posted 07-15-2009 10:08 AM         

11:55 PM CDT on Monday, July 13, 2009
By TANYA EISERER / The Dallas Morning News
teiserer@dallasnews.com

Scarlett Haley says Dallas police officers searched her home without a warrant, found her boyfriend's drugs and then threatened to arrest her and take away her children if she didn't sign a document saying she consented to the search.

But the cases against Haley's boyfriend fell apart in large part because the judge – in an virtually unprecedented courtroom move – acknowledged that he based his decision to throw out evidence in the case on the results of a polygraph exam that Haley passed. The judge's ruling led prosecutors on Monday to seek the dismissal of four felony drug cases against the boyfriend, James Aderinboye.

"Ms. Haley's testimony just sounded truthful," senior District Judge Pat McDowell said at the conclusion of a hearing last week. "It's very significant to the court that she took it and passed. ... I do find that the consent was not freely and voluntarily given."

The results of a polygraph examination are generally not admissible in court. In this instance, however, neither the defense attorneys nor Dallas County prosecutors objected to sworn testimony about Haley's test, opening the door to its admissibility.

By accepting that testimony, it means the judge took the word of Haley, an exotic dancer, over that of three seasoned police officers who were once part of a specialized police unit whose work is the subject of an ongoing review by prosecutors.

"I don't know of any case that I have decided based on the results of a polygraph because it usually doesn't get into evidence," McDowell said Monday in a telephone interview, adding that he found the testimony helpful in making his evidentiary ruling.

First Assistant District Attorney Terri Moore said typically prosecutors object to the admission of polygraph evidence, but she added: "A prosecutor's job is to see that justice is done, and if he believed the polygraph, which is otherwise inadmissible, he may have just decided to let the judge consider it."

Haley is the second of two witnesses to pass polygraph exams requested by the Dallas County District Attorney's Office involving the squad's cases.

On Jan. 7, 2008, authorities were watching Haley's White Rock-area home after receiving a complaint about suspected drug activity there, according to an official police report.

According to the report, Sgt. Randy Sundquist and Senior Cpls. Jerry Dodd and David Durica went to the home. Durica talked to Haley, who denied there were drugs in the home. She then signed a form consenting to a search of the home. Dodd found crack cocaine, powder cocaine, methamphetamine and "ecstasy" during the search, as well as two guns.

Aderinboye then told the officers that the drugs belonged solely to him, and subsequently gave a written statement to that effect, the report states.

Haley, 22, gave a different account of the events at Thursday's hearing to suppress evidence against Aderinboye. She said she was asleep when her mother woke her up, telling her that police were at the door. An officer immediately barged into her bedroom, and police were all over her house, she testified. She said officers told her had they had found drugs and that she had to sign the consent form or be arrested.

"They told me that my children would be taken away from me," Haley testified. "They told me they had the number for CPS on speed dial."

She testified that she subsequently passed a polygraph exam with flying colors, a point that prosecutors did not dispute.

Durica, Sundquist and Dodd, now a vice detective, all denied any wrongdoing or making threats to the couple.

Sundquist, the squad's former supervisor, was moved off the streets this spring after the DA's office released a letter stating that he shouldn't be trusted to testify in court. Durica and another officer were recently transferred back to patrol duties.

The squad, which once numbered about seven officers, is now largely dismantled. The unit came under scrutiny earlier this year after an arrest put a man behind bars for 10 months on what prosecutors say were false charges. A videotape later showed that the accused man was not carrying a bag that contained drugs and a gun as police had alleged.

In March, McDowell threw out the evidence gathered in another search conducted by the squad, finding that the consent for the search had not been voluntary. Prosecutors subsequently dismissed gun and drug charges against Troy Compton, a felon.

In that case, Compton's wife passed a polygraph in which she said officers threatened to take her to jail and to hand over the couple's then-5-year-old son to Child Protective Services unless she signed a form consenting to the search of their Cedar Hill home. The polygraph exam did not come up during that court hearing.

posted 07-15-2009 11:39 PM            

Without specific data, it's my impression that police misconduct has increased significantly at least in my forty years.

Every major department and federal agency has had to bear the embarrassment of an exposed lack of integrity by its' members.

Some of the acts are simply unbelievable. In my area "special units" have actually engaged in burglary, kidnapping, robbery, drug sales, and murder.

Its no wonder that when there is a serious doubt about an officer's testimony or conduct, public officials (DA, Judges, the public) should demand that the officer involved submit to a polygraph examination. This in no way is a substitute for legwork and all investigative techniques to get to the truth.

