“Lawyer: Use Polygraph to Prove Innocence”

Jamie Satterfield reports for the Knoxville, Tennessee News-Sentinel:

If a polygraph test can help land a person in jail, a Knoxville lawyer argues, why can it not be used to free the accused?

Knoxville attorney Gregory P. Isaacs wants to use the results of a polygraph examination to try to prove to a jury that his client, Robert Nathaniel Hicks, did not rape and sexually batter two children.

Hicks, the son of Anderson County Assistant District Attorney General Jan Hicks, and his wife, Paula Hicks, both of Caryville, are accused of molesting a young boy and a young girl on several occasions between June 1997 and November 2001.

The high-profile case has been moved to Knox County Criminal Court, and Knox County District Attorney General Randy Nichols has been tapped to lead the prosecution effort.

Isaacs has filed a motion asking Judge Richard Baumgartner to do something the state Supreme Court says cannot be done – allow the results of a polygraph examination to be presented at trial.

Although he had not yet seen the motion, Nichols dismissed it out of hand. The tests have long been barred as evidence in criminal trials because courts have concluded they are “unreliable.”

But Isaacs contends those same tests are used at nearly every other phase of the criminal justice system.

Police routinely use the examinations to either eliminate someone as a suspect or glean a confession. State child abuse investigators are encouraged by the Department of Children’s Services to use the tests to help substantiate abuse claims.

The state Board of Probation and Parole uses polygraph examinations to monitor sex offenders, who are required to pay for and submit to the testing every six months to stay free.

Probation and parole officers have used the results of those examinations to help build a case to violate the probation or parole of sex offenders.

“You can’t have it both ways,” Isaacs said. “The prosecution says it’s OK to use them if you’re lying, but you can’t use them to establish you’re telling the truth, which makes absolutely no sense. It would be tantamount to saying DNA testing can be used to put you in jail but not to get you out of jail.”

Robert Hicks and his wife are accused in a case that Isaacs’ motion insists is a lie crafted by opposing parties in a civil court dispute.

Citing notes from the DCS case manager who interviewed the children, Isaacs details how the girl initially denied any abuse and the boy’s initial tale was fraught with inconsistencies.

The stories grew more twisted over time, the motion states.

According to the motion, the children were interviewed in early December 2001. The girl’s denial of abuse at that interview changed when a caretaker picked her up and then phoned the case manager to say the girl had lied, the motion stated.

The girl was interviewed again later that day and recounted one alleged instance of abuse, the motion stated.

Three weeks later, the children’s caretakers again phoned DCS and contended the children lied, the motion alleged. In a subsequent interview, the children told tales of abuse that included the use of “elephant tranquilizers” and unknown pills, the motion stated.

Isaacs argued in the motion that there is no medical or forensic proof to substantiate abuse claims. He and attorney Herbert S. Moncier, who represents Paula Hicks, have not been allowed to interview either child, and a request for a psychological evaluation of the children has not been approved.

But there is evidence, Isaacs contends, to exonerate Robert Hicks – namely, a polygraph test.

Assistant Public Defender Ken Irvine, a veteran attorney, said Isaacs faces an uphill battle to convince Baumgartner to allow the polygraph results to be used at trial.

“The real problem is not that they won’t let it into court but that (authorities) have been unable to scientifically show how reliable it is,” Irvine said.

A polygraph, more commonly known as a lie detector test, records various physiological responses – breathing, pulse and galvanic skin response – while a person is answering questions.

The theory is that lying is stressful, and changes in these physiological responses show the changes in a person’s stress level during the examination.

The test relies in large part on the ability of the examiner to interpret the recorded responses and the questions posed. Questions must be crafted in a precise way, although there is no formula for how those queries should be constructed.

Polygraph examiners must be licensed in the state of Tennessee. To be licensed, an examiner must have graduated from an approved polygraph school and have either a bachelor’s degree or a mix of college work and investigative experience.

Debate over the reliability of polygraph testing has raged for years. Proponents argue the testing has a more than 90 percent accuracy rate. Opponents put that rate at 70 percent.

The state Supreme Court has repeatedly held the testing unreliable and barred its use at either trial or sentencing hearings. However, the court has not banned its use as an investigative tool for police or probation officers.

