by Jim Wygant
It is not surprising that we would rather not accuse someone we like. It is much less upsetting to challenge the truthfulness of someone we dislike or even a total stranger. In any case, when we consider the alternatives of quickly accepting or rejecting an excuse or explanation, it is not easy to resist the various pressures and temptations that urge a speedy resolution. Deferring judgment is complicated by a question we have yet to confront. How sure do we need to be to make a decision? Deferring a decision, suspending judgment while we weigh the evidence, does not mean never making a decision, but it may mean waiting longer than peers or colleagues – for whom the burden of being right does not weigh as heavily – would prefer.
There is no fixed scale, no set of rules to determine when the knowledge that we possess is sufficient to make a decision and move on. That moment is decided primarily by the answers to two questions: how sure can we be, based upon what we already know; and how critical is it that we make a decision without further delay. Those two sliding scales are independent.
In the worst case, we have little information but lots of pressure to reach a decision. That pressure is not just a measure of critical dependencies, a domino effect realized by significant failures in other areas if a decision is not reached quickly. If I don’t decide to abandon ship, there won’t be time to launch the lifeboats and many will drown. Criticality is also measured by peer pressure, the insistence of members of the crew who are demanding that I abandon ship, even though a premature decision would put many at risk.
The best circumstance would obviously be the opposite of what we have been considering: lots of information, sufficient to support a decision, at which point criticality becomes irrelevant for all but the most indecisive. Unfortunately it seems that we more often face the first circumstance, lack of evidence, rather than the second, a compelling amount of evidence.
Judging the sufficiency of evidence can be a challenging task. One strong, reliable, unequivocal element – whether it is a witness or a piece of physical evidence – may be worth more than a dozen other elements that are weak, unreliable, perhaps even contradictory. If we find the suspect with his hand in the cookie jar and crumbs around his mouth, we will not be persuaded by a friend of his who says they were at a movie together when the cookies from the jar were eaten by someone else.
We never know when we will encounter someone else’s lie or will subject ourselves to a deception of our own creation. Fortunately, lying of any consequence is not pervasive, so we don’t need to spend our waking hours searching for deceit. That level of distrust would likely have disturbing consequences for someone’s general mental stability. Trust is essential for the conduct of human relations. For most of us, we trust until we decide we have reason not to. We learn from our mistakes, even though we often make the same mistakes all over again. There are no absolute ways to detect lies. There never will be. There are some physical and behavioral characteristics that usually indicate lying or truthfulness, but they are not perfect. Taken with other factors they can help us form a resolve. And we can only hope that we’re right.
11. Reputations At Risk
It is difficult to measure the damage that accrues from a false accusation. In the eyes of the wrongly accused, the personal grief suffered by a day laborer who has only a small circle of friends is likely to be as great as that of a widely esteemed business executive. The rest of us – we who are not accused – tend to measure the damage done to the accused by the height from which we think he falls.
Over a relatively short period of time during the sexually confused ’90s I tested two men of substantial reputation, each of them accused of sexually abusing a teenaged daughter. One man was a medical doctor, the other a high school teacher with more than twenty years experience. Each was at the apex of his career, esteemed by colleagues and looking forward to slipping into respectful retirement. Both were accused by their adolescent daughters of extreme sexual abuse. Both were indicted under the direction of the same deputy district attorney. For months both were regarded as pariahs among their peers in the compact professional communities where each labored. Charges against both were ultimately dismissed, but I suspect that their lives from that point forward were substantially different from what they had once imagined.
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I encountered the high school teacher first. There is something about phone calls I receive directly from private citizens, a certain hesitant quality, that immediately distinguishes them from the calls I receive from attorneys. When the teacher phoned, I recognized at once that my caller was not a lawyer, which meant that the call was likely to be a waste of my time, someone trying to satisfy curiosity about something that would not result in any work for me.
In the 1990s I received several inquiries each week from private citizens or employers. They wanted to know what my fees were – always higher than expected. They asked about test accuracy and told me stories they’d heard about people “beating” the test. And finally they got around to proposing an issue that was either prohibited by law (which included most things related to employment) or that I had personally chosen not to do (notably infidelity in personal relationships). If an attorney called, work was likely to result. If a private citizen called, I would answer questions and listen politely but didn’t expect to provide any services for which I would be paid. It was in that frame of mind that I listened to what Darrell Mitchell wanted to tell me.
He said that he was a school teacher whose teenaged daughter had made sexual accusations against him. He had not yet been indicted, but he expected it might occur soon. He had already taken one polygraph test and produced mixed results. On one critical issue the test indicated truthfulness; but another issue was inconclusive. No investigative reports had been available at the time of that first test, so details of the accusations had been sketchy, which could easily account for the inconclusive result. Mr. Mitchell wanted another polygraph test, and he now had all of the official reports. The grand jury had already met and Mr. Mitchell’s attorney predicted that it was only a matter of days before they issued an indictment. Although Mr. Mitchell was still trying to keep the accusations secret, he knew that an indictment would make that impossible. His attorney had agreed to the second polygraph test, but left it to Mr. Mitchell to make the arrangements, an indication that the attorney may not have had much hope for better test results.
