Public may never know what alleged Naperville killer told priest
BY DAN ROZEK Staff Reporter firstname.lastname@example.org November 3, 2012 12:00AM
St. Elizabeth Seton Catholic Church, photographed on Wednesday, October 31, 2012 in Chicago. | Richard A. Chapman~Sun-Times
Updated: December 5, 2012 6:41AM
Whatever Naperville baby-sitter Elzbieta Plackowska told a Catholic priest hours before she allegedly murdered her son and another child likely will remain private forever.
Unless, legal experts say, Plackowska wants her words made public to help her fight the charges she fatally stabbed the youngsters.
But even in that event, it’s possible the priest she spoke to at St. Elizabeth Seton Catholc Church in Naperville could refuse to disclose what she said, arguing religious law requires him to protect her confidential statements.
What almost certainly won’t happen, experts said, is that Plackowska’s statements could be used by DuPage County prosecutors trying to show she talked ahead of time about the Oct. 30 killings of her son, 7-year-old Justin, and 5-year-old Olivia Dworakowski.
Talks between a parishioner and a priest are legally protected — or privileged — as strongly as conversations between a husband and wife or a lawyer and client.
“Those conversations are all private. It’s about as privileged as you can get,” said Brian Telander, a former prosecutor and judge now in private practice.
The situation remains murky partly because criminal law and Catholic religious, or canon, law take different stands on what speech is protected — and how absolute those guarantees are, legal and religious experts said.
“There’s varying degrees of confidentiality,” said the Rev. James Halstead, chairman of religious studies at DePaul University.
Complicating the issue further is that’s it not clear in what setting the 40-year-old Plackowska spoke with the unidentified priest, law enforcement sources said.
Plackowska went to confession at the church, talking with the priest inside the private confessional booth.
A spokesman for the Joliet Diocese said it remained uncertain if Plackowska actually took confession while at the church.
“I can’t say if she did or not,” said spokesman Doug Delaney, adding Plackowska may have only spoken in passing to the priest while at the church with the children.
In church law, the setting makes a huge difference. A casual conversation with a priest on the steps of a church likely wouldn’t be considered “a privileged conversation” under canon law, Halstead said.
But if Plackowska spoke with a priest in a sacramental situation such as a confessional booth, there’s a different expectation of privacy that would prevent a priest from disclosing what she said to him.
“A confessional situation is an absolute,” said Halstead.
That stance potentially could hurt Plackowska, who is expected to raise an insanity defense against the murder charges she faces, though her attorney, assistant public defender Michael Mara, hasn’t commented publicly.
In criminal law, defendants can voluntarily surrender their privilege to allow otherwise confidential statements to be used as evidence on their behalf.
Plackowska allegedly told police at one point that she killed the youngsters because they had “evil inside them” and she wanted “to get the evil and the devil out of them,” State’s Attorney Robert Berlin said at her first court appearance. She later changed her account and allegedly told investigators she carried out the killings because she was angry at her husband, Berlin said.
But any bizarre or strange statements she made to a priest on the day of the killings could be used to bolster a possible insanity defense — if the priest would agree to testify about them, legal experts said.
“I’d certainly want to know if her statements to a priest were irrational to help a psychiatrist determine her mental state before the killings,” said Telander, who is not involved in the case.
That situation could raise an unusual legal roadblock. If Plackowska tried to call the priest as a witness and he refused on religious grounds to testify, a judge potentially would be forced to order the clergyman to take the witness stand or risk being held in contempt, legal experts said.
“I believe he would be directed to disclose what he was told,” Telander said.
Another obstacle could surface if any evidence emerges that Plackowska talked about harming the children during her conversation with the priest — though law enforcement sources said that isn’t likely to happen.
State law was changed in 2002 to designate clergy as so-called “mandatory reporters” required to inform authorities if they suspect sexual or physical abuse against children has occurred or likely will occur.
“Those of us who have a privilege have a mandatory duty to report if a client tells us he’s going to do harm to someone,” said Richard Kling, a professor at Chicago-Kent College of Law.
Canon law isn’t as absolute, Halstead said, especially in a sacramental setting such as a confessional booth.
“There have to be places where your privacy is protected,” Halstead said.
Berlin declined to comment on the case.
Contributing: Becky Schlikerman