Parole board official Jack Elder said his agency requires polygraph testing of all sex offenders released on parole or probation. The testing is authorized under the state Department of Correction’s Sex Offender Treatment Board policies.

Elder and Field Services Director Gary Tullock said the testing is not used to ferret out reasons to send a sex offender back to jail.

“It serves as a deterrent, and it’s a way to target (the offender’s) treatment needs,” Elder said.

Case law shows that polygraph testing has been used, in part, as a basis for prosecutors to argue a sex offender should be returned to prison.

“I personally think that’s wrong,” Irvine said. “That’s the real problem, that they’re using the testing to revoke people from probation or parole. I don’t think that is being challenged as often as it should be.”

A trial date in the Hickses’ case has not been set.

Lawyer Gregory P. Isaacs is right that it’s a double-standard for government to rely on polygraphs to monitor convicted sex offenders and at the same time hold that polygraph results are inadmissible as evidence in court. But the proper solution is to abolish polygraph “testing” altogether, not to allow this pseudoscience into court rooms.

“State Fire Marshal’s Office Polygraphs Gallatin Firefighters”

Gallatin News Examiner editor Deborah Highland and staff writer Jane Stegmeier report:

An investigator from the Tennessee Fire Marshal’s office is conducting polygraph tests on Gallatin’s firefighters to determine who, if anyone, among their ranks is a quarter thief.

“I decided that we would find whether we had somebody that wasn’t telling the truth,” Gallatin Fire Chief Joe Womack said.

On April 28, a firefighter noticed that a roll of the Florida state quarters minted in Denver had been stolen from a firefighter’s bed at the downtown fire hall, Womack said.

The Denver-minted coins had not yet been released in this part of Tennessee, Womack said. The coins were to become part of a coin collection, though they are not yet worth anything other than their face value.

A short time later, a firefighter found a neat stack of $5 to $7 worth of Denver-minted Florida quarters in the “honor box” set up at the fire hall for people to buy snacks, Womack said.

Womack believes that the quarters may have been taken and then placed back into the honor box by someone within the 44-person department who wanted to play a joke, and now that person is afraid to come forward.

“It’s not the $10 value I’m looking at. It’s the principle of it,” Womack said.

Also, Womack wants his personnel to be able to trust one another.

That’s why he decided that a polygraph test of all personnel was warranted. So far about nine or 10 firefighters have been tested, Womack said. The polygraph testing will continue until someone either steps forward or all employees are tested for their truthfulness in the matter. If nothing pans out from the polygraph testing, finger printing of the coins will occur next, he said.

Law enforcement officials were not called in to investigate, Womack said. Instead, he asked for the services of the state fire marshal’s office.

Dana Turner, spokeswoman for the state fire marshal’s office said her office “can’t confirm one way or the other” regarding the state’s firefighting resources being used to investigate a theft.

Bob Pollard, assistant director of the bomb and arson investigation section — the same section that oversees fire marshal’s polygraph examiners, said that their office fields numerous requests daily for a variety of different assistance.

“If we have something in our means to assist the local agencies and we are requested to do that, we evaluate each request individually and provide assistance where we can,” Pollard said.

Womack confirmed that a state investigator based in Cookeville is conducting the tests and was here as recently as Tuesday. The Gallatin Fire Department is not being charged for the fire marshal’s services, Womack said.

However, the starting pay of a special agent criminal investigator at the fire marshal’s office is $2,350 a month. That breaks down to a little more than $14 per hour.

Each polygraph exam for this type of investigation lasts at least 90 minutes, said Dan Sosnowski, spokesman for the American Polygraph Association based in Chattanooga.

That means that if all of the employees at the GFD are tested, the polygraphs will wind up costing state taxpayers at least $940.

B.R. Hall, president of the Local Union 140 of the Nashville Firefighters Association called the investigation “almost completely ridiculous.”

“To me, it’s much ado about nothing,” Hall said.

Mayor Don Wright and Womack disagree and said that even though the investigation involves a roll of quarters, it’s important to know who took the money.

