Officers decry 'polygraph abuse'

BY TIM McGLONE, The Virginian-Pilot
Copyright 2000, Landmark Communications Inc.

VIRGINIA BEACH -- Former Beach police Officer Michael P. Hines is still haunted by the 1992 polygraph test that branded him a liar.

Accused of fabricating details of a traffic stop, Hines was fired by the department that year based in part on his ``deception'' during the polygraph test ordered by then-Chief Charles R. Wall.

He eventually cleared his name and got his job back, with back pay, only to quit three years later to attend law school. He is now a prosecutor in Florida.

``This incident to this day dogs me,'' said Hines, closing the door to his office so no one would hear his telephone conversation with a reporter.

Hines said he had trouble being admitted to the Florida Bar in 1998 because of the accusations. The Bar ultimately admitted him.

Beach police officers cite the Hines case and other examples of what they call polygraph abuse in arguing for a new law that would prohibit law enforcement administrators from forcing officers to take a lie detector test.

Employees of police departments, sheriff's departments and jails currently are the only government employees who can be forced to take a lie detector test.

While experts disagree on the reliability of polygraph testing, most say it is an effective investigative tool for weeding through lies to uncover the truth. But some experts find it ironic that police officers routinely give polygraphs to criminal suspects, but are reluctant to take the test themselves.

Police chiefs, sheriffs and jail superintendents around the state are opposed to the proposed bill, which sailed through the Senate last week and is awaiting action in the House. They cite numerous examples of polygraph testing weeding out untruthful officers.

One such case involved former Chesapeake police Officer Dennis R. Blazer, who admitted -- after failing a polygraph test -- that he didn't tell the whole truth about being shot during a traffic stop in 1998. Blazer said he withheld the information because he was ashamed of how he handled events leading to the shooting. He resigned from the force.

Chesapeake Police Chief Richard A. Justice declined to comment on the proposed measure. But acting Beach Police Chief Alfred M. ``Jake'' Jacocks, who formerly was in charge of the department's Professional Standards Office that administered polygraphs, said the law should remain intact.

``I think the code as it's currently written provides adequate protection for employees,'' Jacocks said.

``It says you can't discharge, demote or discriminate against (officers) solely on the basis of a polygraph. It is intended, and is used by this department, as one factor in an internal investigation,'' he said.

The case involving former Beach officer Hines led to a change in the law that prohibits the government from using polygraph test results as the sole reason to fire or discipline an employee. Hines said he lobbied for the bill.

But Beach officers say even though they can't be fired for polygraph results, internal affairs investigators sometimes mistreat officers during the test and unfairly use the results against them.

An officer in the 3rd Precinct spent three hours wired to a polygraph machine during a 1998 internal affairs investigation into allegations that he beat a suspect during a trip to the city lockup, according to union officials.

The investigator administering the polygraph accused the officer of lying and told him his job was on the line, the officials said.

``The officer maintained he was not lying, but the test showed he was lying,'' said police Officer Bobby Mathieson, president of the Beach Police Benevolent Association.

After a five-hour interview, the officer was sent home.

``He was so emotionally drained, very distraught. He thought his job was in jeopardy, and he was telling the truth,'' said Mathieson, declining to name the officer, who is still with the department.

About two days later, a lieutenant called the officer and told him he was cleared. As it turns out, the officer wasn't on duty the day the alleged beating occurred, Mathieson said.

The department disputes Mathieson's version of events in that case, though they admit the officer was cleared in the end. Officials said they are prohibited from discussing personnel details.

``That explanation is not consistent with the way polygraphs are administered,'' said Capt. Ernest E. Rorrer, head of the department's Professional Standards Office. He said officers never are subjected to three hours of polygraph testing.

Mathieson and other current and former officers lobbied for the bill last Monday before a Senate committee hearing the proposal.

Retired Beach Sgt. Brenda Bowman, who used to administer the polygraph for the internal affairs office, says she has witnessed abuse in the way the machine was used and how officers' rights were violated. She said officers sometimes are not advised that they can have a copy of the test results or that they can have the examination recorded or videotaped.

``Police officers are not given the same rights as a murderer or a criminal, and because of that, I don't think they should be given polygraphs in internal investigations,'' she said.

Criminal suspects can volunteer to take a polygraph, but police officers can actually be forced to take one, according to current law.

``There have been cases where I personally have been told to go back in and tell the person he failed when he did not, just to see what kind of reaction you can get,'' said Bowman, who administered her last polygraph in 1998 before retiring.

Jacocks said he knows of no such abuse of the polygraph.

He cited a recent internal affairs case in which a polygraph test helped clear an officer of wrongdoing.

``Our position is there's got to be other evidence or other factors to lend credence to the results of the test before we make a decision'' on whether to discipline an officer, Jacocks said.

``If this bill were to pass, is this going to be the end to successfully determining the validity of complaints on officers? I don't think so,'' he said.

Sen. Ken Stolle, R-Virginia Beach, sponsor of the legislation and an attorney who frequently defends officers in internal affairs cases, said it's time to stop treating officers like second-class citizens.

``Cops aren't criminals. To compare police officers to criminals is the worst miscarriage of justice I have ever seen,'' Stolle said.

The Senate approved the bill on Thursday by a vote of 39-1. Only Sen. Yvonne B. Miller, D-Norfolk, voted against it. She said the proposal surprised her and that she voted against it because she has heard no complaints from Norfolk police officers.

Del. Terrie L. Suit, R-Virginia Beach, is sponsoring the same measure in the House.

Most states, including Virginia, forbid the use of polygraph test results as evidence in criminal trials. Studies have shown the test to be unreliable.

``It's reliable for some purposes, but it's certainly not reliable for the standard of proof required in a criminal case,'' said Lewis R. Katz, law professor at Case Western Reserve University School of Law in Cleveland.

Katz and other experts said that more and more employers are using polygraph tests as a tool during internal investigations and pre-employment screening. But some caution that its use may become abused.

``I have difficulty with the idea that public employers can require a polygraph without any real reason to do it,'' said Katz, an expert on search and seizure laws and author of the book ``Know Your Rights.''

The U.S. Supreme Court also has found polygraphs to be unreliable. In an 8-1 vote, the nation's highest court decided in 1998 that lie-detector results can be banned from trials.

The court did, however, allow states to set their own policies.

New Mexico, for one, allows polygraph test results to be admitted at trials under certain circumstances, said Paul Minor, a former FBI agent and an expert on polygraph testing who owns a security company in Northern Virginia.

Minor disagrees with the Supreme Court's decision. He says polygraph testing machines have improved dramatically during the past 15 years.

``It's a reliable tool. Scientifically, it's probably better than most'' other tools, said Minor, who spent 10 years conducting polygraph tests for the FBI and another 15 years previously in the same job for the Army.

Minor is now president of the American International Security Corp. in Fairfax and frequently testifies in courts around the country as an expert polygraph examiner.

He is scheduled to testify for a second time in an upcoming capital murder case in the state of Washington. An appeals court sent the case back for a new sentencing hearing because the trial judge failed to consider the suspect's polygraph test results, Minor said.

For Hines, the former Beach police officer, proving himself innocent, winning his job back, getting the law changed and ultimately becoming a lawyer haven't stopped him from worrying that someone will throw the incident in his face again.

``I've got a new life. Why should I have to explain for the mistakes of somebody else?'' he said.

Staff writer Holly Heyser contributed to this report.