NEW YORK TIMES

April 3, 2008
The DNA Age
Lawyers Fight DNA Samples Gained on Sly 
By AMY HARMON
The two Sacramento sheriff detectives tailed their suspect, Rolando Gallego, at a distance. They did not have a court order to compel him to give a DNA sample, but their assignment was to get one anyway — without his knowledge. 
Recently, the sheriff's cold case unit had extracted a DNA profile from blood on a towel found 15 years earlier at the scene of the murder of Mr. Gallego's aunt. If his DNA matched, they believed they would finally be able to close the case.
On that spring day in 2006, the detectives watched as Mr. Gallego lit a cigarette, smoked it and threw away the butt. That was all they needed. 
The practice, known among law enforcement officials as "surreptitious sampling," is growing in popularity even as defense lawyers and civil liberties advocates argue that it violates a constitutional right to privacy. Mr. Gallego's trial on murder charges, scheduled for next month, is the latest of several in which the defense argues that the police circumvented the Fourth Amendment protection against unreasonable search and seizure. . . .

. . . . They could have asked a judge for a search warrant to compel him to give them a DNA swab, but there was no guarantee that the judge would agree. Also, Mr. Gallego had passed a lie detector test in which he denied any involvement in the murder, and had they asked him to volunteer a sample, he might have refused.

Sackett,

The DNA did match, charges were proffered, and the case is slated to go to trial next month. See the attached PDF of the full article, which includes more detail.

George W. Maschke wrote on Apr 3^rd, 2008 at 7:54pm:



Sakett, You must be really getting full after eating all that crow!!!
WOW he passed a Poly but DNA matched the evidence at the scene!!
See you would have him free since he passed your silly test.

"n.p.c.",

Cute!  When you made the original post, did you know the results of the DNA test and the charges preferred?  No diversion from that sad fact, but what about the 4,000 other polygraph examinations that were properly administered that day?  No, let's not bring that up...

I concede that examiners make mistakes.  No-one here does, though.

OK, chalk one up for you guys.  

George, think you get the test report, charts, test questions, etc?  

Boys and Girls, enough gloating.  Everyone, go back to defending the poor false positives and NOW, attacking the false negatives.

Sackett

sackett wrote on Apr 4^th, 2008 at 2:25am:


Let's see... I quoted the material verbatim from the whole story, so as not to make the post overly lengthy.  If I could copy and paste the material I did, one might realistically presume that I in fact read the whole story.  Critical thinking would not be a strong point of yours, would it?

BTW, I didn't go looking for this story, it came to me over e-mail on my law school alumini Yahoo group.  I found the information about the polygraph interesting so I posted the story.  That's all.

Regarding polygraphers making mistakes, I personally doubt the polygrapher made a mistake, but instead relied upon a flawed process to form an opinion as to culpability for a murder.  It is a good thing the detectives didn't trust the polygraph results, and continued looking at the suspect as good for the murder.

"n.p.c.",

so you did; I missed it.  Please (try to) understand, I actually have a job that keeps me very busy and sometimes I do not read as detailed as I could.  This is often due to time restrictions.   Remember, this board is a secondary interest, not my priority, as it is with some of you.  

As for Gallego's test, perhaps the test was flawed.  Perhaps it was a well run examination and Gallego was able to rationalize the questions.  Maybe, Gallego wasn't asked the right questions.  Maybe, he didn't do it.  

Also, remember, DNA represents presence, not guilt or innocence.  Or maybe, just maybe, Gallego used the techniques outlined in TLBTLD to "beat" the examiner?!  It suprises me that no-one has made that particular claim.  You see, that is exactly what this board is all about, now isn't it?  Helping criminals, sex offenders and applicants "beat" the process...

Speaking of culpability; does that mean if a murderer does in fact use the information on this board to "beat" the test, that this board is then complicit in aiding and abetting the felon?  Just a thought...

Sackett

sackett wrote on Apr 4^th, 2008 at 2:25am:


If there were 4,000 other polygraph exams conducted that day, what makes you think they were all "properly adminstered"?

How can you possibly have any idea in what percentage of those tests a truthful person was deemed deceptive, and/or a deceptive person was deemed truthful?  Do you truly believe that out of 4,000 tests there wasn't a single false positive or false negative?  

It seems that if someone fails a polygraph and claims they were telling the truth, their feedback is ignored by the polygraph industry because, clearly, if they were telling the truth they would have passed.  It is abundantly clear that personal accounts from people who say they told the truth and failed are given no weight at all by the pro-polygraph crowd.

If a person lies and gets away with it, their feedback would itself be deceptive, because they certainly aren't going to turn to the examiner who just "passed" them and admit they lied during their test.  I'm sure every polygraph examiner is fully aware that there is virtually no chance of something like that ever happening.

So, exactly what feedback is the polygraph industry receiving that enables you to confidently assume that the 4,000 other polygraph tests conducted that day were properly administered?

Sergeant1107 wrote on Apr 4^th, 2008 at 7:41am:


What makes you think those tests administered that day were not done properly?  Simple and repetitive whining on this board does not make what you support true in every circumstance.  

Mistakes are made.  Even in DNA, drug, polygraph testing, etc.  Nothing is absolute when humans are involved.  But to suggest that everything is all "a-whack" because you think so, or because of one recent example, doesn't hold water.

Sackett