The Clergy Privilege in Mormon Cases: The Strange Case of Richard W. Miller

Jeff Breinholt is a member of the State Bar of California, and serves as an Adjunct Professor at George Washington University Law School. The views in this article are the authors own and do not reflect those of the U.S. Department of Justice.

Is there equality among religions when it comes to the recognition of the clergy-penitent privilege? This question is relevant because of the apparent patchwork of incidents in which the LDS Church’s commitment to the privilege – if not judicial recognition of the privilege in Mormon cases – seems to vary.

To understand my interest in this story, we need to go back to July 1986. I was a 22-year old intern, working in downtown in Los Angeles for federal judge William Gray. I had just finished my first year of law school at UCLA. Because Judge Gray was a senior judge, he took advantage of the benefits to avoid criminal cases.  I was somewhat bored. I had planned to go into criminal law, and was looking for little enrichment. One Friday after lunch, I saw a crowd gather outside of Judge David Kenyon’s courtroom. I decided to see what the fuss was about and curiously entered the courtroom with the throng.

It turned out to be the first of many federal criminal sentencings I witnessed over the course of my career, and it was a big one, involving the first FBI agent in history convicted of Soviet espionage.  The defendant was a short obese Mormon guy named Miller. 

He largely ignored the proceedings, taking aggressive notes at his table during the hearing as the US Attorney – Robert Bonner –  described him as a bumbling agent who lost his gun and badge and could not keep his zipper closed, particularly with a sexy Russian émigré-turned-informant. Bonner patiently explained how Miller had permanently injured US national security. When his turn came, Miller stopped taking notes and spoke briefly on his own behalf. I remember Judge Kenyon threw the book at him, giving him two life sentences.

Fast forward now 34 years. After I graduated in 1988, I did go into criminal law as a federal prosecutor, and am about to celebrate three full decades at the Department of Justice. I have attended and represented the government in hundreds of criminal sentencing hearings, mainly in Utah.  For the past 23 years, I have been focused on international terrorism in DC.  I am now considered an old hand.

The Pandemic hit. I am telecommunicating with time on my hands to think about my career. I start thinking of the fat Mormon FBI agent 34 years ago. Whatever happened to him?

Turns out Richard M. Miller died a free man in 2013.

That day in 1986?  It was just one of one of two sentencings Miller suffered in Los Angeles, based on his convictions for spying for the USSR. I now know this from reading the case law and related newspapers articles.

The story goes like this:

It was the Cold War in the mid-80s. Miller did not belong at the FBI. LA was where there was action with lots of Russian emigres. Though Miller – the father of eight kids – spoke fluent Spanish and had graduated from BYU, he could not cut it. He lost his badge. He would spend hours slumming it at 7-11, eating candy. He was assigned menial tasks. He was disciplined by his Church for marital infidelity He was on his way to being fired by the FBI.

Enter Svatlana Ogorodnikova, a Soviet émigré. She was previously handled by another LA agent named Hunt who tried to recruit her a few years earlier, and whom she slept with. Miller took her over as a numbered asset, and began planning to save his career through her, in what he described as his “blaze of glory.” Miller couldn’t resist having sex with her (as Hunt had) as they went forward with his plan.

In August 1984, Miller and Svetlana went on a joyride, heading from LA to San Francisco by car. They got drunk on the way up, a first for Miller. When they arrived, Svetlana went into the Soviet Consulate while Miller waited in the car. Svetlana reportedly dangled some classified information Miller had given to her.

The FBI established surveillance on the couple the following month, as they were planning another getaway to Austria to deliver classified documents to the KGB. By this time, Miller sensed he was being watched.

On September 27, 1984, Miller reported this relationship to one of his FBI supervisors, P. Bryce Christiansen, a fellow Mormon, although his motive for reporting was later disputed. Miller claimed he was seeking permission for the Austria trip.

On September 29, Miller was summoned to the office of Special Agent in Charge Richard T. Bretzing in the presence of Christiansen. Miller knew Bretzing was a bishop in the LDS Church. At this 15 to 20 minute meeting, Bretzing expressed his concern over the situation and asked whether Miller had considered its “spiritual ramifications.” In an obvious reference to Miller’s excommunicant status, Bretzing reminded him of the beliefs he had once held, which include the need to repent when one transgressed the law or “offended someone.” Bretzing reminded Miller that these beliefs stipulated the need for “confession” to the offended parties and for “restitution.” He urged Miller to give a candid account of all that had taken place so that he might “unburden” himself; and reminded Miller his wife and eight children needed someone in his position to respect. When Miller attempted to repeat his protestations of innocence, Bretzing interrupted and instructed him to remain silent, stating that he would prefer silence to the denials that had been getting from him for the last two days.

The following morning, September 30, 1984, Miller was again summoned to Bretzing’s office.  Christiansen was there. Bretzing asked Miller if he thought about  their talk of the previous evening. Miller assured him he had. Bretzing once again, as he had the night before, urged Miller to “own up to it.” He would undoubtedly earn back some of the respect and self-esteem which he’d lost, Bretzing told him.  Miller wept.

