Federal Appeals Court Rules Certain Mandatory Sex Offender Polygraph Questions Unconstitutional

10th Circuit Court of Appeals Building in Denver, Colorado

The United States Court of Appeals for the 10th Circuit has ruled in a 25-page opinion (PDF) that a convicted sex offender in a post-conviction polygraph program cannot be compelled to answer questions about his sexual history that could tend to incriminate him. So-called “sexual history polygraphs” are commonly administered early in such programs, and typically include questions about any past, undetected sex crimes. The court’s ruling finds that compelling an individual to answer such questions, under threat of sanctions such as being removed from a treatment program and returned to prison, violates the individual’s 5th Amendment right against self-incrimination in the absence of a grant of immunity.

The specific mandatory sexual history polygraph questions that the appellant, Brian von Behren, refused to answer, and that the court found violated his 5th Amendment rights, were:

  1. After the age of 18, did you engage in sexual activity with anyone under the age of 15?
  2. Have you had sexual contact with a family member or relative?
  3. Have you every physically forced or threatend anyone to engage in sexual contact with you?
  4. Have you ever had sexual contact with someone who was physically asleep or unconscious?

The 10th Circuit ruling in U.S. v. Brian Von Behren (No. 15-1033), if not overturned on appeal, will bind federal courts in Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.

For additional commentary, see Jesse Paul’s report, “Colorado sex offender’s lie detector court win could have big impact” in the Denver Post and Jonny Bonner’s Courthouse News Service report, “Forced Polygraph of Sex Offender Unconstitutional.”

Reader comments are welcome.

“Interrogation Machine’s Maker Settles Crowe Suit”

San Diego Union-Tribune staff writer Onell R. Soto reports. (The National Institute for Truth Verification, which markets the Computer Voice Stress Analyzer (CVSA), had earlier admitted in court that their device is not capable of lie detection, but continues to suggest otherwise on its website):

The maker of a machine police used while interrogating the brother of slain Escondido girl Stephanie Crowe agreed to settle a lawsuit that accused it of making a faulty device that falsely led to murder charges, lawyers said in court yesterday.

Michael Crowe and two friends, Joshua Treadway and Aaron Houser, were initially accused in 12-year-old Stephanie Crowe’s stabbing death in 1998. Their lawyers said police falsely obtained confessions using the machine.

Murder charges were dropped after Stephanie’s blood was found on a transient’s sweat shirt as the boys headed to trial in 1999. The transient, Richard Tuite, was convicted of manslaughter in the slaying last year and is in prison.

After the charges against the three boys were dropped, their families sued police officers, prosecutors, the government agencies that employed them and the makers of the machine.

U.S. District Judge John S. Rhoades dismissed the majority of the case; attorneys for the families said they will appeal his rulings.

The settlement means there will be no trial for the National Institute for Truth Verification, makers of the Computer Voice Stress Analyzer. Rhoades had ordered a trial six weeks ago.

Lawyers for both sides said they can’t spell out how much the company will pay the families because of a confidentiality agreement.

“It’s not an admission of liability,” Kimberly Oberrecht, who represents the company, said of the settlement.

Crowe family lawyer Milton Silverman called the company’s machine “a fraud and a sham” in court papers and said its use coerced two of the three boys to wrongly tell police they took part in the stabbing death of Stephanie.

Rhoades said he didn’t believe he could approve keeping the settlement amount secret, but the lawyers said later they will arrange for the suit to be settled out of court.

The National Institute’s West Palm Beach, Fla., offices were closed yesterday evening. The company describes the $9,995 machine on its Web site as being “effective in all investigative situations.”

It lists 158 police agencies in California, including several in San Diego County, as clients and says the machine is more effective than a polygraph in determining whether someone is lying.

Michael Crowe and Treadway both denied involvement in Stephanie’s stabbing, but they said they began doubting themselves after an Oceanside police officer working with Escondido investigators told them the machine was highly accurate and indicated they were lying, lawyers said.

