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November 18, 2009

District judge imposes sentence after defendant ordered to take (and fails) lie-detector test

I just came across what strikes me as a very unusual federal sentencing story from the district court of Minnesota. I have bolded below the part of this local press article, which is headlined "Drug sales net prison term, and a lecture from federal judge," that really grabbed my attention:

U.S. District Judge James Rosenbaum was angry.  The target of his wrath, standing before him Tuesday, was Mark Andrew Goetz, 41, of Minneapolis, who had pleaded guilty to selling drugs to an undercover informant.

But it wasn't a run-of-the-mill dope case.  Goetz ran a business registered by the government to destroy outdated or unwanted pharmaceuticals.  But instead of destroying some of the drugs, he sold them on the street.

Goetz was in the middle of sentencing Nov. 5 when Rosenbaum asked him if he'd only sold drugs illegally twice, as the government had alleged in its indictment.  Goetz assured him those were the only times, but the judge didn't believe him, halted the proceedings and ordered Goetz to take a lie-detector test.

As it turned out, Goetz had lied and that visibly rankled Rosenbaum when the man was finally sentenced Tuesday in federal court in Minneapolis.  "Why are you lying to me?" the judge asked, referring to the earlier hearing.  Goetz replied that he'd been scared and thought he had to admit only to the two drug sales prosecutors had charged him with.  "You're playing games," Rosenbaum thundered. "You're a convicted criminal. It's a little late for that."

Goetz told him there were three other instances of illegal drug sales and that was it.  "I give you my word," he said. "How good is that?" the judge shot back.  "It was worthless the other day.  All I know for sure is you're a liar."

The judge sentenced Goetz to four years in prison, with supervised release for three years after that....

On July 28, Goetz agreed to a plea bargain.  In return for pleading guilty to distributing alprazolam and oxycodone, the government would drop the indictment's other count.

At sentencing, DeGree asked Rosenbaum for a "significant variance" from federal sentencing guidelines, which called for a sentence ranging from 57 to 71 months.  He noted that Goetz had started his own business "and ran (it) ethically for 16 years" and had lived an "exemplary" life until "some financial pressures" prompted him to sell drugs he had been entrusted to destroy....

Assistant U.S. Attorney Steve Schleicher opposed leniency, saying Goetz's money troubles boiled down to the fact that he "bought a house he couldn't afford."

I have never before heard of a judge stopping a sentencing hearing mid-stream and then ordering the defendant to take a lie-detector test!  I suppose it is also noteworthy that the district judge here, even after being "angry" at the defendant for his lies during the sentencing proceedings still imposed a below-guideline sentence.

November 18, 2009 at 04:24 PM | Permalink

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Polygraph examinations are absolutely meaningless. They have no legitimate scientific basis whatsoever. You might as well flip a coin to decide whether or not somebody is lying, you're just as likely to get a correct result.

Posted by: JC | Nov 18, 2009 6:14:24 PM

JC --

I agree that polygraph tests are unreliable as a general matter, although I am not an expert on the subject. It would appear to have been accurate in this case, however: After being ordered to take it, the defendant admitted that his earlier exculpatory statement was, in fact, a lie.

The real problem here is where it usually is, to wit, with lying defendants, not with heterodox judges.

In addition, there is something to be said for a judge who wants SOME sort of outside evidence to confirm or dispel his intuition that the defendant is lying, since, in any event, the judge can increase the sentence based merely on his belief that the defendant is spinning him. (This was established in a Supreme Court case named Gray or Grayson, I can't quite remember which).

Posted by: Bill Otis | Nov 18, 2009 6:31:46 PM

The case is United States v. Grayson, 438 U.S. 41 (1978). It was a 7-2 decision, joined by, among others, Stevens, Blackmun and Powell. Brennan and Marshal dissented.

Posted by: Bill Otis | Nov 18, 2009 6:41:21 PM

"It would appear to have been accurate in this case, however: After being ordered to take it, the defendant admitted that his earlier exculpatory statement was, in fact, a lie."

