Maryland Judge to Allow Polygraph Results as Evidence for Sentencing Purposes

Jennifer McMenamin reports for the Baltimore Sun on Baltimore County associate judge Lawrence Robert Daniels‘s decision to take polygraph results into account when considering sentencing of a convicted felon:

Lie detector may aid inmate
Baltimore Co. judge gives convict chance to prove he didn’t try to kill two women

By Jennifer McMenamin

August 28, 2008

In an unusual ruling, a Baltimore County judge has given a convicted felon a chance to take a lie-detector test to prove that he did not try to kill his ex-girlfriend and her friend – a crime for which the man is serving 35 years in prison.

Although polygraph results generally are not permitted in criminal proceedings in state court, Circuit Judge Lawrence R. Daniels offered to let the man take the test while weighing whether to reduce the five-year prison sentence the judge imposed in a separate case for a probation violation after the defendant was convicted of attempted murder in the shootings of the two women.

“It’s the first I’ve ever heard of a polygraph being used like that,” said Abraham Dash, a professor at the University of Maryland Law School. “But sentencing is pretty much a subjective thing. … To me, it’s sort of the same kind of thing as if you admit your guilt and say you’re sorry, I’ll consider the apology in lowering your sentence.”

The case is a complicated one.

Trent L. Banks, 29, was convicted in 2007 of shooting at his then-girlfriend and her friend as they drove away from a home in the Parkville area. Upset at Banks’ infidelity, Ebony James confronted him at 3 a.m. March 13, 2006, and then slashed the tires of his new Nissan Maxima after he slammed the apartment door in her face, according to trial testimony.

As she drove from the Northbrook apartment complex, gunshots shattered her back windshield, flattened a tire and barely missed her friend, who happened to lean down to pick up a cell phone from the car floor.

“Oh my goodness, oh my goodness. I can’t believe this is happening. … I can’t believe he is doing this,” the woman quoted James as saying, according to a transcript of the trial testimony.

But within three weeks of the shootings, James recanted her statement to police. Instead, she said, she had not seen the shooter but told officers it was Banks because she was upset with him.

She told jurors as much at trial.

But with other evidence – including spent bullet casings and Banks’ taunting statements to detectives that they couldn’t charge him if they didn’t find a gun – the panel convicted Banks of two counts of attempted second-degree murder, a handgun offense and other charges.

Baltimore County Circuit Judge Robert E. Cahill Jr. sentenced Banks to 35 years in prison. After that sentencing, Banks was convicted of probation violations in separate car theft and armed robbery cases. Two judges, including Daniels, each tacked on consecutive five-year prison terms, stretching Banks’ total sentence to 45 years, court records show.

Banks began writing to Daniels about the attempted murder case at least as early as April 2006.

“I am being held with no bail for a charge that I did not commit,” the defendant wrote. “I tryed [sic] to explain it was not me since 3-13-06. An [sic] you believed me some way, that’s why you ask for a polygraph test or evidence stating that it was not me who perpetrated the alleged crime.”

Although Banks said he and his family could not afford a lie-detector test at the time, he offered the affidavit of his by-then-ex-girlfriend, recanting her accusations that it was Banks who shot at her.

The judge said it was not the first time that he has offered to let a defendant take a polygraph test.

“The appellate courts say it can’t come in [as evidence] as proof of guilt or innocence, and I certainly agree that the state shouldn’t be able to say, ‘He failed a polygraph so you should find him guilty on that basis,'” said Daniels, who said he could not comment on the particulars of Banks’ case.

Noting that private employers, the military, the federal government and even local prosecutors’ offices routinely use lie-detector tests, he added, “They use them as an investigatory tool. I’m just using it as a sentencing tool.”

Prosecutor Stephen Roscher vehemently opposed Banks’ request. In a letter to the judge in July, he called it “a folly and a waste of valuable court time” and equated the defendant’s “desperate attempt to lead us to the ‘real shooter'” to “O.J. Simpson declaring his intent to find the ‘real killer’ of his wife and her friend.”

“I don’t put a whole lot of weight in them,” Roscher said of polygraphs in an interview. “Someone who is a good liar – and let’s face it, people who are constantly going in and out of court on criminal matters probably are not the most honest people – for them, telling a lie isn’t the same as a person who feels some sort of guilt or apprehension about it.”

For his part, Daniels says he will not let the polygraph alone dictate whether he reduces Banks’ sentence and pointed out that his decision has no bearing on Banks’ conviction or sentence in the shootings.

“As a judge, I have to be able to sleep at night knowing I’ve done the right thing and the fair thing,” Daniels said in an interview yesterday. “And in this case, I believe the fair thing is to let him show by way of a polygraph that he didn’t do it, if he’s able to.”

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