“Crowe Family Can Sue Makers of Lie-Detector Test”

North County Times reporter Teri Figueroa reports on a lawsuit involving the National Institute of Truth Verification, which markets the “Computer Voice Stress Analyzer”:

SAN DIEGO —- A federal judge ruled Monday that three teenagers initially accused of killing Stephanie Crowe can sue the makers of a voice analyzer test that police used to gauge whether the boys were lying when in the days following the child’s death.

The teens, now young adults, were charged with murder in the 1998 stabbing death of the 12-year-old Escondido girl. The three were jailed, in large part, based on statements two of them made to police during lengthy interrogations.

The families are suing the National Institute for Truth Verification, which makes the voice analyzer machine that police used in interrogating the boys.

The suit proclaims that the manufacturers are liable for the harm the boys suffered, and that the product led the boys to make false and misleading statements to police. Calling the machine a “fraud,” in recent court documents, Michael Crowe’s attorney argued that use of the machine caused Crowe to doubt his memory, and ultimately prompted the boy to tell police that he must have killed his sister, even though he could not remember doing so.

The makers of the product, which is called a Computer Voice Stress Analyzer, argued that use of the machine —- and the damning statements from the boys that followed —- represented only a small part of the reason the three boys were arrested for the slaying.

Charges against the boys were dropped a year later, after DNA tests revealed the slain girl’s blood on the clothing of transient Richard Tuite. Last year, a jury convicted Tuite in the girl’s death.

Long before Tuite’s arrest, the families of the three boys sued the Escondido police department and others, mostly over a slew of allegations that included violations of constitutional rights in the boys and the families were treated.

The boys’ attorneys argued that confessions —- later ruled by a court to have been coerced —- elicited from two of the boys were the main reason the teenagers were arrested.

U.S. District Judge John Rhoades said it’s up to a jury to decide just how much impact the machine had on the arrests.

The ruling means the six-year-old civil case may finally head to trial, although the case is now just a sliver of what it once was.

“It’s the first morsel of anything we’ve got to chew on,” Crowe family attorney Milt Silverman said after the hearing. Stephanie’s older brother Michael Crowe was among the three boys accused in her slaying. Buddies Joshua Treadway and Aaron Houser were also jailed charged with murder. Crowe was 14 at the time, Treadway and Houser were 15.

Most of the civil suit filed by the families of the three boys against the Escondido police department and others has been dismantled, with Rhoades tossing much of the case dealing with alleged constitutional violations.

The families argue that the arrests came primarily as a result of damning statements from Crowe and Treadway. All three of the boys took the “truth verification” tests during their questioning, and all three boys were told by police that they had failed the tests.

Silverman also argued that the makers of the product —- which he said has “no scientific validity whatsoever” —- misrepresented its accuracy to police.

At the end of two 10-hour interrogations, Treadway ultimately told police the three teenagers had followed through on a plan to kill Stephanie, 12 years old at the time of her death.

A videotape of the interrogations show Treadway focusing intently on the results of the “truth verification” test, which police told him he failed.

The makers of the voice stress analyzer, the National Institute for Truth Verification, had asked Rhoades to disallow the three families from suing them.

Attorneys for the makers of the product claimed the results of the tests did not play a part in the charging and jailing of the three boys. They pointed out that Rhoades, in earlier rulings, found that the police did have probable cause to arrest the boys.

Kim Oberrecht, attorney for the makers of the machine, told the judge that there are no facts to support the plaintiffs’ theory that the boys confessed because of the machine.

Oberrecht declined to comment after the hearing.

Last month, Rhoades ruled the Crowe family has no grounds to sue on most of its claims, including a claim that police violated their Fourth Amendment rights against unreasonable search and seizure during the investigation into the girl’s death.

Also, the Crowe family cannot sue over the lengthy police interrogations of Michael Crowe, nor can the family sue over their claims that police wrongly arrested him for the slaying, Rhoades found.

Rhoades did agree to let part of the suit move forward, including allegations by Stephanie’s parents that Escondido police falsely imprisoned them by refusing to let them leave the police station. However, Escondido police are challenging that ruling in the Ninth Circuit Court of Appeals.

