State prosecutors and the defense attorney for the Hampden man accused of killing his sister-in-law in July both argued Wednesday that the murder victim’s journal, which she kept at the direction of a Bangor priest, should be admitted as evidence in the homicide case against Philip Clark.
Clark’s attorney, David Bate of Bangor, said at a court hearing that the Rev. Anthony Cipolle has been “less than candid with investigators in this case.” He said the priest has invoked his Fifth Amendment right to silence and has refused to voluntarily give his DNA to be tested as part of the homicide investigation into the July death of Renee Henneberry Clark, 49.
The court hearing where Bate, who represents Philip Clark, 55, made those remarks was held to determine if the contents of Henneberry Clark’s diary are a privileged communication between a priest and a parishioner or evidence to be used at a trial next year.
If Justice William Anderson decides Henneberry Clark’s journal does not meet the religious exception standard, he would then examine it to determine what, if anything, could be read by prosecutors and the defense team.
Philip Clark is charged with intentional or knowing murder in the shooting death of Henneberry Clark at the Hampden apartment she shared with her estranged husband, Frank Clark, 56, the brother of Philip Clark. The accused killer and victim lived in adjacent apartments at 557 Kennebec Road.
The defendant, who is being held without bail at the Penobscot County Jail, has pleaded not guilty to the charge.
State prosecutors filed a motion to get access to the diary, which is in the possession of the attorney representing Cipolle, a Catholic priest in Bangor who has been described as Hennebery Clark’s spiritual adviser. She kept the diary at the priest’s direction and would then discuss what she had written with him, according to court documents.
Exactly how Cipolle obtained the diary is unclear, but it is now in the hands of his attorney, Charles Gilbert of Bangor.
The only other person besides the priest who has read it is the victim’s daughter, Assistant Attorney General Leane Zainea told Anderson.
Zainea declined to comment on the case after the hearing.
Defense attorney David Bate said outside the courthouse there might be reasons other than religious privilege why Cipolle wants to keep its contents out of court.
“The only person who has seen the journal besides Father Cipolle has said that there are parts of it that are relevant to the investigation and parts of it that could be embarrassing if released,” he said. “I think the interests of the state in producing this and seeing what’s in it are paramount. I guess it remains to be seen if it’s of interest to the defense.”
Bate described Cipolle as Henneberry Clark’s spiritual adviser but said, “he also knew her otherwise.”
“The judge has to decide if it was a communication that was in furtherance of some sort of spiritual exchange between a clergy person and one of his parishioners,” Bate said. “The question here is not one of a confession at a church but a journal that was kept by a person that purportedly has to do with a communication she might have in the future.”
Zainea argued that Cipolle waived his religious privilege when he allowed Henneberry Clark’s daughter to read the journal and allowed her to copy one page of it.
“This was not a communication with her priest, it was a diary she kept by her bedside,” she said. “The entries may tell us what her state of mind was as it relates to the defendant in this case, but we won’t know that unless the court reviews it.”