Thursday, March 08, 2012

TX Court of Criminal Appeals okays 'trial by polygraph'

The Texas Court of Criminal Appeals continues to struggle with how to handle junk science, issuing (at least) its second 5-4 opinion in the last year (Ex Parte Robbins is the other I have in mind) allowing courts to rely on known junk science, this time reversing the lower court to proactively affirm the use of polygraphs as a basis for revoking sex offenders' probation. Chuck Lindell at the Austin Statesman gives the only MSM account I've see of the case of William Leonard ("Appeals court allows polygraph evidence, in limited way," Mar. 8), whose probation was revoked because he failed 5 polygraphs during mandatory treatment. Other than the polygraph, "appellant was halfway through his treatment plan and had faithfully attended the required meetings, participated in group therapy, and fulfilled all other terms and conditions of the treatment program," according to Judge Cathy Cochran's dissent. Moreover, "his therapist testified that the polygraph results were the only reason Leonard was discharged from treatment." Lindell explains the import of the decision:
In a 5-4 decision Wednesday, the Court of Criminal Appeals upheld Leonard's probation and prison term, saying the polygraph results were admissible in court because the information formed the basis of the therapist's expert opinion.

"Even generally inadmissible facts or data may be used by an expert in forming an opinion, as long as the facts or data are of a type reasonably relied upon by other experts in the field," said Judge Lawrence Meyers, writing for the majority.

"Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy," Meyers added.

The majority reaffirmed that polygraph results are always inadmissible before a jury.

But there is less danger of undue influence if the information is revealed during revocation hearings because there is no jury and because the judge "is not determining guilt of the original offense," Meyers wrote.

But Judge Cathy Cochran, writing in dissent, said the majority opinion employs logic that leads the legal system "down a very steep and slippery slope."

Leonard was sent to prison based solely on the failed polygraphs, Cochran wrote, despite numerous scientific studies and reports that have cast doubt on the accuracy of the tests.

"No court should admit or consider scientifically unreliable evidence," Cochran wrote, adding that Leonard experienced "not only ‘revocation by polygraph' but also ‘revocation by an expert's reliance on unreliable science.' "
The 11th Court of Appeals had reversed the trial judge's back-door theory for admitting inadmissible evidence, calling this "trial by polygraph," and that's exactly right. The Statesman headline says polygraph evidence will be allowed in a "limited" way, but Cochran's more accurate when she decries the "steep and slippery slope" down which the opinion launches the court's jurisprudence: The harm from allowing unreliable evidence as the sole basis for incarceration decisions isn't mitigated because the probation officer and/or the court deferred their evaluation to a therapist. Hokum is hokum, no matter who relies on it.

If it were one piece of evidence among a panoply resulting from an investigation, that's one thing (you'll sometimes see polygraphs used in actual innocence cases that way, particularly out of Dallas). However, as Cochran wrote, "Although an expert may base his opinion, at least in part, on otherwise inadmissible evidence, it must nonetheless be reliable inadmissible evidence." Or at least that was the case until yesterday. Now, probationers can be revoked based on testimony from experts who base their conclusions exclusively on unreliable evidence.

Bottom line, because we're talking about sex offenders, the courts are willing to bend over backward to maximize punitive sanctions, even to the point of allowing pseudoscience to dictate sentencing decisions, as in this case. But now that the precedent has been set, you can be sure prosecutors will get more creative about probation conditions that defer polygraph use to some third party so it will be admissible when it otherwise wouldn't be. Consider the implications, for example, of using polygraphs vis a vis treatment programs associated with DWI convictions: If that happened, this decision could balloon quite quickly into a big deal affecting a lot of cases.

See Judge Meyers opinion (joined by Keller, Hervey, Keasler and Alcala) and Judge Cochran's dissent (joined by Price, Womack and Johnson). I'm particularly disappointed to see Judge Alcala was the critical swing vote for Keller and Co. on the opinion. There are a ton of junk science issues looming before criminal courts in the wake of the National Academy of Sciences reevaluation of forensics, so this blasé attitude toward relying on junk science bodes particularly ill at this historical juncture.

