The Youngstown Vindicator reports:

Polygraph delayed for rape suspect
Friday, June 22, 2007

If the defendant passes the test, charges will be dropped.

YOUNGSTOWN — If Darryl Adams of Boardman is going to use a polygraph test to prove his innocence to rape charges, he will have to do it another day.

Adams is accused of raping a teen boy in his home between 2002 and 2004.

But he did not take the polygraph test Thursday — when he was scheduled to travel to the Bureau of Criminal Identification and Investigation in Richfield.

Jim Hay, an investigator with the Mahoning County prosecutor’s office, said fellow investigator Paul Andrews went to BCII Thursday, apparently to witness Adams’ polygraph. But Hay was told the test did not occur.

Dawn Krueger, the assistant Mahoning County prosecutor handling the case, and Dennis DiMartino, the defense attorney for Adams, did not return telephone calls Thursday regarding the matter.

What happened

Adams, DiMartino and Krueger reached an agreement May 29 with the approval of Common Pleas Court Judge James C. Evans, in which Krueger will drop all charges against Adams if he passes a polygraph test. If he fails, Adams has agreed to plead guilty to a single rape count with the prosecution agreeing to recommend a four-year prison term.

Adams was indicted on three rape charges that carry a sentence of three to 10 years in prison each if convicted. The agreement stipulates that if Adams fails the test and reneges on his plea deal, Krueger would be allowed to use the test results at trial to corroborate the teenage boy’s testimony. If the results are inconclusive, another plea agreement could be negotiated, or the case could go to trial.

If he passes the test, charges would be dropped.

Police say Adams committed the rapes against a boy who was between age 14 and 16 and is 19 now. Officials say Adams used his status as a youth pastor in the boy’s church to molest the teenager.

For earlier coverage of this story, see More on Upcoming Trial-By-Polygraph in Ohio.

John Espenschied writes for Computerworld in “Beyond Polygraph Testing (The DOE Goes Over a Cliff)” (17 June 2007), criticizing the Energy Department’s move to embrace random polygraph screening and suggesting more meaningful alternatives for enhancing security. Excerpt:

June 17, 2007 (Computerworld) — The National Academy of Sciences conducted an analysis of the Department of Energy’s security screening policy and published the report “The Polygraph and Lie Detection” (NAS Press) in 2003. The review indicated polygraph tests are ineffective because of high rates of false positives and susceptibility to behavioral or physical manipulation. The DOE is concerned with preventing actions by malcontent scientific researchers, computer analysts and others with access to sensitive data, and for years it has used lie detectors in the background check and risk assessment process for job applicants. Those are reasonable concerns, but the DOE is right to review its policy in light of newer data.

However, instead of doing away with this nonsense entirely, the new DOE policy actually expands the use of random polygraph assessments while reducing periodic assessments. This is precisely the wrong way to go.

We’re still betting that a galvanic skin change is an accurate predictor of malice? Does anyone really think decreasing blood pressure differentiates the inner placidity of someone with nothing to hide from a perfectly content psychopath? A polygraph may be a useful prop for a skilled interrogator developing a subjective opinion about a person, but when it comes to predicting human risk or truth of statements, the results of polygraph testing are statistically indistinguishable from coin-tossing.

The Youngstown, Ohio Vindicator on Sunday, 17 June 2007, published a series of four articles concerning the upcoming polygraph examination of former youth pastor Darryl Adams, who stands accused of raping a minor. (See previous Vindicator report here.) In a devil’s bargain that revives in modern disguise the medieval trial by ordeal, Mahoning County assistant prosecutor Dawn Krueger has agreed to drop charges if Adams passes the polygraph, and Adams has agreed to plead guilty to a single rape count if he fails.

The Vindicator introduces the topic with an article titled, “[C]ould You Pass a Polygraph Test When Your Freedom Depends on It?”:

Continue reading ‘More on Upcoming Trial-by-Polygraph in Ohio’ »

In an editorial titled, “Defiant One,” the Akron Beacon Journal takes issue with Summit County, Ohio prosecutor Sherri Bevan Walsh’s decision to appeal Judge Judy Hunter’s order (252 kb PDF) admitting over objection polygraph evidence proffered by the defense in Ohio v. Sharma:

Defiant one

Prosecutor Walsh won’t listen to Judge Hunter, or to a polygrapher often used by her own office

This editorial page recently urged Sherri Bevan Walsh, the Summit County prosecutor, to think hard about her handling of the sexual battery case against Sahil Sharma. We did so in the wake of an extraordinary ruling by Judge Judy Hunter of the county common pleas court allowing into evidence three independent polygraph tests of the defendant. The judge did so without the required assent of the prosecution. She understood the lengths to which she was going. Clearly, she felt the need to send a strong message about the course the prosecutor has taken, about the risk of serving something less than justice.

