by Jim Wygant
Despite such travesties of justice, voice stress analysis continues to be used by some law enforcement agencies who refuse to recognize the potential for grave mistakes and consequent litigation, or to accept years of research that show results no better than flipping a coin.
6. Thieves Among Us
Some people are just plain stupid. How could any sensible person do what Wayne Gifford did? Wayne was released from jail in the late afternoon. The jail is located in downtown Portland, so Wayne naturally hung around downtown, maybe to see how fast he could get into trouble again.
Night fell, the stores closed, and Wayne kept hanging around. If a guy hangs around long enough, something interesting is bound to turn up. After midnight, when the glare of street lights fell on empty sidewalks, a truck pulled up at the back side of the trendy clothing store and began to disgorge a cargo of clothing that included fur coats.
The workers hustled back and forth between the truck and the store’s interior. For a brief period, probably no more than a minute or two, the loading dock was unattended. When the employees returned, someone immediately noticed the conspicuous gap in the rack of fur coats. Store personnel quickly called the police.
Figuring that someone struggling with an armload of bulky fur coats could not have gotten far, several police cars zipped up and down the streets around the store – until they found Wayne struggling under his burden.
Wayne said he had found the coats on the street and was looking for a police car so he could turn them in. He was sure glad that the officers had shown up when they did. And he wished them good luck in their search for the thief.
Wayne must have hoped that he could simply stroll off at that point, but the police officers had other ideas. Within a short time Wayne was back in the same jail he’d left only a few hours before.
When I saw Wayne he repeated the same goofy story. I always like to remind myself that anything’s possible, but this was a real stretch.
Wayne’s attorney had asked me to test him. This did not mean that the attorney believed his client. I don’t know any good criminal defense attorney who needs to believe in his client’s innocence in order to defend him. A defense attorney’s primary task is to assure that his client’s rights (and, by extension, those of everyone else) are not violated, and to assure that no evidence goes unchallenged.
Attorneys request polygraph tests usually because they hope (but do not necessarily believe) that a client is truthful. After I report lying, attorneys often tell me, “I’m not surprised.” But the possible benefit of truthful results makes the test worthwhile. A criminal case may be dropped or reinvestigated if a polygraph test on the defendant indicates truthfulness.
Wayne was not so lucky. He flunked his test. I didn’t follow his adventures after that. I don’t know what happened in court, although statistically the odds are that he was either convicted or pleaded guilty. Given his particular level of unmitigated stupidity, it is also likely that Wayne went on to commit other foolish and self-destructive criminal acts. I could not imagine him rising to anything of any greater threat to society, since he had neither the imagination nor the hostility for greater evils. He was a lazy opportunist.
Most of the other thieves I’ve met have also been opportunists, though usually surrendering to temptation only when the potential reward seems to them to be greater than the risk, and the opportunity to be fading quickly. When it’s “now or never,” the common thief usually chooses now. That he has habitually misjudged both the reward and the risk through a sorry chronology of life experiences never occurs to him.
I distinguish common thieves from burglars. They are not opportunists but are generally quite deliberate in their determination to break into a house or business. When a burglar is caught it is usually in the act, still inside or just leaving, so there is little left to deny. Beyond that, most burglars work a plea bargain. What they bargain with is all of the other unresolved burglaries they have done. It is the rare burglar who has done only the one for which he was arrested. The police know that, and they have a natural bureaucratic tendency to want to close as many unresolved files as possible, so it is not unusual to arrange a plea that is contingent upon the burglar admitting all of his past break-ins, with a promise of immunity against prosecution on those. The burglar pleads guilty to the one for which he was arrested, the police can close a bunch of other files, and the judge and District Attorney avoid tying up the courts with a trial. The services of a polygraph examiner are not usually required.
The thieves I’ve seen have been mostly petty shoplifters and embezzlers, both prime examples of opportunists. The majority seem to be women.
There is not much to say about the shoplifters. They all have the same story, “I meant to pay for that item but I forgot I had it.” They are less adept at invoking a reasonable explanation for how the item got into their purse or pocket or bag of other items that had already been paid for.
