Monday, August 5, 2013

The Catch 22 of Virginia Mandating Polygraphs and Therapy Sessions for Registered Sex Offenders and the Ability to Advance Through “Treatment” of SVP’s in Civil Commitment

Most Virginians have no idea today’s Justice System is specifically set-up to force plea bargains from more than 94% of those charged with a crime because our state, our government doesn’t care about innocence or guilt, just conviction rates and saving the state from the high cost of trials. Innocent citizens facing mandatory minimum sentences, tens of thousands of dollars for legal representation and bail plus the fear of losing their job, home and family fall for the ploy of stacking charges and delaying hearings. Until you personally experience it, you don't give it a second thought, you think it's not even a possibility.

Less than 4% of Virginians make it to trial due to fear, lack of money or ignorance of the system. They take an Alford or Guilty plea deal if offered (and it usually is), because it’s the lesser of the two evils (to be allowed to go home, keep your job and your family OR be sent to prison for 5, 10, 15, 20 years or maybe life and lose everything).

In the eyes of the public and our lawmakers they took the deal so they must be guilty. 

Unless it makes it onto a Dateline or a 20/20 show we seem to forget that there are people who are mis-identified by incorrect or tainted witnesses, those who falsely confess to a crime they did not commit, investigations that are contaminated or run improperly and evidence that was incorrectly tested or ruled-on by labs or expert-witnesses.

We’ll never know how many of our citizens who have been convicted in Virginia are actually innocent, wrongly convicted.

Just like we’ll never know how many innocent Registered Sex Offenders are forced to weave tales about a crime that they never committed. Forced to admit events and details by the Commonwealth otherwise they’ll go [back] to prison for not being forthcoming.

Nonsense you say.............

On July 7th Wrongful Conviction Blog posted an article The ‘Catch 22′ of Parole for the Wrongfully Convicted . It reminded me of two similar points that I have previously made to State lawmakers and the media here in Virginia over the last 5 years, I contacted the author to share these points.

In Virginia we’ve had a few recently publicized cases of innocent citizen’s being convicted of sexual crimes including false accusations, witness misidentification and bad forensic work. Like Thomas Haynesworth, Marvin Anderson, Bennett Barbour, the Norfolk 4, Edgar Coker Jr. and Jonathan Montgomery (just to name a few).

They committed no crime, but they were convicted by our justice system. They were/are all listed as Registered Sex Offenders and mandated to abide by all the restrictions and regulations imposed upon sex offenders. 

#1- In Virginia Registered Sex Offenders who are incarcerated in some state facilities or who are under probation supervision are mandated by a Department of Corrections policy to submit to regular polygraph testing. They are also mandated to participate in Sex Offender group or individual therapy sessions. The therapy sessions are an additional out-of-pocket expense for the offender as is a failed polygraph.

Even though the U.S. Supreme Court has ruled “There is simply no consensus that polygraph evidence is reliable” and “Unlike other expert witnesses who testify about factual matters outside the jurors’ knowledge, such as the analysis of fingerprints, ballistics, or DNA found at a crime scene, a polygraph expert can supply the jury only with another opinion.”

Polygraph results are inadmissible in Virginia courts because they are so thoroughly unreliable as to be of no proper evidentiary use whether they favor the accused, implicate the accused or are agreed to by both parties.

It is a pseudo-science purposely shrouded in mystery. We might as well convict, incarcerate and civilly commit based on a coin flip it's just a reliable. Or unreliable however you choose to look at it.

The polygraph is a catch 22, you are damned if you do and you are damned if you don’t because the results are as reliable as a Magic 8 Ball and if you refuse the state is going to take control of you. Innocent people will fall victim to the test and guilty people will not be discovered.

But if an RSO (Registered Sex Offender) refuses to submit to the polygraph, refuses to admit to the acts that led to their wrongful conviction or refuse to talk about the offense that never happened in therapy they can face revocation of their Probation and be sent back to prison.

If the short-list of known innocents (above) had maintained their innocence while being mandated by VA-DOC to subject to a polygraph then the state would have claimed they weren’t cooperating, that they were in denial or they must be hiding additional crimes that they have not yet been convicted for. What about those who have not been found wrongly convicted? They aren't in denial, they aren't hiding anything because they didn't commit the original crime they were convicted of.

The system is wearing two faces; on the one, it will imprison or commit those "found out" by the polygraph; on the other, it refuses to accept lie detector evidence from those claiming to be wrongfully convicted, who have passed polygraph tests with flying colors. Hypocrisy? Yes.

#2- In Virginia there is Civil Commitment of Sexually Violent Predators (SVP) after their prison sentence has run its course.

Virginia’s SVP Civil Commitment “treatment” mandates full disclosure or treatment will be hindered, meaning that all RSO’s in civil commitment must choose to incriminate themselves to advance through the system to one day be released or refuse to participate and rot at the Virginia Center for Behavioral Rehabilitation (V.C.B.R).

The Fifth Amendment to the United States Constitution protects witnesses from being forced to incriminate themselves. To force offenders in DOC facilities or under DOC supervision to submit to a polygraph for a “fishing expedition” seems to be a violation of the Fifth Amendment.

As for civil commitment of SVP’s I don’t personally believe the state of Virginia believes in this “treatment” they just want an excuse to confine as many RSO’s for as long as possible after they tapped out the criminal justice systems time constraints. After all prison is significantly cheaper than civil commitment.

So in addition to parole of the wrongly convicted being a Catch 22 we can add state mandated polygraphs and therapy sessions of Registered Sex Offenders plus Civil Commitment of SVP’s.