Prosecutor Walsh responded to the editorial in a May 20 column published on the Commentary page. The tone and approach of the essay indicated that she isn’t going to heed the judge’s counsel. Her office has pledged to appeal the Hunter ruling. That is understandable in view of the legal precedent. It also misses the point. Judges do not take such steps willy-nilly. The order amounted to a desperate cry.

Read the prosecutor’s column, and Walsh fails to answer adequately the editorial or the judge. The disingenuousness should disturb county residents.

Sharma, a 26-year-old law student from New York, was arrested last August. Both he and the accuser attended a wedding. The incident occurred in the early morning hours at the Sheraton Suites in Cuyahoga Falls. He says they had consensual sex. She says it was not consensual. The polygraphers who examined Sharma concluded he was telling the truth in answers to questions about the incident.

In her column, Walsh challenged the independence of the polygraph examinations. To be sure, the defense arranged and paid for the tests. True, too, is that Walsh and other prosecutors across the country frequently use the polygraph as a tool in investigations. More, Walsh often has tapped Bill Evans of Polytech in Akron to conduct polygraphs for her office. He is one of the experts who examined Sharma.

Is Walsh suggesting the three polygraphs are inaccurate? Two of the exams were peer-reviewed, translating, in effect, into five experts finding Sharma truthful. Is Walsh arguing that Evans, for one, might have skewed the results to fit the defense version of events? What might that say about the work he has performed for her office?

Her column discussed at length the legitimate concerns about subjecting a victim of sexual assault to a polygraph. The critical issue in this case involves the polygraphs of the defendant. The key questions do not cover the murky realm of consent. Rather, they address such matters as whether clothing was removed and whether the accuser was asleep.

Judge Hunter called for allowing the polygraphs into evidence, provided, among other checks and balances, the defendant testified first and faced cross-examination. Prosecutor Walsh lamented that the ruling would make the eventual jury irrelevant. Actually, the judge had in mind the significance of the prosecutor’s office. Few offices are as powerful, requiring keen discretion at critical turns to serve justice and maintain public confidence. A question for Walsh: What if a jury convicts Sahil Sharma without knowing he passed three polygraph examinations?

Regardless of the merits of the case at hand, the outcomes of pseudoscientific polygraph “tests” should never be admitted as evidence in any court of law, or be relied upon in any way when it comes to the dispensing of justice.

James Paton reports for the Rocky Mountain News in “Legal officials say Broncos’ use of lie-detector test was ‘out of bounds’”:

Denver attorney Colin Barnacle, a fervent Denver Broncos fan and season ticket holder, isn’t one to challenge Mike Shanahan. But when the coach of the beloved Broncos subjected one of his players to a lie-detector test, Barnacle threw the flag.

If clients call seeking advice on whether that’s a legal move, Barnacle’s reply is usually no. A federal law bars employers from using the exam in most cases.

The Bronco on the hot seat is David Kircus. The receiver said he acted in self-defense in an incident that led to second-degree assault charges against him.

Shanahan, instead of simply standing on the sidelines, came up with the idea to grill Kircus with a lie-detector to determine whether he was being honest.
The 27-year-old athlete, reportedly eager to sit down and face the interrogation, passed.

“If he flunked the test, he would not be with us,” Shanahan was quoted as saying.

That was a bad call, said Barnacle, who works in the 17th Street office of law firm Jackson Lewis.

“Our concern with a news story like this, with a highly visible figure in Denver and a highly respected organization like the Broncos, is that there was no reference whatsoever to the law,” said Barnacle, who sent a letter to news outlets after hearing the Kircus story on the radio. “I can see an HR manager down the street saying, “Hey, the Broncos did it, why can’t we?”
Richard Alan Winkel, another lawyer in Denver, said companies must be “very cautious” in telling workers “they need to take a polygraph to retain a job.”

Other legal observers expressed stronger opinions.

Barnacle said “first and foremost, we are Broncos fans,” adding he appreciates the team’s quest for the truth. But he said he believes the club strayed from the legal playbook.