That's how they're used, though. Some criminal who is stone guilty is accused of lying. The authorities tell him that they want a polygraph. The criminal thinks that polygraphs actually work, but he figures that if he refuses to take the test it will look like an admission of guilt, so he takes it and hopes that he'll be able to beat it. They give the criminal the test, the test says he's lying (or mistakenly says that he's telling the truth). Whichever way the test comes out, they tell him that he failed because they're convinced (usually correctly) that they have the right guy. At this point, the criminal figures he's sunk and gives them a confession.

Posted by: JC | Nov 18, 2009 6:53:12 PM

Bill. I hear what you are saying but it's like claiming you have made an improvement because you've dumped the bad old practice called scrying and taken up the new path to truth and enlightenment called astrology.

Posted by: Daniel | Nov 18, 2009 7:02:01 PM

Sounds like more than one person in the courtroom forgot about the Fifth Amendment.

Posted by: VG | Nov 18, 2009 7:07:25 PM

I don't know that I would say that it is as bad as flipping a coin. I thought that was only true for open-ended or ambiguous questions.

I thought the accepted accuracy for definite questions was somewhere between 90 and 95%.

Posted by: Soronel Haetir | Nov 18, 2009 8:19:42 PM

No one asks the obvious question. If he told the truth the first time would his sentence be lighter? Not likely. Anyone ever watch "The First 48" on A&E? Homicide detectives try to solve murders within the first 48 hours, real murders, real investigations and it shows interrogations. How do they usually get them to confess? By appealing to their sense of morality! How can that be given they are all supposed to be psychopaths with no moral conscience at all? But then only psychopaths respect the Fifth Amendment. How did that happen? Did our Founders write a pro-psychopath clause into the Constitution?

Posted by: George | Nov 18, 2009 8:41:45 PM

Daniel --

Sometimes you have just the right way of capturing a thought, and this was one of them.

Posted by: Bill Otis | Nov 18, 2009 10:14:31 PM

Ironic. Polygraph, very controversial as truth detector. (I would take the test, demand it be paid for by the state, and defeat it with a couple of drinks before the test. These would make me a little sleepy and attenuate any physiological reaction to lying.)

Strangers on the jury, after excluding all with knowledge, using gut feelings, is accepted orthodoxy to be the most reliable trier of facts. There is no datum to support this supernatural, garbage, lawyer orthodoxy. Far less than for the polygraph.

But then the trial is not about the truth, the facts. That is masking ideology. It is about the competing Broadway fairy tale productions of the lawyers. It is total fiction and garbage, a complete waste of time and money.

Posted by: Supremacy Claus | Nov 18, 2009 11:12:04 PM

"Ironic. Polygraph, very controversial as truth detector. (I would take the test, demand it be paid for by the state, and defeat it with a couple of drinks before the test. These would make me a little sleepy and attenuate any physiological reaction to lying.)"

What say you, SC? You are a well-educated and properly-registered mental health professional. You are in good standing, licensed to practice with full privileges in one of the Several States. Are polygraphs credible? Let's hear your honest answer.

Posted by: JC | Nov 19, 2009 12:22:19 AM

i'd have told the judge to forget it. it's not legal and i will not take one. You can either accept my plea bargain and sentence me as we are here for or kiss off and the plea is out and we'll be off to trial.

Posted by: rodsmith3510 | Nov 19, 2009 2:15:24 AM

The judge may have been using polygraph results in the sentencing phase, to help the offender, and prison is only to help, not hurt nor punish. All findings should be confirmed by real evidence.

If polygraphs are not reliable, and can be easily defeated with any sedative or pill that slows the heart, what are the reliability and validity statistics of the jury trial?

The sociopath has low physiological reactivity. So he can lie without using medication to suppress changes in heart rate or blood pressure.