Bad, bad opinion. So bad maybe the Lege should act next year to say that polygraph tests can't be the sole basis for probation revocation, whether they're administered by law enforcement or a therapist at the direction of the court.

25 comments:

Anonymous said...

Grits has a detailed analysis of the court angle on the issue. If you go to get a serious security clearance, the GOVERNMENT will hook you up to a polygraph machine. Junk science? Funny how the govenment uses it to their advantage, but let's see some cops and DA's hooked up to the polygraph. I have a few questions for them... The issue is extremely two faced by the govenment...

Anonymous said...

So you think it's okay to use a polygraph if it's being used to establish "actual innocence," but it's not if you're trying to see if sex offenders might be re-offending? Typical.

Gritsforbreakfast said...

No, 10:15, you need to re-read, slowly, so you'll comprehend: I said it's one thing if the polygraph is one element among a "panoply" of evidence the expert relies upon but unacceptable as a stand-alone.

rodsmith said...

personaly i think it's a crock. First it's a complete violation of your right against self incrimination. Then there is the simple FACT IT DOES NOT WORK!

Hell even the FBI has admitted it does NOTHING but scare people. Then there is the 1,000's of reports it is a FRAUD!

think i'm kidding. Just visit

http://antipolygraph.org/index.shtml

i know it's junk. I've got a brother you could hook up a noon and ask him if the sun was out and he could lie and say NO and PASS!


of course you could say the guy brought it on himself. I would REFUSE to take one. Of course just mentioning you know about the above site means they would NEVER give you one!

Anonymous said...

Shameful decision by the Court. Just plain Shameful!

Anonymous said...

""Polygraph exams are reasonably relied upon by experts in sex offender psychotherapy," Meyers added."

Ok, and again tell me who these experts are? I have yet to meet one.

Anonymous said...

I agree this is a slippery slope and all downhill. I also agree that when it comes to sex offender charges, the consistutional rights go out the window. I don't think it would matter to me as much if the only ones labeled as a sex offender were the true sex offenders dangereous to society. But since the implementation of the wacked out AWA, everyone in the world is a sex offender. So, in essence, everyone responding to this article could of, at some time in their life, be labeled as a sex offender in today's terms. food for thought for all of you.

Anonymous said...

WE DONT ALLOW POLYGRAPHS TO PROVE INNOCENCE. HOW THE HELL CAN IT BE RELIABLE ENOUGH FOR ANYTHING ELSE? THE TREATMENT PROVIDERS AND THE P.O.s TELL THE POLYGRAPHERS WHAT CONCLUSION THEY WANT IT TO BE ANYWAY. THEY ARE ALL IN BED TOGETHER. Cathy

The Fishing Physicist said...

The Texas CCA is a total joke. The Texas Supreme Court is little better. The fact that junk science is so prevalent in the Texas Judicial System just screams the fact that lawyers are NOT qualified to be judges in case that involve scientific, or technological evidence. What’s needed is a Judicial Review Board that is composed of folks that have backgrounds in physics, chemistry, engineering, technology, medicine, and so forth. Such a panel would be authorized to overrule both the Texas CCA, and the Texas Supreme Court in technical matters.

To be a member of such a board one would have to have a strong background in the above subjects to even qualify for consideration. Another solution is modify the Texas CCA, and the Texas Supreme Court such that each had to have at least five members who are NOT lawyers, but have to be licensed physician, nurse, or other health care professional, a P.E., or hold an advanced degree in the natural sciences. Good sense will never prevail until the legal profession’s hold on the high courts is reigned in by checks and balances in the composition of these high courts.

Anonymous said...

Hey, I've got a great solution to this problem! Just don't commit a sex crime and you won't have to worry about about having to submit to a polygraph. Problem solved!

Anonymous said...

