http://www.dallasnews.com/sharedcontent/APStories/stories/D9507E001.html

Prosecutors cast doubts on lie detector tests

12/11/2008

By JUAN A. LOZANO  / Associated Press

Prosecutors cast doubt Wednesday on two lie detector tests that a federal judge indicted on sexual abuse charges is trying to get admitted into his trial, saying they were riddled with errors and that the man who performed the polygraphs has himself failed such a test.

But attorneys for U.S. District Judge Samuel Kent argued in a court hearing that the polygraph tests taken in August and September were valid and accurate and their results did not indicate their client was lying when he denied the allegations.

The hearing on whether to admit the polygraph tests was set to resume Thursday.

Kent, 59, was indicted in August on charges he fondled a former case manager and tried to force her into a sexual act. He is facing two counts of abusive sexual contact and one count of attempted aggravated sexual abuse following a U.S. Justice Department investigation into complaints by case manager Cathy McBroom.

His trial is set to begin Jan. 26.

John Swartz, the polygrapher who performed the two lie detector tests, testified he asked Kent questions related to the accusations against him, including whether he had a sexual encounter with Broom against her will and whether he touched her sexual organs without her consent.

Kent answered "no" to all these questions, only answering "yes" when asked if all his physical encounters with McBroom were entirely consensual. Dick DeGuerin, Kent's high-profile criminal defense lawyer, has previously said that everything that happened between Kent and McBroom was consensual. Her attorney has denied this.

"Was there deception ever indicated on these tests?" DeGuerin asked Swartz.

"In my opinion, no," Swartz responded.

During the hearing, DeGuerin said that McBroom has alleged that Kent had an erection during the alleged harassment. But Kent's lawyer made public for the first time that since 1999 the judge has been diagnosed as impotent.

Prosecutor Peter Ainsworth questioned the validity of Swartz's tests. He said an initial report from September that prosecutors received from Swartz was full of mistakes, including listing the wrong questions that were asked during the tests. Ainsworth said he didn't receive a corrected report until late Tuesday evening.

"These are different questions (on the corrected report). Which did you ask? How did you get this wrong?" Ainsworth asked.

Swartz had no explanation for the mistakes.

Ainsworth also criticized Swartz for not having the test results reviewed by an independent party, something that experts in the polygraph field call for.

The prosecutor also revealed during the hearing that Swartz in 2006 failed a lie detector test he took while applying for a job with the FBI. Swartz had denied during the test to using illegal drugs. He said he had forgotten about taking marijuana in his youth.

If convicted of attempted aggravated sexual abuse, Kent could face up to life in prison and a fine of up to $250,000. Each of the two counts of abusive sexual contact carries a sentence of up to two years in prison and a fine of up to $250,000. Kent was the first federal judge in 17 years indicted while still on the bench.

McBroom accused the judge of physical sexual harassment over a four-year period starting in 2003 when he was the only U.S. District Court judge in Galveston, an island beach town 50 miles southeast of Houston.

McBroom has said the alleged harassment culminated in March 2007, when the judge pulled up her blouse and bra and tried to force her to perform oral sex when they were interrupted.

Her accusations were first investigated by the Judicial Council of the 5th U.S. Circuit Court of Appeals. That panel suspended Kent in September 2007 for four months with pay but didn't detail the allegations against him.

The Associated Press does not normally name alleged victims of sexual abuse, but McBroom's attorney and her family have used her name in publicly discussing the case. A gag order has been issued in the case by U.S. District Judge Roger Vinson, a Florida jurist appointed to preside over the trial.

Pending his trial, Kent continues to hear cases at the federal courthouse in Houston, where he was transferred this year as part of his punishment by the judicial council. McBroom was also relocated to Houston after reporting her allegations.

http://www.chron.com/disp/story.mpl/headline/metro/6159728.html

Judge bars Kent from using polygraph results in his trial
By MARY FLOOD Copyright 2008 Houston Chronicle
Dec. 11, 2008, 11:29PM
Houston Chronicle

U.S. District Judge Sam Kent is the first federal judge ever charged with federal sex crimes. His trial is set for early next year.

