Very Hot Topic (More than 25 Replies) Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing (Read 161931 times)
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Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Mar 23rd, 2008 at 12:41pm
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A lawsuit filed in January 2008 alleges the existence of an illegal referral scheme whereby sex offender therapists and probation officers of the Community Supervision and Corrections Department of Tarrant County, Texas (which includes Fort Worth) directed sex offenders subject to mandatory polygraph screening to go to specific polygraph examiners, rather than allowing them to go to any appropriately credentialed polygraph examiner.

The case is McCarthy v. Moore, et al., Case No. 048-228282-08 filed in Tarrant County, Texas District Court. AntiPolygraph.org has obtained copies of the original and amended petitions for declaratory relief, which may be downloaded, respectively, here:

https://antipolygraph.org/litigation/mccarthy/mccarthy-v-moore-original-petition...

https://antipolygraph.org/litigation/mccarthy/mccarthy-v-moore-second-amended-pe...

The key allegations of the case are set forth in Part IV of the Second Amended Petition for Declaratory Relief, the relevant portion of which is cited below:

Quote:
IV. FACTS

All attached exhibits in the recitation of facts along with Plaintiff's Supporting Affidavit, are attached to Plaintiff's First Original Petition for Declaratory Judgment; Application for Temporary Restraining Order; and Application for Injunction and are incorporated fully herein, along with all of the attached exhibits and recitation of facts in Plaintiff's First Amended Petition for Declaratory  Judgment and Application for Expedited Injunction.

On or about August 20, 2007, Fenian began operating in Tarrant County, Texas. On or about November 8, 2007, Fenian was placed on the approved list of polygraph examiners in Tarrant County, Texas. See Attached Exhibit A. The top of the document, which every which every [sic] sex offender on deferred adjudication or probation is supposed to receive, clearly states that the probationer has the choice of who he or she wants to perform the polygraph examination.

Since November 8, 2007, Fenian has only performed three polygraph examinations for sex offenders on probation or deferred adjudication. One was a Tarrant County probationer and the other two were probationers from Dallas County. On or about December 13, 2007, a polygraph examination was scheduled by Doug ______. This polygraph examination was to be performed by Fenian on December 29, 2007. On Friday, December 28, 2007, Doug ______ called Fenian and canceled the appointment. When Fenian asked Doug ______ why he cancelled the appointment, Fenian was told that Deborah Moore, Doug ______'s therapist told him that he had to have a polygraph examination performed by Wood or Behavioral as they were the only two polygraph examiners that she allowed her patient's [sic] to use. If Doug ______ did not have his polygraph examination performed by Wood or Behavioral, then Ms. Moore would drop him as a client.

On or about December 28, 2007 a message was left with Ms. Moore's office, which was not returned until January 3, 2008. Ms. Moore admitted that she instructed her patient's [sic] to go to Wood or Behavioral as they were the only two names on her list. She stated that she was not familiar with Fenian and needed to see examples of the types of tests that he ran before she would do business with Fenian.

On or about January 3, 2008, an email was sent to David Kilpatrick, chairperson of the Community Resources Review Committee ("CRRC") with Tarrant County Community Supervision and Corrections Department. He responded that "Yes, the P gets to choose, and both [sic] the treatment provider nor the officer can insist on one over another, period." See Attached Exhibit B.

On or about January 3, 2008, a cease and desist letter was mailed to Deborah Moore, which was received on or about January 4, 2008. See Attached Exhibit C. There was no response to that letter.

On or about January 3, 2008, there was further clarification with David Kilpatrick, wherein he state that "The rule dealing with this in the MOU basically states that one provider (of any kind) cannot refer a probationer to another provider (of any kind) unless this is approved by the officer beforehand." See Attached Exhibit D and Attached Exhibit E.

Prior to the opening of Fenian, Joseph Lawrence McCarthy performed approximately five polygraph examinations per day with Dalhousie Polygraph Services in Richardson, Texas. There are only sixteen polygraph examiners in the Metroplex, including Mr. McCarthy, who are certified to perform polygraph examinations on sex offenders under the Joint Polygraph Committee on Offender Testing ("JPCOT"). With several hundred sex offenders in the Metroplex, it is inconceivable that Fenian would only have one Tarrant County probationer in two months. Meanwhile, Behavioral and Wood are booked solid for sex offender polygraph examinations over a month in advance. This is because the sex offender therapists and probation officers of CSCD in Tarrant County, Texas are diverting business away from Fenian in clear violation of various state and federal laws.
« Last Edit: Mar 23rd, 2008 at 5:25pm by George W. Maschke »  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #1 - Mar 23rd, 2008 at 2:53pm
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George

While I often disagree with your positions, I grudgingly give the devil his due.  You maintain the most informative polygraph related site on the internet.  Hands down, slam dunk, bar none.