However, it is not only amateurs who make up silly explanations. I once tested a police officer who was accused of stealing a paperback book that had a retail value of only a few dollars. The officer was off duty at the time and dressed in civilian clothes. When a store clerk saw him and began to approach, the officer ran away, leading a lengthy pursuit, during which he unloaded the book. When the store clerk caught up with him, the officer said that he had only been running because the clerk was chasing him.
Shoplifters steal anything: lipsticks, sweaters, swimsuits, anything that can be worn, pocketed or stuffed into something else. I tested a young man who had been sticking packages of meat down the front of his pants. The irony of most shoplifting complaints is that the thief usually carries enough money to have paid, if he had chosen to. So why didn’t he?
The shoplifters I have met fall into two categories: the thrill seekers and the emotionally starved. The thrill seekers steal because they want the excitement of doing something prohibited. They derive satisfaction from asserting what they believe to be their superiority over others, as demonstrated by their ability to make fools of store clerks. When they are caught they often become hostile with store personnel and threaten to sue, which gains them nothing. If they physically resist they may only succeed in raising the seriousness of the offense from simple larceny to robbery, which carries a much greater penalty. When shoplifters appear for their polygraph tests, they often characterize themselves as victims of the evil store. Their attitude is, “even if I had stolen that item they had no right to treat me that way.” Many of these shoplifters are genuinely surprised that they have been detained in a public parking lot by a store security officer, and that they are then physically escorted into a dingy back office that usually doubles as a storeroom, where they must wait for the arrival of the police.
Those who are motivated by obvious emotional problems are certainly more likely to arouse a little of our sympathy. They are usually identifiable by what they steal and how they do it. The merchandise itself is likely to be small and of little value, a lipstick, a nail file, items of insignificant size and worth. The method is often so careless that it seems to invite discovery. I have met women of substance who shoplifted, I believe, to regain the attention of husbands they said ignored them. The act of stealing is often so blatant that I suspect at some level of consciousness these people probably wanted to be caught. However, once that happens they usually acquire the services of the most expensive criminal defense attorneys, men in $800 suits who require retainers of thousands of dollars to argue in court about the theft of a nail file. Loneliness is a pathetically confused reason for committing a crime, but for some of us it is no less compelling than anger and spite are for others.
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Considering only the amount of loss, embezzlers are the worst kind of thieves. They can destroy a business and wipe out the jobs of all of their former co-workers. An embezzler is a trusted employee who cynically betrays the boss’s faith by stealing money repeatedly over a period of time. The individual thefts are usually
in amounts that do not exceed $100. The loss may remain undetected until a company check bounces or the payroll cannot be met. By then, it may be too late to save the business, and the stolen money has almost certainly been spent. Typically it goes for travel, clothes, fine food, the kind of high living that the thief could not afford with her or his own money.
Looking over only a few recent embezzlement files I find reported losses of $84,000, $170,000, $150,000. These are necessarily estimates because by the time the theft is discovered no one knows the true total. The business owner has no way to calculate what amounts were pocketed and never written into his books, because the thief was also in charge of keeping the books. And the embezzler tends to visualize the relatively small daily or weekly increments, rather than a grand total.
While the basic motive of the embezzler is greed – as judged by the extravagant ways in which the money is usually spent – the confessed thief usually asserts the excuse of unfair treatment. “They owed me the money.” The thief may claim to be underpaid, or to have worked extra hours without reward or recognition, or to have been passed over for advancement. In fact, such claims from a suspect, when accompanied by a denial of theft, are often a tipoff that the employee is lying.
As the owner of a polygraph business, I have been surprised that other business owners will blindly entrust all the proceeds of their work, their bank accounts and daily receipts, to someone they know little about. It makes as much sense as asking a neighbor to be a co-signer on your personal checking account and then allowing him to keep the checkbook for you.
