by Jim Wygant
He readily laid out a complete story of what had happened. One of the boys lived near the victims. The boys took a parent’s rifle and went to the mobile home to steal money. They displayed the rifle only after Rachel opened the door. They held her at gunpoint on the sofa and demanded to know where she kept her money. They took what they found in her purse. Then they tragically resorted to an act they had probably seen depicted in countless crime dramas. They convinced themselves that they must leave no witnesses. It would be just like TV and the movies. One of them shot Rachel without warning. The crying six-month-old infant in Rachel’s lifeless arms somehow represented to the two boys another potential witness, so they shot her also.
They didn’t know William. They confirmed that he’d had nothing to do with their crime.
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Over the years I have encountered other persons whom I believed to be wrongly accused. Most were eventually able to avoid being convicted of something they had not done. Sometimes that has been achieved only at substantial expense in legal fees and lost employment. Sometimes, as in the Dillon and Morsby cases, it has meant paying a different kind of price, temporary loss of freedom. Any of these men would tell you that the only thing worse than having to defend against a false accusation is to be convicted of one. That happened to Roy Billings. He was convicted of a crime I do not believe he committed.
Billings was a 54-year-old diabetic who took insulin shots twice each day. Ten years earlier he had spent seven months in a state mental hospital, committed there by his first wife. When I met him I thought he was a little slow and mildly eccentric, but clearly not delusional and not “crazy” by any common definition. He was self-employed as a printer and lived in the back of his shop in a two-room apartment. He restored old cars, both as a hobby and to supplement his income.
Billings admitted that he liked to obtain sex from young prostitutes. Five years earlier he had married one who was a cocaine addict. Billings denied using illegal drugs himself and said that he only discovered his wife’s drug problem after they were married. They’d had a daughter, Melanie, the only child Billings had conceived in any relationship. Melanie was four years old at the time I met Billings. She tended to be hyperactive, possibly related to her mother’s use of cocaine during the pregnancy.
The couple was divorced when Melanie was one year old. Melanie’s mother had little interest in custody, which was awarded to Billings. Billings was fifty years older than his daughter and felt that the age difference caused strangers to be suspicious when they saw him with his little girl. Regardless of that, he had been raising Melanie by himself for three years, since she was one-year-old. She lived with him in the back of his print shop in the two-room apartment.
At about 10:30 p.m. on a Friday night in January, Billings took Melanie to a Denny’s Restaurant for dinner. He had done this often, working late, and then taking Melanie to one of the two or three restaurants he frequented. The staff at Denny’s knew him and Melanie from past visits.
On that particular night a professional social worker, Dolores Franklin, happened to be passing through town on her way home from a conference. She stopped at the same Denny’s. Her booth was not far from that occupied by Billings and his daughter. Ms. Franklin saw Melanie eat quickly, as though she were starved, and then scoot around the booth to sit next to Billings. She watched as Melanie played with napkins. What Ms. Franklin observed next alarmed her.
She told police that she saw this 54-year-old male reach down the back of the pants of the four-year-old girl who was with him. He reached so far, Ms. Franklin claimed, that the waistline of Melanie’s pants was two inches above his wrist. She was precise about that. She said that Melanie’s attitude became “frozen.” Ms. Franklin was certain that Billings was sexually fondling Melanie’s vagina. While he did that, he continued to smoke a cigarette with his other hand.
Ms. Franklin complained to the Denny’s staff. No one else in the restaurant had observed anything unusual. The staff said that they knew Billings, had never had any problem with him, and did not see anything wrong currently. They refused to do anything. Ms. Franklin then followed Billings to the parking lot and obtained the license number of his car. She phoned the police.
In the report written by the officer who spoke with Ms. Franklin, he methodically repeated what she told him. Finally on page five he wrote, “I asked Ms. Franklin what it was that she was making a complaint about.” This is an unusual statement to encounter halfway through a police report. It suggests that the officer was having the same difficulty with this complaint that the Denny’s staff had. Ms. Franklin said she had observed what was “clearly a sexually abusive situation.” She told how she felt “sickened” and “angry that the manager did not act on her complaint.”
The police identified Billings from the license number. Because Melanie’s mother was conveniently available in jail, the police decided to visit her there even before meeting Billings. She mentioned that she had another daughter (from another man), who was in custody of her mother but had frequently stayed with Billings. That girl was seven. The police decided to talk with her next. She told police that Billings was in the habit of taking her and Melanie out to dinner in the late evening. She said that he had never done anything sexual to her and she had no reason to believe he had done anything to her half-sister, Melanie. The police then went to the print shop to talk to Billings.
They asked about Melanie. He showed them where she was sleeping in a back room. They awoke her, but because Billings was close by, they did not attempt to question her. They told Billings that he had been the subject of a complaint of sexual abuse. He said that Melanie was regularly seen by a pediatrician and had never reported any kind of abuse. The police left.
