Polygraph Abuse Alleged in Oregon Murder Investigation

Nick Budnick reports for Willamette Week in an article titled, “True Lies? Polygraph Expert Questions Francke Investigation Tactics.” Excerpt:

In three decades of giving so-called “lie detector” tests, you’d think Ken Simmons would have seen everything; but after reviewing a string of reports in the controversial Michael Francke murder case, he’s stunned.

“I’ve done polygraphs for 29 years, and I haven’t seen anything like this,” says Simmons, a longtime Oregon State Police polygrapher who is considered by law-enforcement officials and defense lawyers to be among the best in his field. “This is unbelievable…. This is really bizarre.”

In January 1989, someone killed Francke, the head of Oregon’s prison system. Prosecutors pushed a theory that it was a random car burglary and convicted a small-time drug dealer, Frank Gable.

Gable, however, maintains his innocence and, through an intermediary, has recently released records of the murder investigation to reporters (“The Murder That Would Not Die,” WW, Nov. 23, 2004). The documents raise several questions about the investigation, particularly the probe’s heavy reliance on polygraphs.

“Some of the techniques that are used here are simply unacceptable,” says Simmons, now in private practice, who reviewed a dozen polygraph reports in the case records at WW’s request. “These just aren’t things we would do [today]. I’m surprised they would be done then.”

Polygraphs are not really “lie detectors,” which is one reason most courts won’t allow them as evidence. The machines measure changes in pulse, perspiration and blood pressure but can be misled, particularly by addicts whose brains have been fried by methamphetamine or crack cocaine. There are also plenty of examples of people who flunked even when telling the truth.

“I do polygraphs for a living, and I have a lot of faith in them,” says Simmons. “But when they’re done badly, I have no faith in them.” He places most of the Francke-probe polygraphs he reviewed in the latter category, saying that although he has no reason to think Gable is innocent, “I am very confident that I would not want to base any prosecution on these polygraph results.”

In the Francke case, state polygraphers tested about 100 people and eliminated dozens of potential suspects based on their results. Later, in September 1989, when the case was at a standstill, detectives used Gable’s failure of two polygraphs to make him a prime suspect.

According to reports by Gable’s investigators, at least five people polygraphed by police as potential witnesses said later that police used the devices to shape their statements.

John Kevin Walker, a top prosecution witness, told a defense investigator after the trial that cops cited his initial polygraph to claim he was lying and implied he would be charged as an accomplice if he didn’t tell him what they wanted to hear. “I told the truth. They came back, said, ‘No, you’re not tellin’ the truth,” Walker told the investigator.

A friend of another key witness, Mark Gesner, told investigators Gesner described the exact same experience.

Yet another key witness, Jodie Swearingen, also told a defense investigator that police subjected her to repeated polygraphs until she told them what they wanted to hear. Simmons and other polygraphers told WW that a witness would normally be given three tests at most–after that, the machine becomes easier to beat. But after reviewing the reports on Swearingen, Simmons said she was tested 22 times in less than five months. This was particularly surprising to Simmons since he administered one of Swearingen’s exams–causing him to conclude that the teenage meth addict was a poor subject for any polygraph test.

The alleged use of polygraph “test” results to coerce witnesses into providing perjured testimony is deadly serious. When police wrongly believe that the lie detector is a highly accurate scientific means of detecting deception, when in fact polygraphy has no scientific basis at all, they can easily end up committing the kinds of abuses alleged here, even without necessarily acting in bad faith. For discussion of the issues raised by this article, see the AntiPolygraph.org message board discussion thread, Polygraph Abuse Alleged in Oregon Murder Case.

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