“If someone will steal $10, they will steal $10,000,” Wright said. “My concern about firefighters is if we have one who can do this, I would sure be concerned about sending that person into someone’s home.

“I’m surprised and disappointed that this happened,” he said.

Several firefighters contacted about this story declined to comment.

Chief Womack’s polygraph dragnet is unlikely to reveal the identity of the Gallatin Fire Department’s quarter thief: polygraph “testing” is simply unreliable. If Chief Womack is truly concerned about ethics, then instead of subjecting his firefighters to voodoo science, he should simply proceed with testing the stolen-and-returned coins for fingerprints.

“Workman Claims Test Proves Witness Lied”

Amanda Wardle reports for the Nashville City Newspaper. Excerpt:

Attorneys have asked Gov. Phil Bredesen to review and consider clemency in the case of Tennessee death row inmate Philip Workman, pointing to evidence that an eyewitness in a 1982 capital murder trial was actually lying when he fingered Workman as the man who killed a Shelby County police officer.

Post-Conviction Defender Donald Dawson and attorney Jefferson Dorsey Tuesday morning said they have the results of a lie detector test which allegedly proves Harold Davis, one of the state’s key witnesses in Workman’s trial, was not telling the truth when he said he watched Workman shoot Memphis police Lt. Ronald Oliver in the chest while the officer attempted to apprehend Workman for robbing a Wendy’s restaurant.

Representatives for the state Post-Conviction Defender’s Office Tuesday morning presented an 11-page request to Bredesen, accompanied by several hundred pages of court documents and other evidence, asking that the governor commute the death sentence in Workman’s case. Workman is scheduled to die by lethal injection Sept. 24 at Riverbend Maximum Security Institution in Nashville.

Davis, who is serving time for robbery in a California prison, submitted to the polygraph test June 17, the results of which indicate he is telling the truth when he claims his testimony at Workman’s trial was false, according to the request.

Davis recanted his testimony from Workman’s trial, stating under oath at an evidentiary hearing several years ago before a Shelby County judge that he was not telling the truth when he told jurors at Workman’s trial that he witnessed much of what occurred on the night of Workman’s arrest.

Defense attorneys said they do not know of any motive that would suggest why Davis, who called police to report that he had witnessed the crime, might have perjured himself. Davis is reported to be a longtime drug user who was under the influence on the night the incident occurred.

Workman’s defense said Tuesday morning that polygraph tests are not always allowable in court proceedings, but noted that the governor has complete discretion to take them into consideration in the clemency request.

“Workman’s Lawyers Release Lie Detector Test”

Chris Bundgaard reports for WKRN-TV News 2. Excerpt:

Philip Workman faces execution in September for the 1981 shooting death of a Memphis police officer. On Tuesday, attorneys asked Governor Phil Bredesen to spare the inmate’s life, saying a lie detector test supports their claims that an eyewitness lied.

For years, lawyers for Workman have contended that Harold Davis perjured himself at the original trial of their client. They’ve said that Davis backed off testimony that he saw Workman shoot police officer Ronnie Oliver to death outside a Memphis Wendy’s in 1981.

Attorney Jefferson Dorsey said, “Short of time travel, I cannot think of a more powerful way to show that Harold Davis was not there and that he lied at trial”

Monday morning, as they released a clemency petition filed with Gov. Bredesen, Workman’s lawyers showed a new picture of Davis as he recently underwent a polygraph administered by Kenneth Vardell – a former career FBI agent touted by the lawyers to be well-respected in the field. “He says absolutely that Harold Davis was telling the truth when he did not see Philip Workman shoot Lt. Oliver,” said Dorsey.

“DOE Plan Keeps the Lie Detector: Security Needs Override Questions About Reliability of the Polygraphs”

Frank Munger reports for the Knoxville News-Sentinel. Excerpt:

OAK RIDGE – It’s a real-life variation of the game truth or consequences.

The Department of Energy figures the potential consequences of a security breach in the nuclear weapons program are so grave that extraordinary precautions must be taken. That includes truth testing for key employees.

Despite a running controversy over lie-detector tests and a negative report from the National Academy of Sciences, DOE plans to retain polygraphs as a screening tool and possibly expand their use at high-risk operations – such as the Y-12 weapons plant in Oak Ridge.