The case was handled in the District Attorney’s office by a deputy D.A. who had a reputation indicting on all sex complaints and refusing to consider any alternative to trial. Her attitude ran counter to most deputy D.A.s, who do not have a fixed regard for cases of any particular type. She was remarkably inflexible. Not long after that, Billings was arrested for sexual abuse. Melanie was taken away from him and put in foster care.
Billings insisted that he was innocent. He admitted that he rubbed the small of Melanie’s back under her shirt. He said that he did it often when she became hyperactive. It seemed to soothe her. He had done it in the restaurant because he could see that she had become restless. He denied putting his hand down the back of her pants. Melanie herself, shy and uncomfortable with strangers, remained silent, giving no corroboration to the report of Ms. Franklin.
That was the case that went to trial. Billings’ attorney chose to argue before a jury. And the jury chose to believe the professional social worker instead of the little girl’s father. Billings was convicted.
Until then no one had asked for a polygraph examination. Billings was awaiting sentencing when his attorney phoned with a request that I test him. The hope was that favorable test results might mitigate the sentence.
The pretest discussion and question formulation were routine. I told Billings that among the ten questions I would ask him in the test would be three specifically about his conduct with his daughter.
That night at Denny’s, did you rub on Melanie’s vagina?
That night in Denny’s, did you rub on Melanie’s buttocks for sexual reasons?
That night at Denny’s, did you do any deliberate sexual touching of Melanie?
Billings answered “no” to all three of those questions.
In the test, I asked all ten questions three separate times. The physiological responses were so strong and clear that I knew what the result would be even before I scored the charts. Billings produced strong indications of truthfulness. I was convinced that he had not done the crime for which he had already been convicted.
This 54-year-old diabetic father of a four-year-old daughter was placed on probation and ordered to enroll in treatment for sex offenders. Since almost all such treatment requires that the participa
nt admit his guilt as a condition of acceptance into the program, Billings must have had a difficult time in treatment. Steadfast denial of guilt can lead to a recommendation that probation be revoked and a jail sentence imposed.
Worst of all, Billings was separated from his daughter. Because of this complaint, it was decided by people of great authority that it was unacceptable for Melanie to live with either of her parents. The mother was a prostitute and cocaine addict, currently in jail, and the father had been judged to be a sex offender.
Billings may not have been the most adequate father, but he was the only parent his daughter had known. That ended abruptly with one dubious, unsubstantiated complaint.
10. Why We Lie
To arrive at a conclusion we usually go through an evaluative stage. We listen to arguments, hear opinions, review evidence, maybe even ask questions or consult other sources to relieve any doubts we might have. We use that process to buttress our final opinion that, for instance, some one is guilty or wrong, or that some cause deserves our support.
Once we have arrived at a determination, we typically don’t want to listen to contrary opinions. We find disagreement annoying, even if it is not presented in an inflexible concrete fashion that begins by asserting we are wrong. We don’t like being told what to believe, and we are especially sensitive about protecting opinions we have held for a while. We would rather find information that reinforces our existing views than something that insists we go back and begin again the process of evaluating something, usually dismissed as a waste of time. The accumulative effort of building an opinion does not tolerate well any suggestions that the builder tear down what he has already constructed and start over with a new foundation.
We are often quick to adopt anything that supports our preconceived notions and to reject anything that refutes them. If we already suspect that Joe took the five dollars missing from the petty cash fund, we tend to look for evidence that advances that suspicion. Joe told a co-worker he was having trouble making his car payments. Joe is getting a divorce. Joe is creepy. Joe has been acting “funny” lately. Those considerations may be embraced without hesitation, while the company time sheet that shows Joe was not at work on the day of the theft might be rejected: “He could have falsified that information.”
We place great stock in eyewitnesses, which in criminal trials are typically embraced as the foundation of truth. There are two assumptions: first, that eyewitnesses will only say what they know to be true; and second, that the amount of confidence they express is a reliable indicator of how sure they are. Both assumptions have been shattered by studies that have demonstrated how frequently mistakes occur, and how there is little or no correlation between expressed confidence and accuracy. And yet, we commonly assume that the more emphasis a witness gives to what she says she saw or experienced, the more credible it is. We do this without having reference to how confident that person is in delivering routine opinions in daily life. Some people are always certain and will not ever reveal any doubts. Others are never so confident. In a criminal trial or any other circumstance in which we do not know how confident a person is generally, we may mistakenly assume that an expression of extreme confidence means something significant, when it may be nothing more than that witness’s usual way of expressing himself or herself. We are persuaded by verbal assertions of confidence. We don’t want to hear “I think so, but….” We want to be told, “I have no doubts.” That kind of rigidity helps us chart a course, saves us the effort of having to do more analysis ourselves.