Rhoades’ findings last month came a year after he granted defense requests to toss out almost all of the claims the Houser and Treadway families raised.

“Marion Jones Wants BALCO Founder to Take Lie Detector”

Dick Patrick reports for USA Today:

Continuing efforts to clear her name that includes a $25 million lawsuit filed this week against Victor Conte, Olympic sprinter Marion Jones on Thursday challenged the Bay Area Laboratory Co-Operative founder to take a lie detector test.

Conte has accused Jones of taking performance-enhancing drugs.

Jones, whose defense team arranged a lie detector test that she passed, wants Conte to answer three questions:

•On April 21, 2001, did you observe Marion Jones inject herself with performance-enhancing drugs?

Conte told ABC’s 20/20 newsmagazine and ESPN The Magazine that he did see the five-time Olympic medalist from the 2000 Games do so.

•Have you ever leaked any grand jury testimony or other evidence related to the current criminal proceeding pending in federal court against you?

Conte has been indicted on federal charges of steroid distribution and money laundering.

•Have you ever observed Marion Jones illegally taking any performance-enhancing drugs?

“Jones Wants Lie Detector Test for BALCO Head”

Reuters correspondent Adam Tanner reports:

SAN FRANCISCO (Reuters) – The lawyer for triple Olympic champion Marion Jones has challenged the indicted head of the BALCO laboratory to take a lie detector test after he alleged he had seen her taking performance-enhancing drugs.

The challenge comes a day after Jones sued Victor Conte $25 million for defamation, saying he had falsely accused her of doping.

“Today we challenge Mr Conte to take and make public a lie detector examination from a qualified, well-respected polygrapher,” Jones’s attorney Rich Nichols said in a statement.

“Marion Jones took, passed and made public a lie detector test, which confirmed what she has said publicly, what her then coach has reportedly said and what her doctor reported — she has never, ever used performance enhancing drugs.”

“To date, Mr Conte has not taken a lie detector test.”

Jones, the only woman to win five track and field medals at a single Olympics, is seeking to restore her reputation after the BALCO scandal cast doubt on her past achievements. The International Olympic Committee recently set up a disciplinary commission to investigate Conte’s allegations.

Conte, who faces charges of steroid distribution and money laundering, said this month in a U.S. television interview and article that he had supplied steroids to top athletes including Jones.

Her lawyer wants Conte to answer whether he ever saw her take performance-enhancing drugs and if he had leaked any grand jury testimony.

“It is easy to go on national television and, as the lawsuit states, make ‘false, ‘malicious’ and ‘misleading’ statements designed to do harm to Ms. Jones’ character and reputation,” Nichols said. “However, it is quite another matter to take a polygraph examination that will test whether one is a truthful person or an untruthful person who engages in deception.”

Conte, a former bass guitarist and then self-educated nutritionist who lives south of San Francisco, did not immediately respond to the latest challenge.

On Wednesday he stood by his statement that Jones had used performance enhancing drugs.

“This is nothing more than a PR stunt by a desperate woman, who has regularly used drugs throughout her career,” he said in an e-mail. I am telling the truth and Marion is lying.”

Conte, his deputy and two coaches are due to go to trial next year in the BALCO case that has also tarnished the reputations of athletes such as baseball’s Barry Bonds.

Unfortunately, Marion Jones’s passed polygraph examination proves nothing. Similarly, a polygraph examination of Mr. Conte would prove nothing. Polygraph testing has no scientific basis, has an inherent bias against the truthful, and yet is easily passed through the use of simple countermeasures that polygraphers cannot detect.

“Marion Jones Sues BALCO Founder, Challenges Him to Polygraph”

Associated Press legal affairs writer David Kravets reports in this article published by the San Francisco Chronicle. Excerpt:

Olympic track star Marion Jones has filed a defamation lawsuit against Victor Conte and challenged the BALCO head to take a lie detector test regarding his accusations that she used performance-enhancing drugs.

Jones is seeking $25 million in the suit filed Wednesday in U.S. District Court in San Francisco, alleging Conte tarnished her reputation when he made the statement broadcast Dec. 3 on ABC’s “20/20.”