FBI agents arrested Miller in his pajamas and bathrobe at approximately midnight, October 2, 1984. He was immediately transported to a Magistrate in San Diego. During this ride, in the presence of Bretzing and two other agents, Miller was again interrogated, and again admitted providing documents to Svetlana notwithstanding his ever-present insistence that his actions were designed to benefit the FBI. He was charged with treason.

Svetlana pled guilty and testified against Miller. The first trial ended in a hung jury. Miller was retried and convicted. (This was the sentencing hearing I attended in July 1986, from which Miller received two life sentences.)

During the trial, the press reported that an expected courtroom showdown over the question of alleged Mormon favoritism fizzled when defense lawyers passed up a chance to ask Bretzing if he had ever given special treatment to Miller.  Bretzing  was  recalled  as  a  defense  witness  by  Miller’s  lawyers  after  Judge  Kenyon gave them permission to question him about his alleged coddling of Miller, as well as his motives for a stern religious lecture just before Miller’s arrest on espionage charges.  However, Kenyon blocked the defense lawyers from directly linking the Mormon religion to Bretzing’s treatment of Miller, and the lawyers decided not to pursue related allegations that Miller was first protected and then treated with undue harshness by Bretzing.   

In 1989, the Ninth Circuit reversed Miller’s conviction and remanded back to the District Court for a new trial, largely because of faulty polygraph evidence.  U.S. v. Miller, 874 F.2d 1255 (9th Cir. 1989), aff’d on reconsideration, U.S. v. Miller, 884 F.2d 1149 (9th Cir. 1989). Miller was tried on the charges a third time before a different judge. When he was convicted again in October 1990 at the hands of a young prosecutor named Adam Schiff, On February 4, 1991, Miller was sentenced to 20 years in federal prison.  He would get out early in a few years.

Miller’s second appeal focused on the fateful discussions he had with Bretzing prior to his arrest, arguing that the invocation of “spiritual ramifications” of Miller’s conduct rendered his confession coercive.

The Ninth Circuit did not buy the argument, writing briefly that there is no evidence to show that Miller’s will was “overborne” and describing how, at his suppression hearing, he admitted that his confession to espionage had nothing to do with religion. U.S. v. Miller, 984 F.2d 1028 (9th Cir. 1993).

But does that answer the question? Why was Bretzing’s discussions with Miller not protected by the clergy-penitent privilege? Does it even apply to the lay clergy-penitent relationships that exist in the Mormon faith? The LDS Church does tend to assert the privileged in sex abuses cases, yet in Miller – a case of national security – it did not. How can this be squared?

Perhaps it was that Bretzing was not Miller’s bishop at the time, so the confession had a more secular than religious quality, akin to an employment matter, even if Bretzing did in fact appeal to Miller’s religious beliefs. Bretzing is still alive, and although I have not spoken to him, I did speak to his son (himself a retired FBI agent) who describes his father as being an FBI agent first, who was entitled to use his full bag of tricks to get to the truth in Miller’s head. This is hard to argue with, and would explain the “spiritual ramifications” quote. Moreover, this was the height of the Cold War and what Miller did was serious. Should not the LDS Church cooperate with the FBI is such times?

Then again, is not child sexual abuse a serious thing, even if not on par with espionage?

The fact remains that the LDS Church seemingly cooperates with the government on national security matters, but that it claims religious liberty and asserts clergy privilege when it comes to explaining their inaction in sex abuse cases. This is an inconsistency that cannot stand.

Why did Richard Miller not scream bloody murder that his “religious” confession was used against him? It could have been that Miller knew it was not truly a religious conversation. Perhaps Miller’s lawyers overestimated how difficult it would be to shield the information that is confessed to just a newfangled religion as the LDS Church. After all, they chose not to pursue what Judge Kenyon had approved on the Mormonism issue. Finally, the law was not as penitent friendly (at least for Mormons) at the time.

Although they could not have known it at the time, in later years, at least, defendants in federal cases have sometimes successfully invoked the privilege to prevent disclosures of confessions to LDS bishops. In Scott v. Hamick, 133 F.R.D. 610 (D. Utah 1990), the victim of sex abuse sued her stepfather in federal court in Utah. (The case was brought by future Salt Lake City Mayor Rocky Anderson) The LDS Church, which was not a party to the case, filed a motion to quash the subpoena, which sought production of documents disclosing or relating to any excommunication of the father and any communications containing references respecting sexual or other physical abuse of the father’s adopted children. Magistrate Ronald Boyce ruled for the Church, reasoning that the communication made to the LDS Church bishop “in the course of the discipline” of the LDS Church was indeed privileged. Boyce noted that an LDS Church bishop is a clergyman within the meaning of the Utah statute.  In his opinion, he dropped citations to cases decided in Iowa, Indiana, Oregon and Arizona that were in accord in terms of the interpretation of their state statutes. At the time, no Utah case construed the scope of the statutory privilege afforded clergy and a penitent.