Yet its the preponderance of the evidence that should give us confidence in our justice system.

Now I'll step down off my soapbox.

I really think these kids (showing my age), were under Dept. pressure for results and were too lazy to expend the effort to develop proper P.C.

I also think that learning about polygraph examinations should be required at all law schools. This would give the eventual judges a working knowledge on which to weigh their decisions.

posted 07-16-2009 11:53 AM            

If you are correct (let's assume you are for now), then I will suggest that what you are observing is primarily a leadership issue.

Remember the old adage that power corrupts, and absolute power... you get the picture.

The thing that prevents that is accountability, and a commitment to ethical principles.

Sure there may be a problem individual or two here or there. But if problems are more widespread, or becoming a trend, then there is a different issue occurring.

So, I suspect that the leadership somewhere began to emphasize accountability for results more than accountability for ethics, professionalism, and professional conduct. Of course, there is probably political pressure somewhere, regarding the need for results. Also, of course, every decision is a political decision, and politics is ultimately about economics.

The way to avoid all of this, in any organization, is to build organizational systems and principles that are thoughtful about the potential ethical problems that likely to occur in each organizational and economic context.

.02

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

posted 07-16-2009 04:28 PM         

I did not post the article because of a few bad apple cops. I was more interested in your thoughts as to how the judge was able to bring in the polygraph results. I would also assume that this was over the prosecution's objections.

posted 07-16-2009 06:47 PM            

The article seems to suggest that there were no objections. The judge seems to indicate that he allowed the polygraph to play a role in the matrix of evidence or information supporting his decision simply because it was helpful to do so.

The article suggests that the examinee was allowed to testify about her own polygraph results, and states there was no objection when she offered testimony that she passed "with flying colors." I have to think that no polygraph examiner from a credible training program has ever used the words "flying colors" in writing or in court.

Why didn't they have the examiner testify on the results?

Perhaps they felt they had a weak case. The prosecutor folded once the evidence was thrown out. Perhaps they felt it was helpful to have some basis to do that, besides the fact that the case was weak or they are all concerned about the officers involved. Without some evidence on which to base they may have felt they might be at risk for being accused of making emotionally driven decisions, or of not properly attending to their systemic role.

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)

posted 07-16-2009 07:16 PM            

Philosophically, I (not that anyone cares) feel very uneasy about such admissability. I find cheerleaders for polygraph evidence acceptance for final rulings to be spooky. Spooky! This is the kind of stuff happening in South Africa (remember Cliff,our insane but cunning foe?)---SA being a piss poor model for criminal justice if ever there was one. The field of polygraph can easily be accused of stuffing a sock down our collective pants for effect---however, if we go so far as to stuff a cantelope down there, we're eventually gonna be asked to display such outrageous gifts. We simply aren't (scientifically speaking) at the point where we are packing that much hardware.

posted 07-16-2009 09:09 PM            

As a sitting judge, and in the interest of truth, justice and the American way, (leaping tall buildings at a single bound), I would consider the following;

We all know that the general rule enunciated in Frye v. United States, 293 F. 1013 (D.C. Circa 1923) is that the party seeking to admit the scientific evidence has the burden of satisfying the "Frye" test, by proving the reliability of the underlying scientific theory upon which the evidence is based and the acceptance of it in the appropriate scientific field.

As I now understand your question, It appears that both Prosecutor and Defense stipulated to allowing the judge to consider the results of the polygraph examination.

This , of course is not without precedence. Even without a stipulation a judge could apply the "De Novo Standard".

A judge could consider ;

Donaldson v Central Illinois Public Service Co. (199 Ill. 2d 63, 76-77 (2002)

The Illinois Supreme Court adopted a De Novo Review for Frye Rulings and upheld admissibility of risk assessment evidence for sex offenders.

The court held that "general acceptance" does not require a "universal acceptance". It is sufficient that the underlying method used to generate the expert's opinion is reasonably relied upon by experts in the field.

The court's decision was that the decision as to whether an expert scientific witness is qualified to testify in a subject area, remains in the sound discretion of the trial court.

People v Miller , 173 Ill 2d 167, 187 (1996)

The court held that under the Frye standard, the trial court is not asked to determine the validity of a particular scientific technique. Rather the court's responsibility is to determine the existence, or non-existence, of general consensus in the relevant scientific community regarding the reliability of that technique.
"Accordingly", because the focus is primarily on counting the scientist's votes, rather than verifying the soundness of the scientific conclusion, there will not
be the concerns about witness credibility, and hersay normally associated with citations to emperical or scientific studies whose authors cannot be observed or cross-examined.