Mr. Mitchell asked that I conduct the test at his home. I usually work in my own office or that of an attorney, where I can prevent any interruptions. Mr. Mitchell assured me that he could provide the same environment. The only other person home would be his wife, bedridden with multiple sclerosis. He agreed to mail me copies of the reports before the test, so that I could become familiar with the official version of his daughter’s complaint and even sketch out a few possible test questions.
Lindsay Mitchell was not quite 15 years old when she first complained that her father had sexually abused her. She was a deeply troubled teenager who had previously been hospitalized on two occasions for extreme depression. On neither of those occasions had she claimed any sexual abuse. She later said that she had no memory of the abuse until she suddenly recalled it at the age of 14. She was at her grandmother’s when her father tried to hug her. She was repelled by his touch. As she later described it, the terrible recollection of his sexual abuse flooded back into her conscious memory.
She was at that time living with a woman who conducted a class at a church Lindsay had begun attending on her own. The woman had befriended the obviously unhappy girl and had eventually invited her to move in. Her parents, recognizing that Lindsay was not happy at home and believing that the volunteer foster parent was suitable, agreed. Darrell Mitchell contended later that the woman had encouraged Lindsay’s belief that her unhappiness must arise from sexual abuse by him, whether Lindsay remembered it or not. Lindsay did eventually claim to remember, but Mr. Mitchell insisted that it was a false memory, inspired by her desire to please her new caretaker and by her co
nfusion about her role at home.
Over the years I have read thousands of police reports, and I believe that the officer’s report of his initial interview with Lindsay Mitchell must be one of the most unusual. He met Lindsay in the home of the woman from the church. The officer described Lindsay as nearly catatonic, sitting on the floor in a corner. Shortly after the officer arrived, and while he was still speaking with the church woman, Lindsay suddenly fell over on her side and then jerked and trembled as though having a seizure, although she had no medical history of such episodes. The church woman, who had apparently seen this before, took little notice.
The police officer had brought with him a stuffed animal he had found helpful in talking with children. The church woman cautioned him that Lindsay was afraid of stuffed animals. The woman suggested they go to a back room of the house to talk. The officer wrote in his report that Lindsay, age 14, crawled the whole way to that room and then sat on the floor with her knees tucked up tightly against her chin. Shortly into the interview she again appeared to faint, falling over on her side. Within a few minutes she suddenly jerked back to consciousness and resumed the interview. This happened several more times without intercession by the church woman.
Since police officers do not usually include details about bizarre behavior of a witness or victim, I concluded that the officer meant to convey in his report that this was a most unusual situation. He was telling the reader both about Lindsay’s strange behavior and about the relationship between her and the woman from the church. The officer seemed to issuing a kind of warning about this complaint, although he never directly spelled it out.
The tale that Lindsay told began when she was two years old. She said that her father locked her into an infant’s high chair and forced her to suck his penis. This continued, she said, until she was five. Then for a few more years he sexually fingered her vagina. Lindsay later expanded on her complaints when interviewed further at a hospital known for its highly respected sexual abuse debriefing program. Lindsay told the social worker there that her father had subjected her to sexual intercourse from ages five to nine, and then reverted to sexually fondling her vagina. The hospital social worker did not mention any of the strange behavior reported in the police officer’s report. The social worker regarded Lindsay’s complaint as valid.
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I met Darrell Mitchell at his home on a rainy spring day. He was a slight, nervous man, clearly troubled by the accusations. He knew that if he were indicted he would be suspended from his teaching job; and if he were convicted everything would be finished – teaching, family, friends, professional colleagues. He was 44 years old and was facing the possibility that all he had worked to accomplish in his career might be destroyed along with the balance of his reputation.
As Mr. Mitchell escorted me into his home, he told me that his wife was in the bedroom. She had suffered from multiple sclerosis for years. I never saw or heard her during my time in the house. I knew that the deputy district attorney who was looking at this case was likely to assume that the wife’s unavailability for sexual intimacy had induced her husband to turn toward their daughter. It was a sick rationale, but anyone who worked sexual abuse cases knew that such things happened. The couple had one other child, a boy whom they had adopted as an infant five years earlier.
Mr. Mitchell told me that he thought the adoption had caused problems for Lindsay, who no longer found herself the center of attention in the family. In fact she had become the least attended person in the home because of her mother’s increasing incapacity from illness. It was Lindsay who had to take up many of the housekeeping tasks her mother could no longer accomplish. For a girl just entering adolescence, it must have been a confusing adjustment, cooking meals and providing for her father in many of the same ways her mother had once done. Lindsay had suffered clinical depressions and had been hospitalized in adolescent treatment programs on two occasions.