You have my respect, if not my agreement.
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #2 - Mar 23rd, 2008 at 5:17pm
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Not all examiners are created equal. This is no conspiracy---IMO---it's a matter where a provider is very happy with their current list of providers---and there is a shorthand and a mutual respect amongst the parties. There are always pools of providers within any municipal system, and you will find that the referrals are not typically handed out willy nilly. Providers---including polygraph examiners----are required to show their worth. This system, also known as a meritocracy, is how things work in any serious business. One cannot just get out of polygraph school, and expect a windfall of highly critical work to be bestowed on them, simply because they have a green light from license boards to practice. It took me 2 years before any provider would let me run even one test on their clients. I was very incredulous at the time. I now know why providers are so hesitant to allow just anyone test their clients. I wasn't ready, and I suspect the plantiff in this suit isn't quite ready yet either. I dunno.
I realize such a system is tough. How do you gain experience and wisdom in a practice, when the status quo are so skittish to hand over potentially dangerous criminals to you based on a provider number? You sweep the floors at the big boy providers, make them coffee, and prove your worth one solitary test at a time. You don't sue because you feel entitled to a caseload. If you don't get the numbers of clients, and the role as valuable team member, you go to a county where there is a better need. A city such as Dallas (and Chicago too) is a place where you can't swing a dead cat around without hitting a polygraph examiner needing a caseloadand consequently, it is a tough place for an upstart. 
This is no conspiracy. This is meritocracy.
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #3 - Mar 24th, 2008 at 12:44pm
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Eric,

If the facts set forth in the plaintiff's petition are indeed facts, then treatment providers have no legal basis for dictating to which polygraph operators sex offenders under their supervision go. I think a prima facie case has been made that the arrangement between Deborah Moore on the one hand, and Richard Wood & Associates and Behavioral Measures & Forensic Services Southwest, Inc. on the other, was improper, if not illegal. Of course, it is possible that there are other relevant facts of which we remain unaware, but I don't think the allegations in this lawsuit should be dismissed with a wave of the hand. Certainly not by anyone who professes to be "dedicated to truth" (American Polygraph Association motto).
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #4 - Mar 24th, 2008 at 1:40pm
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When an examiner runs a pcsot test for a containment team, and for whatever reason the team is disatisfied with the product (report) or maybe a lack of returned phone calls, lack of pretest consultation (call to therapist for team concerns) or any number of work result that is sub par, the treatment provider and/or probation team will ask (see insist) that that examiner not get so much work. The problem with that is proper channels either are not followed, or simply do not exist to file a complaint against an examiner within those municipalities that can put a hold on referals to the lackluster examiner (see chart roller.) This work is much like civil engineering re bridge building. Some "approved" contractors are better at designing and constructing bridges than other firms. This doesn;t suggest that the former firm CAN NOT complete a bridge, it is just that the system as a whole prefer a better product-----and despite the fact that there is a prima facie case-----don't discount that when it comes to helping to protect kids, the judge will not necessarily rule that referrals are like mere schoolhouse window washing contracts---to be divided amongst anyone with a squeegy. I do believe that the plaintiff deserves some referrals if he has not been able to show worth beyond a provider card. Expect a change in policy, and perhaps a fine to the defendants. The judge will find out that not all examiners are created equally IMO.
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #5 - Mar 24th, 2008 at 5:12pm
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EJohnson wrote on Mar 24th, 2008 at 1:40pm:
When an examiner runs a pcsot test for a containment team, and for whatever reason the team is disatisfied with the product (report) or maybe a lack of returned phone calls, lack of pretest consultation (call to therapist for team concerns) or any number of work result that is sub par, the treatment provider and/or probation team will ask (see insist) that that examiner not get so much work. The problem with that is proper channels either are not followed, or simply do not exist to file a complaint against an examiner within those municipalities that can put a hold on referals to the lackluster examiner (see chart roller.) This work is much like civil engineering re bridge building. Some "approved" contractors are better at designing and constructing bridges than other firms. This doesn;t suggest that the former firm CAN NOT complete a bridge, it is just that the system as a whole prefer a better product-----and despite the fact that there is a prima facie case-----don't discount that when it comes to helping to protect kids, the judge will not necessarily rule that referrals are like mere schoolhouse window washing contracts---to be divided amongst anyone with a squeegy. I do believe that the plaintiff deserves some referrals if he has not been able to show worth beyond a provider card. Expect a change in policy, and perhaps a fine to the defendants. The judge will find out that not all examiners are created equally IMO.