God help us. This is an insane decision - next we'll be back to trial by ordeal. IT'S NOT RELIABLE. RELIABILITY IS SUPPOSED TO BE THE CORNERSTONE OF THE DAUBERT/KELLY CASES THAT THEORETICALL GOVERN THIS AREA. I can only assume that defense counsel may have let down this defendant badly, because anyone halfway competent should have kept this garbage out. Shame on whoever is responaible for this.

televiper said...

bring back the Gestapo, they always get the results you want!

RSO wife said...

My husband served 4 years of a 5 year probated sentence along with the mandated court ordered therapy. He always saw his probation officer when he was supposed to and never missed a therapy session and supposedly was doing a good job. He didn't do anything he wasn't supposed to do to stay within the guidelines of his probation requirements.

During that time he passed 3 polygraphs On the 4th one, the examiner didn't like two of his answers. They didn't say he lied, they said they didn't like his answers. They revoked his probation, held him in jail without bond for 5 months during which time they kept pushing his hearing farther and farther ahead. First the judge thought he was somebody else and "had to reread his case file", Then they changed DAs twice, they each one of them needed at least two weeks to "reread the case files".

Finally he got his day in court only to be given a 3 year sentence in TDC.

To Anon 10:15, you obviously have never taken a polygraph or had one used on a family member, so before you go adding your two cents, you should get the facts on just exactly happens during a polygraph examination, and how the results are calculated.

And to Anon 7:45, not all people who are labeled sex offenders and serve time really are sex offenders and I certainly hope you are never in a position to have to defend yourself from that. But then maybe your sanctimonious attitude will help you out there.

In our house we know all too well what trial by polygraph means.

DEWEY said...

I'm DOOMED !!!! It's a proven fact that I cannot "pass" a polygraph test.

Anonymous said...

There are no devices that can detect a lie! None! The polygraph may measure some bodily function but not a person's conscience. Anyone who tells you a polygraph can catch a lie is lying!

Anonymous said...

Polygraph tests are a joke. I failed the first one I took because the tester insisted I was lying even though I was telling the truth. A few years later I passed a second polygraph even after telling the tester I was lying.

Both tests were job related and had nothing to do with determining guilt or innocence of a crime. Regardless of what they are used for, however, you will never convince me that they work any better than a magic 8-ball.

Anonymous said...

Once again I am compelled to remind everyone that more police officers are convicted of child sex crimes than all other professions combined. It's law enforcement's "dirty little secret", and one we are committed to exposing. Police officers use their positions of trust to violate our children. Their victims are threatened with physical harm and told no one will believe their word over that of a police officer. Please take a few minutes and visit our Facebook pages to learn why cops are so attracted to little children and why no child should ever be left alone with any child. http://www.facebook.com/pages/Tribute-to-survivors-of-child-sexual-assault-by-law-enforcement-officers/180584842010594?sk=wall

Anonymous said...

I once heard the director if a juvenike sex offender treatment program call them "therapeutic polygraphs." He was not bothered at all by the fact that 1) there is no such thing and 2) polygraphs are not reliable indicators of truth or lies. Even worse was the fact that they were used until the operator said the juvenile had "passed" by admitting to all of the other sexual offenses he supposedly had commited but for which he had not been charged. And yes he could then be prosecuted for these new offenses bases upon his "confession." But if the polygraph showed he "failed" (meaning he wasn't admitting to all his other unknown offenses) then they would not release him from the program no matter how well he was doing with the therapy.

Thomas R. Griffith said...

Hey Grits, it doesn't look like anyone has mentioned this so far, so please allow me.

The owner/operators of every single Polygraph business in Texas is a former and/or active; police officers, detectives, private detectives, prosecutor, judges. To hide that fact, sometimes the business is under the name of a family member or pet.

*I've been pulled from a cell, handed back my wallet & forced to pay $75 bucks cash (no receipt) to prove "my innocence". I was told that I was not telling the truth about my name and that I knew something about the crime. WTF? Exactly. I asked for my money back and was taken back to my cell, released the next day. *10 yrs. later a check revealed that the two jokers above were related. Say What?