At least 2,000 Oak Ridge employees are subject to the exams, Steven Wyatt, a DOE spokesman, confirmed last week.

Wyatt declined to specify which jobholders are tested or which contractors are involved, but most of the targeted employees in Oak Ridge apparently work at Y-12. The federal plant produces parts for nuclear warheads, and it is the nation’s main repository for bomb-grade uranium.

DOE rushed to implement a polygraph program in 1999 because of intense pressure from Congress to respond to concerns raised by a spy scandal at Los Alamos National Laboratory in New Mexico.

The federal agency now is reshaping its counterintelligence program to protect classified data and materials. It is part of a mandate from the 2002 National Defense Authorization Act, which ordered DOE to take into account a polygraph review by the National Academy of Sciences.

The academy’s panel looked at scientific evidence regarding the validity of polygraph exams and concluded that the exams are too inaccurate to be used for employee screening.

The national academy was more accepting of “exculpatory” polygraphs applied to specific incidents, in which a person may be asked questions related to an allegation of wrongdoing. But, overall, reviewers argued against using polygraphs to ferret out transgressions among employees.

DOE acknowledged the academy’s arguments in a Federal Register notice published last month, but the agency said those arguments weren’t enough to make it abandon the use of polygraphs.

“Doing so would mean that DOE would be giving up a tool that, while far from perfect, will help identify some individuals who should not be given access to classified data, materials or information,” the notice of proposed rulemaking said.

DOE said it was instructed by Congress to develop a polygraph program that could minimize those risks. The agency said it’s particularly important not to weaken controls at a time when the United States “is engaged in hostilities precisely in order to address the potentially disastrous consequences that may flow from weapons of mass destruction falling into the wrong hands.”

Doug Hinckley, head of DOE’s counterintelligence programs, said the agency uses polygraph testing primarily for deterrence, not detection.

“We’ve been using it now for several years, and we would not continue to use if it we didn’t think it had value,” Hinckley said in a telephone interview from his Washington office.

The federal official would not reveal the number of negative findings identified by polygraph exams during the past three years. “That’s something I wouldn’t want to comment on,” he said.

Hinckley and other officials emphasized that DOE does not use lie-detector tests to explore lifestyle issues with employees or ask about a person’s thoughts or beliefs.

In its original set of rules for polygraph exams, the agency promised to limit questions to an individual’s involvement in espionage, sabotage, terrorism, disclosure of classified information, unauthorized foreign contacts and “deliberate damage to or malicious misuse of U.S. government information or defense system.”

Officials at DOE and its sub-unit, the National Nuclear Security Administration, refused to discuss details of the tests. Hinckley acknowledged that Oak Ridge has a regional polygraph center, but he declined to say what company or companies supply the polygraphers for the testing.

While not identifying individuals or job titles subject to testing, DOE listed eight categories of jobs included in the polygraph program. Among them are jobs related to counterintelligence activities and participants in the Personnel Security Assurance Program, which includes many of the weapons-related jobs in Oak Ridge.

The PSAP list is tightly held, partly because of privacy concerns, but it includes those with access to special nuclear materials or information on weapons production.

Carl “Bubba” Scarbrough, president of the Atomic Trades and Labor Council, represents hourly workers at Y-12 and Oak Ridge National Laboratory. He said he doesn’t know how many of his union members hold PSAP jobs, even though he’s tried to find out.

“It’s kind of a mystery,” Scarbrough said.

The union official said he’s supposed to meet this week with a top security official at Y-12 to discuss concerns. Scarbrough said there haven’t been a lot of complaints about polygraph questioning, but he said some workers are worried about their job status if they refuse to take part in the PSAP program.

Although polygraphs are used widely today, even in a new generation of reality shows on television, they remain controversial.

Bill Bibb, a retired Department of Energy official who held top defense positions in Washington and Oak Ridge, said he never advocated polygraphs as a screening tool.

“DOE is a big damn jungle out there, and who is going to do it? There’s always a chance for retribution with all this stuff,” Bibb said.

He said he could support using polygraphs for certain investigations, such as material missing from a storage facility, but not broadly applied to a workforce.