When I look at the exhibits, it seems the examiner has a point. Looks like he was told one thing and experienced another.

Sounds to me that he was under the impression (and rightfully so) that this was a county that he could "prove his worth", and when he found out he was sold a load of crap he took a stand. 

Looking at the petition, I see this is not someone fresh out of school with a few years under his belt. From what I am reading, this man is no unknown or upstart base on who he has tested for in the past. 

Tarrant County is known for being a "Closed Market" and it seems that this guy is the only one with balls enough to stand up for himself. He's not the only examiner in the area to see the good ole boyism in the market. But, he is the only one to stand up and point it out. 

All he has to do is get a few therapists and examiners on his side and game over. From what I see on another discussion in this board, one of the defendants have more to worry about than this action. Wow!

One question I have to ask; if most of the offenders are going to one or two providers, how long are they waiting to take polygraphs? I ask this because if an examiner can only do 5 tests per day, then that is 25 slots per week per examiner. Most polygraph firms do law-enforcement/fire fighter pre-employment, attorney polygraphs, EEPA, and infidelity. If one were to play the numbers game, it's easy to see that there is more than likely as waiting period that may be unacceptable to the general public in regards to these potentially dangerous criminals having more time to possibly re-offend.

Sounds to me like the examiners that are so concerned for the community safety care more for their wallets. This also brings up the point of possible kickbacks. 

Sounds like this action will answer a lot of questions. I know I’ll be watching.
  
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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #6 - Mar 24th, 2008 at 7:35pm
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wolfie said;
Quote:
Sounds to me that he was under the impression (and rightfully so) that this was a county that he could "prove his worth", and when he found out he was sold a load of crap he took a stand. 

Looking at the petition, I see this is not someone fresh out of school with a few years under his belt. From what I am reading, this man is no unknown or upstart base on who he has tested for in the past. 

Tarrant County is known for being a "Closed Market" and it seems that this guy is the only one with balls enough to stand up for himself. He's not the only examiner in the area to see the good ole boyism in the market. But, he is the only one to stand up and point it out. 

All he has to do is get a few therapists and examiners on his side and game over. From what I see on another discussion in this board, one of the defendants have more to worry about than this action. Wow!




Hey wolfie,
sounds like you have a dog in that fight. Your timing is impeccable.
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #7 - Mar 24th, 2008 at 10:28pm
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EJohnson wrote on Mar 24th, 2008 at 7:35pm:

wolfie said;
Quote:
Sounds to me that he was under the impression (and rightfully so) that this was a county that he could "prove his worth", and when he found out he was sold a load of crap he took a stand. 

Looking at the petition, I see this is not someone fresh out of school with a few years under his belt. From what I am reading, this man is no unknown or upstart base on who he has tested for in the past. 

Tarrant County is known for being a "Closed Market" and it seems that this guy is the only one with balls enough to stand up for himself. He's not the only examiner in the area to see the good ole boyism in the market. But, he is the only one to stand up and point it out. 

All he has to do is get a few therapists and examiners on his side and game over. From what I see on another discussion in this board, one of the defendants have more to worry about than this action. Wow!




Hey wolfie,
sounds like you have a dog in that fight. Your timing is impeccable.


No personal dog in the fight, and timing has nothing to do with it. I read the petition and feel, in my opinion that it does have merit. 

I think everyone has a dog in this fight that is in favor of a free market economy. I can understand why therapists like you would like to control as many aspects of you offenders lives as possible. But the use of only a few polygraph examiners creates an environment of the polygraph examiner giving you the opinion you want rather than the opinion based on the chart tracings. No one likes giving customers bad news, especially customers that send thousands of dollars a year in business. Don't say that people don't think like this, you know they do.

Any examiner that has taken the JPCOT course and passed is qualified to run these tests in the state of Texas. Debra Moore should know better because she helped write the guidelines as well as others listed as defendants. A man saw an injustice, stood up for himself, and may have uncovered a bit more that expected.

As persons in the "containment approach", we should avoid even the appearance of impropriety. The "containment approach", that is a joke too. Probation never co-operates with the polygraph examiner. The examiner is lucky to get probation on the phone or get documents faxed from probation. In many cases the therapists arrogance and ego make some things darn near impassable to get anything done. In almost every case both the therapists and the probation offices think they themselves are polygraph examiners, advising and educating offenders on something which they themselves have little to no training in. Which is, by the way, unethical. 
The examiners and therapists brought this on themselves. Looks to me that they have kicked this sleeping dragon and now they are running scared. The way it looks, it may be 1988 all over again.
  