What are we learning today folks, besides that rodsmith it correct, Dewey is doomed & a couple of Anons. arn't cops? It's a Phucking scamola, job security for punks with a machine & an awesome tool used to revoke if you let it. Don't hire just anyone to represent you in a criminal matter, vett to ensure they are Real Criminal Defense Attorneys / Lawyers and make sure they are present for any & all tests. Thanks.

Anonymous said...

"Once again I am compelled to remind everyone that more police officers are convicted of child sex crimes than all other professions combined"

Thats the biggest bunch of bullshit I've ever heard. Where did you come up with those stats? I'm a police officer that invesigates sex crimes and what I've found is usually these perps put themselves in a position to come in contact with lots of children. Police officers during the course of their duties rarely have contact with children. Sex offenders come from all profession and yes some cops are sex offenders and they should be given the maximum sentence allowed. But to say cops make up the majority of pedophile cases is a blatant lie. In my 15 years of a investigating sex crimes i've known of two cases involving police officers. We could solve the polygraph problem with probationers if sex offenders would get more time than say auto thieves. First offense for harming a child should be 10 to 15 years and a second offense should be life.

Anonymous said...

"Once again I am compelled to remind everyone that more police officers are convicted of child sex crimes than all other professions combined."

Actually Teachers is number one followed by bus drivers, camp counsellors, photographers, and sports coaches. Police officers are not even close. Get your facts straight before posting such outrageous lies.

Anonymous said...

Actually, you couldn't be more wrong. But it's not your fault for believing that as anytime a teacher is caught committing a child sex crime it is front-page news for days. Whereas when a cop is caught it is relegated to the back page in small format to insure the least amount of publicity possible in order to keep citizens from losing faith in their police. There are less than 1-million police officers in this country, but more than 8-million school teachers and coaches. Yet, even with that ratio there are still more police officers convicted of child sex crimes. Sex crimes are not about sex. Psychiatrist have known for decades that sex crimes are about power and the need to control others, and no group of people care more about control and power as do those who are in law enforcement. If we tracked ALL sex crimes committed by police officers instead of just child sex offenses, it would be a full-time job for several employees. And if we tracked all sex crimes committed by current AND former law enforcement officers, we would need an army to keep up with them all. We rarely document cases here that involve retired cops, 99.9% are current officers. Add to that the number of ex-cops who quit or were terminated because of theft, brutality, etc. then the numbers would be atrocious. Ask any pedophile what his first choice for a career was, and they will almost always admit to wanting to be a cop. Go figure....

Tom said...

Over the past 25 years I have taken a polygraph for every law enforcement job that I have ever applied for. Every time I have made repeated lies while taking the polygraph. And you know what? Each and everytime I have beat the machine and PASSED the polygraph!! Dozens of polygraphs, all given by different examiners, with federal & state agencies - all beat.

Anonymous said...

I think what's being missed in this blog and a lot of responses to it is the fact that the CCA has only authorized polygraphs to be used in PROBATION REVOCATION HEARINGS, not original criminal trials. The difference is in the burden of proof. At an original criminal trial, a defendant has to be proven guilty beyond a reasonable doubt (99% likelihood of guilt). At a revocation hearing, preponderance of the evidence (51% likelihood of guilt) is sufficient. Remember, someone who is on probation has already been found guilty of an offense punishable by imprisonment. No one is entitled to probation; it is an act of mercy on the part of the court that can be revoked any time a judge finds it is more than likely that conditions of probation have been violated.

As it relates to polygraphs, no one would argue that polygraphs are right all the time. However, there is actually more research supporting their general accuracy than would be applicable to pseudoscience. Polygraphs may not be right often enough to count as proof beyond a reasonable doubt, but, especially when re-tests and multiple examiners are used, they easily satisfy the preponderance of the evidence standard. Use of polygraphs is standard in sex offender treatment and supervision programs nationwide, and this would not be the case if they had no more scientific merit than pseudoscience.

Anonymous said...

I haven't seen it mentioned on your site, but last week the CCA granted the appellant's motion for rehearing. It was a 5-4 decision, so granting rehearing could be a sign that one of the judges has changed his mind.

http://www.cca.courts.state.tx.us/opinions/case.asp?FilingID=273944