Outside of a trial, they may be used to bluff sex offenders into stopping their predatory habits. They are good conversation starters if an offender fails the test. In this context of treatment, the polygraph is a tool to help, not punish the offender. There is no harm in that except for the cost.

Opposing conclusions in the literature about the post-trial, clinical use of polygraphs.

Pro:

Br J Psychiatry. 2006 May;188:479-83.
Accuracy and utility of post-conviction polygraph testing of sex offenders.

Grubin D, Madsen L.

St Nicholas Hospital, Gosforth, Newcastle upon Tyne NE3 3XT, UK. [email protected]

BACKGROUND: Polygraphy is used increasingly in the treatment and supervision of sex offenders, but little research has addressed its accuracy in this setting, or linked accuracy with utility. AIMS: To investigate the utility and accuracy of polygraphy in post-conviction testing of community-based sex offenders. METHOD: A self-report measure examined the experiences of offenders with polygraphy. RESULTS: Based on self-report, the polygraph's accuracy was approximately 85%. False negatives and false positives were not associated with demographic characteristics, personality variables or IQ. The majority of offenders found the polygraph to be helpful in both treatment and supervision. Nine percent of offenders claimed to have made false disclosures; these individuals had higher scores on ratings of neuroticism and lower scores on ratings of conscientiousness. CONCLUSIONS: These results support the view that the polygraph is both accurate and useful in the treatment and supervision of sex offenders.

Con:

Int J Law Psychiatry. 2008 Oct-Nov;31(5):423-9. Epub 2008 Sep 11.
Sex offender management using the polygraph: a critical review.

Meijer EH, Verschuere B, Merckelbach HL, Crombez G.

Department of Psychology, Maastricht University, PO Box 616, 6200 MD Maastricht, The Netherlands. [email protected]

Reducing recidivism is a central goal in the treatment of sex offenders. In Europe, there is an increased interest in using the polygraph ("lie detector") as a tool in the treatment and risk assessment of convicted sex offenders. This interest originated from optimistic reports by American clinicians who argued that polygraph testing in the treatment of sex offenders is akin to urine analysis in the treatment of drug addiction. In this article, we critically examine the validity and utility of post-conviction sex offender polygraph testing. Our review shows that the available evidence for the claims about the clinical potential of polygraph tests is weak, if not absent. We conclude that portraying post-conviction polygraph testing as analogous to urine analysis is inaccurate, misleading, and ultimately, risky.

Posted by: Supremacy Claus | Nov 19, 2009 7:03:34 AM

i'd have told the judge to forget it. it's not legal and i will not take one. You can either accept my plea bargain and sentence me as we are here for or kiss off and the plea is out and we'll be off to trial.

I think you're misreading the story. The lenient sentence the defendant was asking for was not part of any plea bargain. The bargain was that the government dropped some charges, and the defendant had already received that benefit. Had he withdrawn his plea (which he probably couldn't by that point), the original charges would presumably have been reinstated, subjecting the defendant to considerably more risk.

Here, the defendant was introducing facts in his own behalf, and the judge wanted to test whether they were true. The defendant was under no legal obligation to take a polygraph. But the judge was under no legal obligation to believe him.

Posted by: Marc Shepherd | Nov 19, 2009 10:29:15 AM

Years ago I asked a doctor if it would be safe to take expired antibiotics. I seem to remember him telling me expired drugs are routinely gathered and resold in Third World countries.

If that's true and the Minnesota judge were to find out about it, I wonder if it would make him angry.

I wonder if the Minnesota judge ever told a lie...or if he's been under the gun on the eve of a prison sentence.

Oh well. It plays well with the torch and pitchfork crowd and that's all that really matters.

BTW if buying an unaffordable house is grounds to deny leniency, then a lot of us better watch our step from now on.

Posted by: John K | Nov 19, 2009 10:56:24 AM

While the polygraph discussion is interesting, everyone is missing the real story which is the Judge who has a long history,known to those who practise before him, of hating being lied to, or defendants who minimize in any way their crime. At the same time he also is ultimately not mean spirited in punishment and holds the Goverment accountable for its unreasonableness. He also is known to order mid-sentening tests for drug use, and in one instance ordered a breathalyzer for a witness before allowing him to testify. In all, an interesting Judge.