This evolution of the law on Mormon-related clergy privilege may have been the reason Richard Miller, for the first time in the 1990s, tried a religious defense in his second appeal. His lawyers might have been empowered by Magistrate Boyce’s opinion in Scott, which to this day is the best analysis of the clergy privilege as it applies to the lay clergy-penitent relationship that exists in the Mormon faith. Unfortunately Miller had already washed away his religious liberty argument by acknowledging in earlier proceedings that his confession had nothing to do with religion. The Ninth Circuit had no difficulty dismissing his argument.

Whatever the reason, the fact remains that the LDS Church is more aggressive at asserting the clergy privilege to protect itself as an institution in sex abuse cases than in other areas of criminal law.

Comments

  1. I wouldn’t ever buy a clergy privilege argument to cover a conversation that didn’t involve an individual going to see their bishop to confess. A conversation between an ex-member and someone who happens to be a bishop is not what those priveledge statutes were written for.

  2. Miller’s case was not a priest–penitent case. It was more like Brewer v. Williams, where the detective gave his famous “Christian burial” talk to the defendant on their drive across Iowa, despite the fact that Williams had said that he’d talk to the police after meeting with his attorney in Des Moines. Bretzing was no more Miller’s confessor than the detective in Brewer v. Williams.

  3. The last time I checked — which was several years ago now — numerous state courts had rejected the LDS Church’s assertions of priest-penitent privilege, because there is no LDS doctrine or practice of the “seal of the confessional” — i.e., LDS bishops, unlike Catholic clergy, routinely reveal the substance of member “confessions” to counselors, to stake presidents, in Bishop’s courts and related disciplinary proceedings, etc,, etc. The Church does not in fact behave as if the information is privileged, so (unless things have changed) the courts don’t, either.

  4. I haven’t seen any evidence for Jeff’s last statement, which, to be perfectly honest, seems like a reckless comment to make. The only “evidence” is this comparison is this case, which Jeff already noted is distinguishable because the conversation was not with the defendant’s bishop. The Church takes a very pragmatic approach to clergy privilege, which is to assert it every time that it applies, regardless of the subject of the court proceedings.

  5. When I was serving as a bishop, I had a situation where a victim disclosed being raped as a child on church grounds. The perpetrator had also raped several other children on church grounds. The church lawyer insisted that I not report to the police, stating that clergy confidentiality held. The victim did not want to go to the police. At that time there was an ongoing court case for a clergy of another faith being criminally prosecuted for not reporting disclosures from victims under essentially similar circumstances.

    I brought up the situation to a visiting GA who stated that in the jurisdiction where I lived the advice of the church lawyer had not been legally tested. My take away was that in Utah the church knows exactly how things will go based on experience but that there are many places away from Utah where under specific situations, the clergy exemption is not so clear legally I believe that the church has an interest in trying to carve out the largest possible exceptions for clergy confidentiality so it is playing a bigger game than “what is the right thing to do in this specific circumstance”.

    I resolved not to be the bishop that would undergo prosecution so that the church would be able to get experiential knowledge of whether or not its approach was legally sound. They would have to make do with the legal opinion that they had procured that was the basis for the attorney’s guidance to me.

    Any bishop who is reading this would be advised to think independently about what the helpline attorney is saying and find creative ways to get things reported. Get a second opinion as the church attorney is representing the church’s interests and not those of the bishop. I did and I found a way to get it reported that the church attorney did not suggest but was ultimately ok with. The church attorney probably looked at the situation and felt like the system worked fine. It got reported–all is well and no risk of embarrassing treatment in the press or a high profile trial of a bishop. But the church attorney would have never asked me to report or to find a practical solution.

    As a personal note, I lost my belief that the church cares about the well-being its members during the time I was a bishop. This experience is just one part of that 5 year long arc.

  6. An interesting ramification of Clergy privilege is when the clergy is a mandatory reporter. We had a member of our stake presidency who was a police captain. On occasion he would excuse himself from the room when there were discussions regarding member behavior of dubious legality. He was required by law to report certain things and remaining in the room would force a conflict between his duty to the law and his religious duty to the individual. He couldn’t report what he didn’t know.

    We once had a kid confess certain crimes to his seminary teacher, a police detective. Again, a mandatory reporter, but he couldn’t excuse himself from the room. He called the local police while I called the kid’s bishop. It was a memorable morning. (There was an attempted murder charge in the mix so it was a bit more than youthful high-jinks.

  7. your food allergy is real says:

    In some states, all clergy are by the law’s definition mandated reporters of suspected child abuse.

  8. Aussie Mormon says:

    Some (Non-LDS) clergy in Australia have previously stated that if clergy privilege was removed, they would rather go to jail than break the seal of confessional.

  9. I’ve re-read the OP a couple times, and I still cannot see how Bretz could possibly be viewed as “clergy” in the situation described. Simply being clergy cannot mean one is ALWAYS acting as clergy. From a member’s perspective, it’s pretty obvious Bretz would not be acting as clergy (as Bretz was not Miller’s bishop and Miller was called in to report to a superior, not to a church official), but even from an outsider’s perspective, I can’t see how Bretz could be considered clergy under those circumstances.

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