Conte and three others connected to the Bay Area Laboratory Co-Operative were indicted in February by a federal grand jury for a variety of alleged offenses, including illegally distributing steroids.

The suit said Jones passed a lie detector test and includes a statement from her doctor saying she never used steroids. Jones won three gold medals and two bronzes during the 2000 Olympics.

Conte’s statements, the suit said, “are false and malicious.”

In an e-mail to The Associated Press, Conte said the lawsuit was “nothing more than a PR stunt by a desperate woman, who has regularly used drugs throughout her career. I look forward with all confidence to the court proceedings as I stand by everything I said on the ’20/20′ special.”

Jones’ attorneys offered Thursday to pay for Conte to take a lie-detector test and wants three questions asked of him:

* Did he observe Jones injecting herself with performance enhancing drugs on April 21, 2001, as he stated on national television?

* Has he ever leaked any grand jury testimony or other evidence related to the BALCO investigation?

* Has he ever observed Marion Jones illegally taking any performance-enhancing drugs?

A former FBI polygraph examiner said he tested Jones on June 16 about whether she ever used performance-enhancing drugs or was lying about “any personal use of performance-enhancing drugs.”

“It is my opinion that these responses are not indicative of deception,” former agent Ronald Homer wrote in the lawsuit.

“N.M. Supreme Court: Polygraph Results Can Be Used as Evidence”

KOBTV.com has published the following brief Associated Press report:

(Santa Fe-AP) — The state Supreme Court has ruled that polygraph test results can continue to be used as evidence in New Mexico courts.

New Mexico has allowed the use of lie detector results in courts for decades.

However, the Supreme Court has been considering whether to change its rule.

In a 30-page ruling, the court reaffirmed its rule and said polygraph test results are sufficiently reliable to be used as evidence in trials.

The state attorney general’s office had argued that polygraph tests were unsound science and should be excluded as evidence.

The Supreme Court makes rules for other New Mexico courts to follow.

The court’s ruling came in five consolidated criminal cases.

In a trial, polygraphs are sometimes uses to verify the truthfulness of witnesses and their testimony.

In endorsing the continued admissibility of polygraph “evidence,” the New Mexico Supreme Court chose to ignore the conclusions of District Judge Richard J. Knowles, whom the court had earlier directed to enter findings of fact and conclusions of law regarding polygraph testing. After reviewing a large body of documentary evidence and hearing testimony from experts, Judge Knowles concluded that “[t]he results of polygraph testing are not sufficiently reliable for admissibility in courts in New Mexico.” His report, (New Mexico Supreme Court No. 27,915) may be downloaded as an 869 kb PDF file here.

$4 Million Awarded to Employees Fired for Refusing Polygraph

Philadelphia Inquirer staff writer John Shiffman reports in an article titled, “A.C. firm must pay fired trio $4 million”:

No one ever solved the mystery of who stole $4,000 from a desk at the telemarketing offices of a Jersey Shore time-share, or even whether any crime was really committed at all.

But this much is known: Three company employees – a polished salesman, a single mother, and a recovering drug addict – were fired over the alleged theft. Four years later, the same three suspects stand to share a $4 million judgment against the company.

“On paper, I’m now a millionaire,” said the salesman, Paulino Bonds of Mays Landing, who grew up in Northeast Philadelphia. “But I know it’s not over.”

A federal jury delivered the multimillion-dollar award last month, concluding that the employer, Flagship Resort Development Corp., of Atlantic City, fired the workers because they refused to take lie-detector tests.

A 1988 law prohibits companies from asking employees to take a polygraph. But such cases rarely make it to trial, say lawyers who have researched the issue, in part because the law is so seldom violated.

“This may be one of the first of its kind to go to verdict,” said Karen Williams, the attorney for Flagship, which has filed motions seeking to have the verdict and $4 million award thrown out. “But the punishment has to fit the crime.”

Bonds’ attorney, Randolph C. Lafferty, agreed that the case was unusual, but said the award was just, given the “flagrant violation of the law.”