My review of all of this information left me with a mixed impression. Lindsay’s disturbed mental and emotional state might be attributable at least in part to her poor adjustment to the changes in her family. It might also be attributable to a childhood stolen from her by sexual abuse. The same might be said for her delayed recollection of the alleged abuse. It might be a false memory inspired by her desire to please a new caretaker who encouraged her in that direction; or it might be a real suppressed memory of something too traumatic to have recalled sooner.
I conducted my polygraph examination of Mr. Mitchell at his dining room table. We carefully discussed the ten questions that would constitute the test. Included were three questions that would trouble any father, guilty or innocent. I asked Mr. Mitchell if he had ever had Lindsay put her mouth on his penis. I asked if he had ever put his penis in contact with her vagina. And I asked, “Did you ever engage in contact with Lindsay that you intended to be sexual in nature?” The scope of this last question was broader than I preferred, but I wanted to cover all possibilities. Lindsay had described several different kinds of sexual abuse, and her statements had not been consistent regarding either the types of contact or when they had occurred.
I asked the questions four separate times in the examination. I could see after three charts that the results appeared to indicate truthfulness, but I did a fourth chart to be certain. It did not vary from the three others.
It is an unfortunate circumstance of my profession that if the results after three charts had indicated lying I would have stopped without a fourth chart. No one asks to review deception results from a private examiner. When those results occur with the client of an attorney, the test remains confidential and there is no perceived advantage to getting a second opinion. But any result of truthfulness from a private examiner is likely to be subjected to review by a police examiner. The consequence is that I must hold truthful results to a higher standard – higher than results indicating lying, and higher than truthful results obtained by a police examiner, whose work is rarely reviewed, regardless of results. That does not mean that someone is less likely to pass one of my tests; but it does mean that the charts must be undeniably definite before I can offer an opinion of truthfulness. It would not be helpful to anyone, particularly the defendant, if I released results that were later challenged.
As a private examiner, I can not be influenced by factors that are not evident on the charts themselves; and my scoring of the charts must be impeccably objective. District Attorneys have never figured out any of this self-discipline, so they keep asking for reviews of any truthful results reported by private examiners. They have also never realized that most of the criminal defendants tested by private examiners fail their tests. Some deputy district attorneys assume that private polygraph examiners produce nothing but truthful results, because those are the only results that defense attorneys ever release to them.
I told Mr. Mitchell that his test clearly indicated his truthfulness. He was pleased but remained concerned about the possibility of an indictment. The grand jury had heard the case a few weeks earlier and, according to Mr. Mitchell’s attorney, was on the verge of issuing an indictment. I promised to expedite the report to his attorney. I completed it immediately upon returning to my office.
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Nearly two months passed before I heard anything further. I received a brief note from the attorney saying that the deputy D.A. wanted to review my file, including the charts. What I did not learn until later was that Mr. Mitchell had been indicted on several felonies shortly after my examination. The school district where he taught suspended him immediately from all work.
The usual process for review of an examination is for the two examiners to connect directly and arrange to meet or to ship the documents. Sending charts to a lawyer or a District Attorney’s office has brought many examiners to grief. The charts get lost or are never returned, and the original examiner never learns about the second opinion, what it was or who offered it. I wrote back to the attorney, suggesting a review by a police examiner who
se office was not far from my own. Without waiting for a reply, I showed that examiner the test the next time I conferred with her. She concurred that the questions were appropriate and the charts indicated truthfulness. I sent the attorney another letter, reporting the police examiner’s opinion. I thought that might be the end of the process, but the attorney called and said that the deputy D.A. was insistent that she get the charts for submission to a police examiner of her choice. I mostly conceded, refusing only to release the original charts to any lawyer. I undertook the annoying and laborious process of copying the nine feet of paper charts in segments and then assembling them into a continuous replica of the original. I mailed it off with no expectation of ever hearing anything further.
A short time later I received a considerate call from a police examiner I know well. He had been chosen to review the test. He wanted me to know that he agreed with the questions and the results. He asked why I had not sent the materials to him directly, as I had often done in the past. I explained that the deputy D.A. insisted on her own rules. We were both amused by the prosecutor’s suspicions of me.
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Another period of several months passed before I heard anything more about Mr. Mitchell. I received a call from a different attorney in the same law firm. The indictment against Mr. Mitchell had been dismissed. He was back teaching, caring for his invalid wife, raising their five-year-old adopted son, and trying to reconstruct his reputation and his personal and professional relationships. In a way he never would have wished for, he had found out who his true friends were. He knew that others would continue to suspect him, even though all of the charges had been dropped. His life had been changed forever.
Although I was glad to have received information about the dismissal of charges, the attorney had not called for that purpose alone. The firm had another client in a similar predicament. This one was a medical doctor. The alleged victim was his 16-year-old daughter. The deputy D.A. was the same. And the doctor had already been indicted.