The court also made reference to other state supreme courts that have applied the De Novo standard when reviewing Frye rulings; Arizona, Florida, Kansas, Minnesota, New Jersey, and Washington.

It would seem reasonable that a judge would consider all the advancements in the polygraph from 1923 to 2009.

I do submit that an examiner's ability to articulate the methedology before the court will play a significant role in the acceptance of the examiner's testimony.Explaining what we do so that the average person can understand it, and believe its' validity as forensic evidence.

Most APA accredited schools discuss the possibility of court testimony, yet because few of us actually ever have to go on the witness stand, perhaps APA could prevail upon their legal counsel to work up a general guide with examples of an examiner's testimony.

I'm still ticked off about the integrity thing. Today a report came across my desk about a Federal Probation Officer assigned to the Rio Grande City office, Texas charged with Drug Trafficking and Bribery.

This one was running computer background checks on people that were chosen by a Mexican drug cartel to work as truck drivers to haul their drugs into the United States.

This scumbag informed the cartel that two of the prospective drivers were actually federal agents undercover, and one of his supervisees was an FBI Informant.

This power struggle for rule of law in Mexico is spilling over across our border, and the integrity of our officers will determine if we can stem the tide. (nuff said).

[This message has been edited by BrunswickT (edited 07-16-2009).]

posted 07-16-2009 10:04 PM            

quote:

---

Philosophically, I (not that anyone cares) feel very uneasy about such admissability. I find cheerleaders for polygraph evidence acceptance for final rulings to be spooky. Spooky! This is the kind of stuff happening in South Africa (remember Cliff,our insane but cunning foe?)---SA being a piss poor model for criminal justice if ever there was one. The field of polygraph can easily be accused of stuffing a sock down our collective pants for effect---however, if we go so far as to stuff a cantelope down there, we're eventually gonna be asked to display such outrageous gifts. We simply aren't (scientifically speaking) at the point where we are packing that much hardware.

---

Interesting. I like the sock-in-pants analogy.

Unless someone is pointing to real data, and credible analysis, what they really are is just a 'nuther kind of cheerleader. Data and science are generalizable and learn-able. It is inevitable then that the sense of trust should not be limited

It is not court decisions that advance forensic science, any more than the Wizard-of-Oz could actually give the scarecrow a brain. Forensic science is advance by scientific study.

BTW, it does not appear they stipulated (formally to the admission of the polygraph). It appears they simply did not object when Haley testified herself that she passed with flying colors. Her word on that is really worth nothing more than a frothy emotional statement that they should believe her. Its just drama. Its no more scientific than some charismatic expert talking about his years of experience without any study data to back all the expertizing. But the court accepted the drama as somehow important and useful - probably because they did really want to procede with the case, but didn't want to look like they gave up a walk without good reason.

So I wonder if you are describing a sense of general Texas-trust between the bench and the polygraph profession, or is it a kind of trust between the bench and a small few individuals. This is important, because its the difference between politics and science.

If the sense of trust and respect is towards the science, then it will inevitably (we want it to) extend well beyond a few individuals with polished presentations and excellent political skills (which are, of course, just a 'nuther kind of cheerleader). If not, if the sense of trust is with some individuals, and not with the broader science of polygraph testing, including any properly credentialled expert, then its just fancy marketing - and won't do as much to advance the state of the forensic science of polygraph testing as a whole.

For example: if the goals of the polygraph profession or the APA have primarily to do with one particular business (that's "if"), then we don't want a lot of competition and we don't really want a fair game. We'd ideally want to own the ball-field, rule-book, player's roster, and referees. As long as we're on the winning side we're happy and our goals are met. The downside is that the lack of competition fails to motivate real advances in the state of the art/science/game/whatever-it-is.

If the goals of the polygraph profession and the APA have more to do with the advancement of the science, then we want competition, because that prompts advances, development, and efficiency.

What we wouldn't want is to load a huge volume of authority on one individual or one particular authoritive role - especially if that individual, or the individual in that particular role, were a competitor in the active market. To do so is to set the stage for a highly politicized profession that will eventually focus more effort and energy on maintaining certain political and market advantages than pursuing advances that benefit the state of the profession or science as a whole.

.02

r

------------------
"Gentlemen, you can't fight in here. This is the war room."
--(Stanley Kubrick/Peter Sellers - Dr. Strangelove, 1964)