Posted by: ++scott tilsen | Nov 19, 2009 11:07:36 AM

John K --

Unless I am misreading your post, you are saying that it's OK for a defendant to lie at sentencing. Is that your position?

If it is, there's not much I can say. The entire criminal justice system depends on the ability to compel litigants to be truthful, whether or not it's in their interest.

If it's not -- that is, if it is NOT OK for defendants to lie at sentencing -- why would it be improper for the judge to weigh the defendant's in-your-face deceitfulness in deciding what the sentence should be? Doesn't a defendant's refusal to come clean say something about his attitude? And isn't his attitude an important factor (if not THE important factor) in trying to decide how much risk there is that he'll do it again?

Posted by: Bill Otis | Nov 19, 2009 11:20:04 AM

rodsmith3510 --

"I'd have told the judge to forget it. it's not legal and i will not take one. You can either accept my plea bargain and sentence me as we are here for or kiss off and the plea is out and we'll be off to trial."

There might be better ways of insuring you'll get maxed out, but offhand I can't think of any.

Posted by: Bill Otis | Nov 19, 2009 11:25:21 AM

Lets see here!!! A polygraph is only good when someone fails the test. But if a person passes the polygraph than it is not considered any good. So for example. SEX OFFENDERS are reguired to take polygraphs in treatment programs. IF they pass NO BIG DEAL. BUT if they fail the polygraph than they take the risk in going to jail. BUT yet a polygraph is not used in court but it is used as evidence. HMMM!!!!

Posted by: BYRON | Nov 19, 2009 12:31:31 PM

lol loved this one!

"John K --

Unless I am misreading your post, you are saying that it's OK for a defendant to lie at sentencing. Is that your position?

If it is, there's not much I can say. The entire criminal justice system depends on the ability to compel litigants to be truthful, whether or not it's in their interest.

If it's not -- that is, if it is NOT OK for defendants to lie at sentencing -- why would it be improper for the judge to weigh the defendant's in-your-face deceitfulness in deciding what the sentence should be? Doesn't a defendant's refusal to come clean say something about his attitude? And isn't his attitude an important factor (if not THE important factor) in trying to decide how much risk there is that he'll do it again?

Posted by: Bill Otis | Nov 19, 2009 11:20:04 AM"


ESPECIALLY this part!

"The entire criminal justice system depends on the ability to compel litigants to be truthful, whether or not it's in their interest."

where HAVE you been the last 20 years or so. Sorry today it's perfectly LEGAL for the state to lie, cheat, defraud DO ANYTING they can dream up to GET A CONVICITION. So sorry telling the defence they are to be punished for doing the SAME is as criminal as it laughable.


Posted by: rodsmith3510 | Nov 19, 2009 10:08:43 PM

rodsmith3510 --

"[W]here HAVE you been the last 20 years or so[?]"

For about half that time in the USAO for the EDVA as head of the appellate division, and for four years as Counselor to the head of the DEA. A bit of adjunct teaching at George Mason Law School. And a few other things here and there.

So now let me ask you the same question: Where have YOU been for the last 20 years?

I can tell you one place you haven't been, and that is in federal court day-to-day to watch what goes on there. If you had been, you'd know full well that your rant is absurd.

One other question as well: Do you think it's OK for the defendant to lie at sentencing? My answer is no. Is your answer yes?

Posted by: Bill Otis | Nov 20, 2009 11:14:23 AM

Bill--

It's not OK to lie at sentencing. No.

Neither is OK to feign anger when a frightened, apprehensive, under-the-gun citizen does something we've all done (maybe except for Jesus) at some point...lie.

To the judge's credit, he didn't indulge the prosecutors blood lusts by imposing an even longer sentence for a man accused of doing what (if my understanding is correct) Big Pharma does somewhat routinely...selling expired drugs.