Lawyer David Lichtenstein offered his assessment: “No pun intended, but I think they were out of bounds.”

That’s because the law says the test is typically off limits.

There are scenarios in which it is permitted. An employer can sit a staffer down for an exam amid an investigation into workplace theft, to cite one exemption. Prospective workers in the security or drug sectors also can be asked to take a lie-detector.

However the “Employee Polygraph Protection Act” says an employer cannot “require, request, suggest or cause an employee or prospective employee to take or submit to any lie detector test” or “use, accept, refer to, or inquire about the results of” any test, according to the U.S. Department of Labor’s Web site.

Employers also are prevented from disciplining or firing someone on the basis of the results.

Shanahan’s use of a lie-detector isn’t an egregious offense — if it is one at all — but it could lead employers in Broncos country to mistakenly think they can do the same, lawyers said.

Why so tough on companies seeking to use polygraphs? The bottom line is results of lie-detector tests are “not considered sufficiently reliable to be admissable as evidence” in court, said attorney Barry Roseman.

“That’s a big reason Congress passed the law,” he said.

patonj@RockyMountainNews.com or 303-954-2544

Vindy.com of Youngstown reports in “Result of rape case to be decided by polygraph”:

Rape charges will be dropped if the defendant passes the test.

YOUNGSTOWN — A Boardman man charged with raping a Youngstown boy while he was between the ages of 14 and 16 will let a lie-detector test decide his fate.

Under an agreement between the prosecution and defense, which was approved by Judge James C. Evans of Mahoning County Common Pleas Court, the defendant, Darryl L. Adams, 41, of Glenwood Avenue, will submit to a polygraph to be administered June 21 by the Ohio Bureau of Criminal Identification and Investigation.

Adams, who maintains his innocence, was initially charged with three counts of raping the boy in Adams’ residence between 2002 and 2004, each carrying three to 10 years in prison. Dawn Krueger, assistant county prosecutor, alleges Adams used his status as a youth pastor in the boy’s church to take advantage of the teenager. The polygraph agreement was reached as Adams’ jury trial was to begin Monday.

What will happen

If Adams passes the polygraph, Krueger has agreed to drop the charges.

If he fails the polygraph, Adams has agreed to plead guilty to a single rape count, with the prosecution agreeing to recommend a four-year prison term and to stand silent concerning judicial release after six months. The prosecution would then drop the other two rape counts.

If the outcome of the polygraph is inconclusive, another plea agreement could be negotiated, or the case could go to trial.

“A polygraph examination should bring out the truth, and hopefully the charges against Daryl Adams will be dismissed,” said Adams’ lawyer, Dennis A. DiMartino.

A prosecutor’s willingness to dismiss charges based on the outcome of a pseudoscientific polygraph “test” is a tacit admission that reasonable doubt exists as to the guilt of the accused, and charges should be dropped for that reason alone.

Denver Post staff writer Mike Chambers reports in “Shanahan: Kircus Won’t Be Booted”:

A conviction for assault would not cause Broncos receiver David Kircus to be released from the team.

Coach Mike Shanahan said today that Kircus passed a lie-detector test Friday morning and that as far as the team is concerned, it will outweigh any criminal judicial result in the aftermath of his alleged fistfight with a Centennial homeowner in the early morning hours of May 20.

“David came to me and said, ‘Hey coach, I guarantee I did not take the first swing. I defended myself. I probably used poor judgment, being at the wrong place at the wrong time.’

“I said, ‘Well David, I’ll give you a chance to take a lie-detector test, and he wanted to do that. And he passed it with flying colors, so he will be on our football team,” Shanahan said.

Kircus is charged with second-degree assault, a class 4 felony. He is accused of assaulting homeowner Jeff Krieger, 26, in the driveway of Krieger’s home in the 8200 block of South Krameria Way at about 3:27 a.m. on May 20. Krieger suffered multiple facial fractures.

Shanahan said an FBI agent – “someone that does it for a living” – administered the lie-detector test.

“That’s fair enough for me,” Shanahan said. “When your career is based on if it comes out positive or negative, I get a good feeling he defended himself.”

It’s not the first time Shanahan has used a lie-detector test on players, college or pro.

“It’s been very good for us over the years, or at least my experience over the years,” he said.

And what about those who have flunked?

“They weren’t with us,” Shanahan said.

Kircus declined comment today.

Staff writer Mike Chambers can be reached at 303-954-1357 or mchambers@denverpost.com.