“I think that’s why the jury thought it was important to send a strong message,” Lafferty said.

Two jurors who heard the case said it was obvious Flagship fired Bonds, Gloria Gadson and Danielle Lyles for refusing to take a polygraph.

“What happened to those people wasn’t right,” said juror Vivian Komar, a nurse from Cape May. “They were violated. They were decent people.”

Did the three workers steal the money? Komar said she doubts it. “They had too much to lose,” she said.

Another juror, Megan Giordano, a graduate student who lives in Gibbstown, said she was still not sure.

“I still haven’t figured that out,” Giordano said, though she added it was “clear cut” the employer broke the law by requesting the polygraphs.

Mark Pfeffer, who represented Lyles, said there was no evidence anyone stole any money. “If I had thought she had stolen the money, I never would have represented her,” he said. “When you get terminated from your job for stealing money when you didn’t, it makes it real hard to get another job.”

The theft is alleged to have occurred 10 days before Christmas 1999 at the time-share’s call center in Brigantine, where Bonds, Lyles and Gadson worked.

Bonds, 39, was the successful salesman. He supervised telemarketers who pitched the time-shares for Flagship and earned $70,000 a year.

Lyles, 29, was the single mother with two small children, whose supervision of the company’s data-entry employees earned her about $30,000 a year.

Gadson, 45, was the recovering addict, who had recently moved to the Atlantic City area from North Jersey and had successfully completed a rehabilitation program. She was eager to restart her life and was earning $35,000 a year supervising telemarketers, Lafferty said.

The three did not work directly together, but bonded while smoking Newports outside during work breaks.

On the day of the alleged theft, a coworker, Charlotte Blake, who sat next to Lyles, left to pick up a check for about $4,100 from her lawyer. It was money owed from an unrelated auto accident.

Blake testified that she cashed the check at a check-cashing agency and visited her boyfriend before returning to her office. She said she carried the cash into the office in an envelope.

She said she told Lyles about the money, put it inside her desk drawer, then walked away to help plan an office Christmas party. When she came back, she lamented that the money was missing. The police were called. Desks, cars and trash cans were searched, but no money was found.

Almost immediately, Blake cast suspicion on Lyles. The police took statements at the Brigantine station from both women.

Flagship hired a private investigator. He took statements and wrote up a report, recommending that Blake, Gadson, Bonds and Lyles be asked to take lie-detector tests.

Flagship executives asked them to take the polygraphs. Blake agreed and passed, according to the investigator’s report. The three others refused and were fired.

Gadson and Lyles became upset. But Bonds said he was not worried. In telephone conference calls with his two colleagues, he told them to calm down. They had been wronged, he said. Their employer had violated a federal law. He had learned about this obscure law a few years back, he explained, during supervisor training while working at Trump Plaza Hotel and Casino. They needed to find good lawyers and sue, he told them.

The case took four years to reach trial before U.S. District Judge Joseph Irenas in Camden. The trial lasted 10 days.

During deliberations, jurors did not find Blake credible, jurors Komar and Giordano said.

“Come on, if that’s all the money you have in the world, are you going to broadcast it?” Komar said.

Komar said jurors were wary of Blake’s story because she had a previous criminal conviction related to dishonesty, one she did not list on her employment application. At the time, Blake still owed about $4,000 in restitution related to the criminal case, records show.

After a day of deliberation the jury awarded compensatory damages. Lyles got $88,285 in lost wages and $100,000 for emotional distress. Bonds won $263,040 in lost wages and $200,000 for emotional distress. Gadson received $145,320 for lost wages and $300,000 for emotional distress.

The next day, the jury awarded punitive damages – about $1 million each.

Bonds, who owns a small home in the Frankford section of Philadelphia, said that if the award were upheld, he and his wife planned to buy a home in the Mays Landing area.

Lyles also plans to buy her first home. She didn’t expect to win, she said, because she doesn’t share Bonds’ faith in the justice system. “The kind of justice I usually see is African Americans getting the short end,” she said.