Posted by: John K | Nov 20, 2009 6:54:21 PM

John K --

Three points. First, it's true that everyone lies. It is not true that everyone lies under oath in federal court. My guess is that maybe one one-hundreth of one percent of the population has done that.

Second, it wasn't a lie borne of fear. It was a lie undertaken in the hopes of fleecing the judge into giving a lighter sentence than otherwise would have been the case.

Third, it is not "bloodlust" (or "human sacrifice," to recall one of your earlier phrases for the same thing) for a prosecutor to seek a sentence well within what the law provides.

At this point, I feel like I should ask: Do you think there should be prosecutors at all? If the answer is "yes," what do you think they should do? In this country, we have an adversarial system of justice, created out of the belief that the truth is more likely to emerge if two OPPOSING sides present their cases. It often seems to me that you don't want the prosecutor to oppose the defendant, but instead to roll over for whatever the defendant wants or demands.

That may be many things, but an ADVERSARIAL system of justice it is not.

Posted by: Bill Otis | Nov 21, 2009 3:22:21 AM

Sure it's an adversarial system, Bill, but it's not even close to being a fair fight...except perhaps for those rare, rich defendants who can afford dream-team lawyers.

And even then it's not a fair fight.

Of course we need prosecutors, but prosecutors need to be more accountable for how they use the terrifying powers they possess.

Posted by: John K | Nov 21, 2009 6:08:14 PM

John K --

I would still be interested in knowing what, exactly, you think prosecutors should do. Should they be less committed and enthusiastic than defense counsel? Do they owe their client a lesser duty of fidelity than defense counsel owes his? If they have an objectively reasonable belief that the defendant is guilty, and the evidence to back it up, why should they turn away from any legal means of proving their case?

Of course none of this is to say or imply that prosecutors should play dirty. Indeed they should take care to be straight up with opposing counsel (not to mention everyone else). In return, they should expect others, including defense counsel, to be straight up with them.

When I was in the USAO, I encouraged my colleagues to provide open file discovery, even though under Brady, Giglio and DOJ policy, only exculpatory evidence need be disclosed, not the whole file. The reason I encouraged this is not that I wanted to be Mr. Nicey with the defense. It was that I didn't (and don't) view it as a game. If you want to get at the truth, Rule No. 1 is provide it yourself.

Time and again here I have seen you harshly criticize prosecutors (generally in broadbrush and florid terms) for seeking sentences well within the law. But if prosecutors are wrong to pursue stern sentences, who's going to do it? Is there no place in the courtroom for voices other than those calling for leniency?

Posted by: Bill Otis | Nov 22, 2009 12:47:36 AM

Real nice.. Much appreciated. Always loved this type of stuff...

Posted by: Syd Bousketi | Jan 28, 2010 9:57:04 PM

Real nice.. Much appreciated. Always loved this type of stuff...

Posted by: Syd Bousketi | Jan 28, 2010 10:16:40 PM

Hi I am just a U.S. Citizen,
Personally I do not understand how some common Joe can be expected to be better than his peers.
Being dishonest is not just a occurrance with the common poor. If you ever listen to our representatives or any other politicians it is more common than the truth and these people are not fighting for their lives, just a few more bucks in their pockets.
I understand that the Judge was looking for the truth, but on the other hand is he not supposed to be impartial and non discriminatory. I mean really when is the last time you ever heard of a prosecutor being punished by a Judge for being less than honest during a trail?
It is easy to attack someone who does not know the law and has to rely on a attorney to represent him and hope that the attorney does his job, which does not always happen and as for the prosecutor, well if they screw up it just a woops day and all they have to say is "I still think they are guilty." and move on with their day, while someone's whole life is changed forever.
The whole justice system is just one big business with its prisons for profit and justice for sale to the highest bidder and best connected.

Posted by: Donald | Mar 9, 2010 10:05:49 PM

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