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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #8 - Mar 25th, 2008 at 2:44pm
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Quote:
I can understand why therapists like you would like to control as many aspects of you offenders lives as possible.


I am not a therapist.

Edited:
But the use of only a few polygraph examiners creates an environment of the polygraph examiner giving you the opinion you want rather than the opinion based on the chart tracings


What? Rubbish. Using too few examiners has disadvantages, but claiming such conspiracy is a stretch. That kind of thinking will get you a nickname.

Quote:
No one likes giving customers bad news, especially customers that send thousands of dollars a year in business. Don't say that people don't think like this, you know they do.


You're in the business of giving bad news brother. If the offender fails a test--bad news. If he passes his test, than he likely does so by giving admissions, which often times are bad news. The test costs money---a rare commodity for probationers who are "fringed" by society----bad news. Inform your officers and therapists that polygraph isn't 100% accurate and shouldn't be the end all risk assessment----bad news, no panaceas yet exist. Polygraph testing does not pay very well---contrary to those around here that think otherwise----bad news. 
We are in the business of giving bad news in pcsot. It's a caustic line of work.

Quote:
Any examiner that has taken the JPCOT course and passed is qualified to run these tests in the state of Texas.


Please. Students are so green out of polygraph school --yes, even pcsot--- that without good sheparding and internship, most are dangerous.

Quote:
The "containment approach", that is a joke too. Probation never co-operates with the polygraph examiner. The examiner is lucky to get probation on the phone or get documents faxed from probation. In many cases the therapists arrogance and ego make some things darn near impassable to get anything done. In almost every case both the therapists and the probation offices think they themselves are polygraph examiners, advising and educating offenders on something which they themselves have little to no training in. Which is, by the way, unethical. 


Readers, unfortunately The wolf is experiencing a rather uncharacteristic discombobulated containment system. He wrote rather broadly that such maladies are the norm across the board. Nonsense. In many states containment team members have each others' home and cell numbers for emergencies---and thanks to the web---even web conferances. Some containment modalities in some states are rather new, clumsy, and suffering from a lack of protocol, while many others are tight, respecting each others' contributions, and have a well placed knowledge of their own personal limitations regarding the duties and abilities of the task ahead. It is this paragraph Wolf wrote that compelled me to answer more than any other I have seen in recent days.

Quote:
Looks to me that they have kicked this sleeping dragon and now they are running scared. The way it looks, it may be 1988 all over again.


You sound as if you have no business experience whatsoever. Lawsuits in large metro area contractors abound. Regardless of who is right or wrong re the suit, such complaints are albeit, no laughing matter, but also very standard. Ever work in the road construction contractor business or civil engineering biz wolf? Sheesh, those guys sue each other every month with complaints and contract tuning. You need to get out more.

EPPA has nothing to do with a couple'a firms fighting over 80-100k of business. After taxes and expenses, that is pretty small coin.

This is not a new battle---see the numerous battles over referrals in the court ordered alcoholic treatment business----or even tow truck contracts.
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #9 - Apr 20th, 2008 at 12:27am
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Yes, this is Joe McCarthy.  I have been watching this discussion board ever since the suit became “public”.

I looked over the discussions and considered every point.  Some are good and others are just plain piss poor. While thinking, pontificating, and doing deep thought brain thingies in my mind on the events for the past few months, I realized that the answer was right in front of me.  POLYGRAPH.

This is a case about polygraph examiners and therapists that believe in polygraph. Probation relies on polygraph as a tool it to put people back in prison.  Let’s note that some of the people belong there.  Clearly, they do not have a problem using polygraph as a tool in their arsenal. So here is what I was thinking.

I said to myself “Self, what if everyone stipulated to a polygraph exam?  Everyone, the examiners, the therapists, even the two probation officials.  Have an INDEPENDENT polygraph examiner come in and polygraph each and every person on the front captioning of the lawsuit except for the lawyers.  We don’t want to blow up the instrument.  I already caught them in a few lies.  I will let them guess which ones.

The tests will consist of relevant questions agreed upon by all examiners, therapists, probation officials, and their lawyers.  All parties will be identified by number chosen by lot.  A representative of the Court and the INDEPENDENT examiner will be the only two people who will know the true identity of each number. 