U.S. District Judge Samuel Kent will not be able to show jurors the polygraph tests he has taken, but the judge in his case left the door open Thursday for Kent to take another lie detector exam.

Kent faces federal charges of sexually abusing an employee. It would be unusual for the judge to allow lie detector evidence in this case.

Kent's polygraph examiner, John Swartz, testified Wednesday that Kent showed no deception when asked about the incidents with his former employee.

But FBI agent and polygraph examiner Blake McConnell testified Thursday that Swartz's tests were flawed. He said the tests were inconclusive or showed deception, but were sloppy and untrustworthy.

"We all recognize that we're in somewhat uncharted waters," said U.S. Senior Judge Roger Vinson of Florida, who is overseeing the case. Though polygraph results rarely are allowed in court, Vinson said the science has improved and a properly conducted polygraph examination could be presented to a jury with the instruction that it is merely a tool. He ruled that there are deficiencies in the Kent polygraphs, though.

Polygraph results are not barred from use as evidence in this federal circuit.

"Most courts decline to admit a polygraph, saying it's not sufficiently reliable," said Adam Gershowitz, a South Texas College of Law professor. "It's surprising, but it's not out of the bounds of reasonableness."

Testimony indicated that the problems with the Kent polygraphs included errors in Swartz's written report, a lack of independent review, and that questions to Kent were not specific and included an agreement that "genitals" would mean any part of the body.

Vinson invited Kent and his lawyer, Dick DeGuerin, to try again with a higher-quality lie detector test. He said the government also could take Kent up on his offer to let the FBI conduct a test.

The government is unlikely to bite. Prosecutor AnnaLou Tirol argued Thursday that polygraphs are too unreliable to be used as evidence, and are best used as an investigative tool only.

Trial set for January

Kent was indicted on charges of abusive sexual contact and attempted aggravated sexual abuse, making him the first federal judge ever charged with federal sex crimes. The maximum penalty is life in prison and a $250,000 fine upon conviction. Trial is scheduled for January.

The indictment alleges that Kent, 59, intentionally touched his former employee, Cathy McBroom, "directly and through clothing" in the groin, breast, inner thigh and buttocks and that he forced her head toward his groin.

Vinson also held a two-hour closed court hearing Thursday on evidence DeGuerin wants to present to the jury about McBroom's sexual past. A federal evidence rule requires that such hearings be closed.

Kent and his lawyer have claimed the relationship was consensual.

mary.flood@chron.com

Polygraph Accuracy Almost a century of research in scientific psychology and physiology provides little basis for the expectation that a polygraph test could have extremely high accuracy. The physiological responses measured by the polygraph are not uniquely related to deception. That is, the responses measured by the polygraph do not all reflect a single underlying process: a variety of psychological and physiological processes, including some that can be consciously controlled, can affect polygraph measures and test results. Moreover, most polygraph testing procedures allow for uncontrolled variation in test administration (e.g., creation of the emotional climate, selecting questions) that can be expected to result in variations in accuracy and that limit the level of accuracy that can be consistently achieved.

Theoretical Basis The theoretical rationale for the polygraph is quite weak, especially in terms of differential fear, arousal, or other emotional states that are triggered in response to relevant or comparison questions. We have not found any serious effort at construct validation of polygraph testing.

Research Progress Research on the polygraph has not progressed over time in the manner of a typical scientific field. It has not accumulated knowledge or strengthened its scientific underpinnings in any significant manner. Polygraph research has proceeded in relative isolation from related fields of basic science and has benefited little from conceptual, theoretical, and technological advances in those fields that are relevant to the psychophysiological detection of deception.

Future Potential The inherent ambiguity of the physiological measures used in the polygraph suggest that further investments in improving polygraph technique and interpretation will bring only modest improvements in accuracy.