For Shanahan, polygraph results may be a convenient explanation for keeping a valued player even if he is convicted of assault, but they are proof of nothing. Polygraph testing has no scientific basis to begin with, is inherently biased against the truthful, and yet easily circumvented through the use of simple countermeasures that polygraphers have no proven ability to detect.

[Update] The Law Prof Blog points out that the Broncos’ reported reliance on the polygraph appears to violate the Employee Polygraph Protection Act.

Don Bohning reviews John Sullivan’s new book for the Miami Herald:

NONFICTION
CIA agent tells the truth about the polygraph
An insider reveals much about the secretive agency and its controversies.
BY DON BOHNING
GATEKEEPER: Memoirs of a CIA Polygraph Examiner. John F. Sullivan. Potomac. 288 pages. $27.95.

John Sullivan’s job was ferreting out liars. During a 31-year career as a ”gatekeeper” for the Central Intelligence Agency, he hooked up a record 6,000-plus potential liars to polygraph machines in 40 countries. Gatekeeper is his story, and it’s fascinating and troubling.

Sullivan opens bare the controversy, including within the agency itself, over the validity of the polygraph, which Sullivan staunchly defends, but as ”an art, not a science.” What’s disturbing is that the book exposes the CIA as just another big organization replete with turf wars, petty personal jealousies, incompetents, bad bosses and just plain ”bad apples.” One wonders how its internal squabbles might have affected the agency’s overall performance, particularly regarding the 9/11 attacks and the faulty intelligence that led to the 2003 U.S. invasion of Iraq.

While the subject may be esoteric for general readers, Gatekeeper sheds considerable light on aspects of what was — and remains — one of the most secretive and controversial U.S. government organizations. Despite a glossary, the book would have been better if Sullivan had avoided some 75 or so acronyms.

Still, the insider analysis is intriguing. Sullivan, who left the agency in 1999, believes a three-decade decline for the CIA ”of prestige and capacity to provide good intelligence” began in 1973 when then-President Nixon pressured Richard Helms to resign as CIA director. “The post-Helms CIA has been characterized by escalating politicization, internal and external turf wars and a steadily growing bureaucracy, all of which diminished the Agency’s capacity to carry out its mission.”

Sullivan reports Helms was the last director to ”openly challenge an administration,” unlike George Tenet, director under presidents Bill Clinton and George W. Bush until he was forced out. Tenet had a reputation among insiders for telling his bosses what they wanted to hear.

Sullivan’s interesting account of the agency’s early years also reflects the country’s post-World War II atmosphere in the wake of the anti-Communist, anti-gay witch hunt by the late Sen. Joe McCarthy of Wisconsin. At that time, he writes, “the CIA’s polygraph program focused on detecting Communists and homosexuals. Early tests had more questions dealing with Communism than any other issue, but the homosexuality issue was pursued equally vigorously.”

Among the turf wars within the CIA in which Sullivan became entangled was one battle with the Cuban Operations Group, due ”in large part because none of its [Cuban] agents could pass their polygraph tests.” The group’s chief complained to the examiners that not all ”our agents can be bad” and ”you are doing bad tests.” Unfortunately, writes Sullivan, the “Cuban [exile] assets, with rare exceptions, were all bad.”

But in another widely shared opinion among U.S. officials, Sullivan writes that “of all the intelligence services against whom I worked, I found the DGI [Cuban intelligence] one of the best, second only to the East German Stasi. The only reason I put the DGI second is because the Stasi had much more manpower and was better funded. With limited resources, the DGI was very effective in neutralizing our efforts to penetrate them and identifying our agents.”

Sullivan concedes there are ”many questions about the validity and reliability of polygraph” and concludes that “polygraph is much more effective in determining that a person is being deceptive than it is in verifying that a person has been or is being honest.”

Don Bohning is a former Miami Herald Latin America Editor and author of The Castro Obsession: U.S. Covert Operations Against Cuba 1959-1965.

A post on the Gone Nuclear blog titled, “I Cannot Tell a Lie” has been devoted to documenting the experiences of those who have been through the Department of Energy’s polygraph screening program.

The Cleveland Law Library Weblog provides further information on Summit County judge Judith Hunter’s 15-page order [link fixed] (252 kb PDF) to allow polygraph evidence over the prosecutor’s objection in the rape trial of Sahil Sharma (State v. Sharma, Case No. 06-09-3248).