The test format will have to be an R&I because if there is anyone that could get around a control question test, it’s a polygraph examiner.  Because therapists and the probation officials can be coached, they will be given an R&I as well.  After the charts are collected, they will be scored numerically through ROSS and globally by the administrating examiner.  Copies will be made of all charts with the identifying information redacted from them and new identifier will be put on the charts to ensure that this next step will be one hundred fair.  The only person who will know the true identity of each chart will be the Judge and his representative.  All the newly identified charts will be given to each polygraph examiner involved in this action and one additional examiner who is not involved with this action, who is not the original examiner, and who is no one that the original examiner may know. 

The charts will be blind quality controlled by each polygraph examiner through ROSS and globally.  The score sheet will then be attached to each chart with a notarized affidavit.  For all you guys that do not know what ROSS is, I will be more than happy to educate you.  The scored charts along with the affidavit and score sheets will be sent back to the court where a court officer will then properly identify each chart.  The identities of each chart will then be released to the lawyers and their clients.   Inconclusives will count as a DI and obvious miscoring will leave the examiner open to perjury, contempt of court, and any sanction available.

If they are telling the truth that there is no intentional exclusive agreements to manipulate the market, offering and/or receiving of kickbacks, favoritism, creating monopolies, or intentionally pushing of anyone out of this market by unlawful restriction of trade, then they should not have a problem with taking the exam that is relied on so heavily by all the parties involved.  I know that I have no problem with it because I have done nothing in bad faith.

It should be interesting to see how many step forward. 

The reason why I am posting this on Antipolygraph.org is because I believe that this will be the only forum in which I can be heard.  On top of that, I can rest assured that the responses will be watched very closely by all. 

I will try to keep the people on this board updated on the responses received or the sounds of deafening silence that I hear.  I will also be setting up a blog so regular updates can be posted along with all documents that are of public record.   

Maybe this will put the issue to rest.  Maybe it will aggravate the issue.  No matter what it does, it will cause discussion and provoke thought about the polygraph industry and if the people in the industry are truly “dedicated to the truth”.

I have thrown down the gauntlet.  I have called you all out.  I will be counting the day for a response and will post the response of each person either here or on the blog.

The fax is on people.

Now in the eloquent words of Mick Foley

“Have a nice day! Smiley"

Joe McCarthy
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #10 - Apr 20th, 2008 at 3:54am
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Quote:
This is a case about polygraph examiners and therapists that believe in polygraph.


Mr. polygrapher,

Thanks for clarifying the fact that the polygraph mainly boils down to belief, rather than science.

Who are these "therapists"?   Are they licensed psychologists/psychiatrists?

TC

  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #11 - Apr 20th, 2008 at 12:45pm
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Joe:  Two comments/questions regarding your comments quoted below:

First one, are you admitting here on anti-polygraph.org" that a polygraph test can be manipulated?   

Secondly, I predict "0" polygraph examiners will take you up on your offer.  Afterall, they know the "truth."



Joe McCarthy wrote on Apr 20th, 2008 at 12:27am:


The test format will have to be an R&I because if there is anyone that could get around a control question test, it’s a polygraph examiner. 

It should be interesting to see how many step forward.

  

"Although the degree of reliability of polygraph evidence may depend upon a variety of identifiable factors, there is simply no way to know in a particular case whether a polygraph examiner's Conclusion is accurate, because certain doubts and uncertainties plague even the best polygraph exams."  (Justice Clarence Thomas writing in United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413, 1998.)
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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #12 - Apr 21st, 2008 at 5:58pm
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T.M. Cullen wrote on Apr 20th, 2008 at 3:54am:
Quote:
This is a case about polygraph examiners and therapists that believe in polygraph.


Mr. polygrapher,

Thanks for clarifying the fact that the polygraph mainly boils down to belief, rather than science.

Who are these "therapists"?   Are they licensed psychologists/psychiatrists?

TC



Look at the defense list. The answer to your question is just that simple. I'm not trying to be rude, I just don't want to waste time listing names alredy listed.
  

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Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #13 - Apr 21st, 2008 at 6:24pm
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What "defense list"?  Can you please post a link with this list?

TC
  

"There is no direct and unequivocal connection between lying and these physiological states of arousal...(referring to polygraph)."

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Make-believe science yields
make-believe security.

Posts: 6232
Joined: Sep 29th, 2000
Re: Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing
Reply #14 - Apr 21st, 2008 at 6:40pm
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TC,

Look at the documents linked in the first post in this message thread.
  

George W. Maschke
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Unlawful Referral Scheme Alleged in Dallas-Fort Worth Metroplex Post-Conviction Sex Offender Polygraph Testing

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