We know from reversals of criminal convictions that most errors in those cases arose from reliance upon faulty eyewitness testimony, later proven wrong by DNA experts. There is abundant research that has repeatedly demonstrated that eyewitness testimony is wrong to a surprising degree, sometimes producing results little better than chance (flipping a coin). Still, we tend to give more weight to eyewitness testimony than to factors that might have influenced it, including some which would diminish the reliability of the eyewitness. For instance, in one research project the mock jurors were told that the eyewitness upon whom they were relying had only 20/400 vision, seriously impaired eyesight. The jurors reduced their level of certainty only slightly. We ignore or are quick to dismiss such critical considerations as the brevity of the witnessed event, how traumatic it was to the witness, how well lit it was, and how confusing. Instead we place our reliance upon the simple statement, “that’s the guy.”
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When you deal with truth and lies as an element of your work, and not just as a curiosity, you can’t help wondering why we ever tell lies, even in relatively innocuous situations. There seem to be only a few reasons.
We often lie when trying to get out of trouble because we don’t know yet what the consequences of being caught might be. We are afraid and at least for a few moments imagine the worst. We develop that fear as children. Even if parents never use corporal punishment or any form of severe discipline, a child learns quickly that there is a price to pay for being caught at something that is prohibited. That price for a child may be nothing more than loss of privileges or temporary denial of affection, but the extent of the consequence can not be known with certainty when we are first confronted. At that moment we don’t have time to sort out the possibilities and we react instinctively in a defensive response.
As adults we understand that consequences come in many forms. Some of the possibilities that we fear might include: arrest or imprisonment; physical pain or discomfort; loss of employment; loss of trust; loss of affection; loss of social status; and humiliation and embarrassment.
In order to avoid that uncertain range of possibilities, our initial reaction is to lie in many circumstances in which we are accused or suspected of having done something wrong. It is self-defense. When someone asks “did you do it?” we don’t mentally run through a list of possible consequences and rationally identify the most likely. There isn’t time to do that and there are too many distractions. We may manage to do it in the following minutes or hours or days, but in those first few seconds, caught unawares, there is no time to do anything except offer the simplest response: denial. It is as natural as flinching away from somebody else’s hand when it is moving toward your cheek in anger. These are not rational decisions. They are instinct, which means only that they originate from a lower, more primitive part of the brain, a part that we have in common with most animals.
The self-defense reaction arises as soon as we perceive that the other person is generally displeased and will become more intensely displeased with us as soon as suspicions are confirmed. In a circumstance in which we are suspected of something we quickly and instinctively measure the degree of dissatisfaction in the accuser. The more unhappy the accuser, the more likely we are to deny. An accuser who laughs about an incident, credibly treating it as a joke, is more likely to get an admission, rather than a denial. In that situation the suspect is apt to want to take credit for having done something entertaining, rather than deny something that promises an unpleasant consequence.
The old police interrogation strategy of “good cop, bad cop” was built upon the obvious need for an accused to find a less threatening way out of a problem. The “bad cop” acts angry. Simply by his anger and abrupt attitude he threatens dire consequences. He does not even need to specifically describe the possibilities. He leaves the room and the “good cop” enters. He acts friendly, suggesting only by his behavior that dealing with him, rather than his partner, will be much more agreeable. Even though most adults have heard of this interrogation method, it still works because it’s based on a sound understanding of human nature. Mitigation of a consequence, in the mind of the accused, leaves him more apt to make at least partial admissions. The “good cop, bad cop” method contrasts the worst possible consequences with something less, making the lesser choice all the more appealing. Without the contrast, with only a “good cop”, a suspect may begin to think that he can escape without any consequences at all,
not an effective means for an interrogator to penetrate denial. There can be no suggestion of possible mitigation, no offer of less consequence, if the worst is not made apparent first.
The “good cop, bad cop” procedure is a bit like price haggling at a sale of used goods. The seller, equivalent to our interrogator, starts with his highest possible price, fully realizing that he is not apt to sell the goods at that price. He also recognizes that he will only make the sale if he keeps the buyer happy and makes the price appealing. He does that by starting at a price higher than he expects to get and then bargains down, hopefully making the sale before he reaches his lowest possible price. The buyer needs to believe that he is getting a good deal, a reduced price, and he will only believe he has achieved that if he is first offered the goods at a higher price.
If there were only a “bad cop” interrogator, threatening and angry, he would find himself in the same predicament as a salesman of used goods at a public market who stated a price the buyer regarded as too high and then refused to bargain. Threats or inflexible positions don’t work well. Neither does the opposite, starting at the least possible consequence or the lowest possible price. The contrast between the worst and the best needs to be apparent to expedite either confessions or the sale of goods.
