,” Segars replied. “It’s the same thing,” King said. Segars pointed out that it was Williams who brought Cary to see Perry, who was still robed from Sunday services when he heard the confession. “[Williams] called in a deacon who had spiritual training and knowledge of the law,” Segars said. Segars criticized Brunell’s resort to the Baptist deacons’ training manual, saying that even though Perry might not have performed all the same duties as the pastor, the court should accept Williams’ testimony that he was authorized to do so. The other issue, aside from Perry’s credentials, is whether Cary’s confession was one that he expected would remain confidential. Brunell argued that Cary made it clear that he wanted to own up to his actions and went to the church “seeking guidance on how to turn himself in.” She observed that Perry “Mirandized” Cary and ordered him to stand against a wall with his arms and legs spread to submit to a search for weapons, after which Cary made a “completely self-serving” claim that he shot the two men in self-defense. Segars said that Cary was not “Mirandized” because the deacon did not have his official state trooper card listing the entire warning, and therefore only said part of it. The appeals judges grilled Segars on whether Cary could truly have considered his meeting with the deacon to be a counseling session, leaving open the possibility that the appeals panel might remand to Judge Fullilove for specific fact-finding on that issue. Segars said she found no cases with similar circumstances to provide guidance. In a 1994 ruling, State v. Szemple, 135 N.J. 406, the state Supreme Court ruled that a prison “minister of visitation” could unilaterally waive the cleric-penitent privilege when an inmate confessed his guilt to additional crimes. But the Szemple case was effectively overturned by an October 1994 amendment to Rule 511, which now provides that the privilege belongs both to the cleric and to the penitent and that neither may waive it without the other’s consent. The only exception is when the confession concerns a future criminal act, in which case the cleric may (but is not required to) waive the privilege.

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