Gadson was not in court for either jury award. She was in state prison, serving a four-year term for marijuana possession with intent to distribute. She has breast cancer, she testified at trial, and was using the marijuana to lessen the ill effects from chemotherapy. Lafferty said Gadson chose prison over other sentencing alternatives “because, sadly, the health-care benefits are better.”

Gadson, too, plans to use the money to buy a house.

“She’s just glad justice has been done,” Bonds said.

Public employees should have the same protections against the voodoo science of polygraphy that these employees enjoyed under the Employee Polygraph Protection Act of 1988. In many government agencies, employees may be fired with impunity for refusing to submit to a lie detector “test.” A Comprehensive Employee Polygraph Protection Act is needed.

Connecticut: “Former Trooper Awarded $225,000”

This article by Hartford Courant staff writer Tracy Gordon Fox is cited here in full.

BRIDGEPORT — In what her attorney called “a victory for the rights of whistleblowers,” a jury awarded a former state trooper $225,000 Thursday for being punished after she raised concerns about the accuracy of the state police polygraph unit.

Adrienne LaMorte sued her former supervisor, state police Major John Leonard, for transferring her after she complained about Sgt. Randolph Howell, her immediate superior in the polygraph unit. She said he was conducting polygraph examinations in an incompetent manner, according to the lawsuit.

The case, which was heard in federal court, raised some serious issues within the state polygraph unit, which Howell still supervises. The jury found that LaMorte’s rights to free speech were violated.

LaMorte’s attorney, Karen Lee Torre of New Haven, said the lawsuit was “a victory for the rights of state employees to freely speak about what their agencies are doing wrong.”

“Instead of doing the right thing, they ended up punishing the whistleblower.”

Leonard is now retired from the state police. Assistant Attorney General Joseph Jordiano, who represented Leonard in the trial, could not be reached for comment Thursday.

But Attorney General Richard Blumenthal said Thursday that his office would determine whether an appeal was necessary.

“We will review the evidence presented at trial and recommend the state police do so as well.”

Sgt. J. Paul Vance, a state police spokesman, said he knew of no problems within the polygraph unit.

Among the questionable polygraph tests were those given to suspected child molesters, who Howell said had passed when the evidence showed they had scored in the failing range, Torre said. Although polygraphs are not used in criminal trials, they are often used as an investigative tool for police and prosecutors. During the trial, another former state trooper testified that he also had concerns about how the polygraphs were being done.

“These were important cases and decisions were made based on those,” Torre said.

In June 2000, LaMorte told Leonard, who was then commanding officer of the division of the state police that oversees the polygraph unit, that Howell “did not possess the knowledge, skill or competence to perform polygraph examinations and had conducted examinations in a manner which fell far below the standards.”

According to the lawsuit, two months after LaMorte complained about the polygraph unit, Leonard brought charges against her for allegedly violating rules of confidentiality for polygraph examinations and being rude to an examinee. As a result of those two complaints, LaMorte was issued a written reprimand and transferred from the unit.

It should be noted that the Connecticut State Police (CSP) polygraph unit headed by Sgt. Randolph Howell brands some 60% of CSP applicants who advance as far in the hiring process as the polygraph as liars.

Polygraph Manufacturer Stoelting CEO Pleads Guilty to Export Violation

The Chicago Tribune reports in an article titled, “CEO pleads guilty to export charge”:

The chief executive officer of a suburban manufacturer and the company itself pleaded guilty Friday in federal court in Chicago to trying to export polygraph machines to China without a license.

Lavern Miller, 79, the CEO and chairman of Stoelting Co. of Wood Dale, faces up to 16 months in prison, Assistant U.S. Atty. Brian Havey said. The company could be fined up to $500,000.

After the U.S. Department of Commerce denied the company a license to export five polygraphs in 1999, Miller admitted he tried to route the machines through a business associate in Italy. But United Parcel Service notified the Commerce Department.

The machines eventually were to be sold to law enforcement authorities in China, but U.S. officials denied the license because of China’s history of human-rights abuses, Havey said.

For discussion of this article, see the AntiPolygraph.org message board thread, Polygraph Maker Guilty of Export Violation.