“They scare people to death,” Bibb said.

“Details on Polygraphs of Kline, Dickman”

Tennesean staff writer Laura Frank reports. Excerpt:

Last month, John Kline sat down in a chair at the Marriott Residence Inn in Brentwood with tubes and wires attaching his body to a polygraph machine.

Consultant Kendall W. Shull, whose previous job was overseeing the Federal Bureau of Investigation polygraph unit at FBI headquarters in Washington, D.C., began asking questions as a computer screen charted Kline’s blood volume, breath rate, heartbeat and perspiration.

Kline had alleged that a former priest and principal molested him when Kline was a 16-year-old junior at Father Ryan High School. That man, Ron Dickman, said through an attorney that Kline’s allegations are false. The Tennessean commissioned the polygraph for Kline.

Among the many questions Shull asked Kline, one was most pertinent: ”Did Ron Dickman perform oral sex on you during the year 1981?”

Yes, Kline answered.

Shull asked it another way: ”When you say Ron Dickman performed oral sex on you in 1981, is that a lie?”

No, Kline said.

At the end of the two-hour process, Shull, who has an advanced polygraph studies degree from the University of Virginia and has done polygraph research for the Department of Defense, read the results.

”There is no question in my mind John is telling the truth,” Shull said later. ”The charts are real clear. Some charts aren’t. These are. There’s no question he passed the test.”

Shull sent a copy of Kline’s polygraph results to his partners at National Polygraph Consultants without revealing his analysis of the charts.

Analysts there reached the same conclusion, said Shull, who has conducted more than 380 polygraphs in cases of violent crime, espionage and more for the FBI.

The Tennessean relayed the results of the test to Dickman’s attorney, George Barrett, who discounted the validity of polygraphs.

”I don’t have any confidence in those,” Barrett said. ”They’re not really science. … They’re not admissible in court.” Barrett also declined The Tennessean’s request to have Shull administer a polygraph to Dickman.

Two weeks later, Dickman’s attorneys commissioned their own polygraph for Dickman. Attorney Edmund L. ”Ted” Carey Jr. said Dickman passed his polygraph, too.

”In Mr. Dickman’s pretest interview with the polygrapher, he denied any sexual involvement with Mr. Kline,” Carey wrote in a letter to The Tennessean.

When Dickman was hooked up to the polygraph machine, Carey said, the examiner asked questions that referred to the earlier conversation with Dickman:

· ”Did you lie about sexual abuse of John Kline?”

· ”Did you lie about having any sexual act with John Kline?”

· ”Were you physically present when John Kline was sexually abused?”

To each question, Dickman answered ”no.”

The polygraph examiner, Richard E. Poe of Largo, Fla., found the responses to be truthful, Carey said.

“Officers in Abuse Case to Take Polygraph Tests”

Nashville Tennessean staff writer Kathy Carlson reports. Excerpt:

Two Metro police officers charged with violating department regulations by abusing or failing to report abuse of Hispanic residents will take polygraph tests Tuesday that will help Deputy Police Chief Deborah Faulkner decide the case.

The officers, Michael Mann and Jason Beddoe, were formally charged May 30 — 19 months after the investigation into the allegations of abuse had begun. Their hearing on the charges began yesterday but was recessed until the tests are completed.

Mann and Beddoe have maintained their innocence throughout the investigation. One of their lawyers, Chris Lisle, has called the charges ”baseless.”

The polygraph questions will aim ”to see if the officers have been truthful about the things they’ve been charged with,” said Phillip Davidson, co-counsel with Lisle.

Faulkner and lawyers for the officers agreed yesterday on an independent polygraph examiner to conduct the test away from police headquarters, police spokesman Don Aaron said. Faulkner will work with the examiner in developing the questions, he said.

Metropolitan Nashville Police Department Assistant Chief Deborah Y. Faulkner, Uniformed Services Bureau, should decide the case based on the evidence presented, not on the divinations of polygraph chartgazers. You can help set her straight on polygraphy by calling her at (615) 862-7721 or sending a note to MNPD Chief Emmett H. Turner at chief@police.nashville.org.