Once the employer has made that first mistake, he often compounds it. The typical victim does not ever review the employee’s work, as though any routine monitoring might be a betrayal of trust owed by the business owner to his or her hired bookkeeper. Most honest employees would probably welcome a periodic check that validated their work and relieved them of some responsibility. Embezzlers certainly would prefer the opposite. Unfortunately there are many decent but naive people running small businesses who do not want to be troubled with keeping accounts, no more than they want to try to balance their personal checkbook. They unwittingly provide an opportunity for embezzlement.
Compared to other thefts, there is a particularly shabby aspect to embezzlement – the repeated betrayals, the relentless dipping into the till, like an addict who can’t resist getting high once again. Of more interest to me have been individual one-time thefts from businesses. They are more like mysteries – inviting an effort to find a thief hiding among many several innocent suspects. While employers once relied upon polygraph to help them solve such mysteries, federal and state laws now make it virtually impossible for ordinary non-government employers to test employees about internal thefts.
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Employee thefts account for millions of dollars in losses to business every year. Retail businesses refer to “shrinkage,” meaning loss of merchandise to unknown causes, primarily internal theft and shoplifting. The amount lost exclusively to stealing by employees is believed to account for the greatest part of shrinkage, although that remains a theory that is based upon admissions and anecdotes from store owners.
Retail businesses allow for shrinkage in the price that they put on the merchandise. The catch is that they can only allow for a limited amount of shrinkage. Competition denies them the opportunity to cover losses by raising prices to something greater than the average charged by other stores for the same goods. Losses that become greater than average can destroy a business as effectively as embezzlement.
Several years ago I periodically tested employees of a retail stereo store to see if they had stolen anything since the last test. The tests were done about every six months, and the store owner said that once he had initiated the testing program his shrinkage had declined noticeably. He got the employees to go along with the program by instituting profit sharing, so part of the increased profit went directly back to the employees as bonuses.
There was some grumbling about the tests, but everyone realized that the store held a huge inventory of very expensive items, most of which could easily be carried out by one person.
In 1979 state law changed in Oregon, prohibiting those tests entirely. I attended the legislative hearings and understood that the senator behind the bill, who was associated with a local labor union, did not like polygraph in any form. He argued that it was an infringement on employees’ rights to ask them to take a polygraph test. As far as he was concerned there was no such thing as a voluntary test of an employee. He brushed aside the argument that in many thefts polygraph provided innocent employees with a degree of protection from suspicion and arbitrary decisions. He was cautioned that employers who had no resources to resolve theft, except their own judgment, might either fire the wrong suspect or get rid of all employees who were equally suspect. No one testified that he or she had been unfairly fired because of polygraph, but several people testified that polygraph had helped them keep their jobs. The senator was unwavering in his conviction and was influential among his colleagues. The bill passed into law and proved to be only a forerunner of similar legislation that came out of the U.S. Congress a few years later.
The impact on the stereo retailer was swift and devastating. About six months after the tests were prohibited I received a frantic call from the woman who was co-owner and general manager.
“We’ve got a serious problem,” she said.
“I’m sorry,” I told her, “but there’s nothing I can do.”
“Come over and talk about it,” she pleaded.
I went to the store and met with the woman in her office, but I had no expectation of doing anything. I considered my visit only a courtesy.
“We’re missing a lot of inventory,” she said.
“How much?”
“It amounts to a semi-truck load.”
A semi-truck load is one of those forty-foot long trailers that get pulled up and down our freeways by truck drivers who are always too close to your rear bumper. That’s a lot of stereos and a lot of money.
“You don’t mean all at once, do you?” I asked.
“We don’t know, but that doesn’t seem possible. We think it’s more likely that somebody has been carrying stuff out the back door on a regular basis since we stopped doing polygraph tests.”
She wanted to know what to do. As we talked it was evident that the company’s rapid growth to a chain of several stores had not been matched by necessary management changes. They had never revised the rudimentary inventory procedures that had been barely adequate when they had been only one small store. The loss had gone undetected until it had reached an enormous amount.
That it could happen did not surprise me. Before the law changed I had tested one of their employees who ultimately admitted that he had backed his car up to a freight entrance and piled in several thousand dollars worth of sound equipment. He had driven off unnoticed and was caught only when he foolishly tried to sell some of the goods on the street. He was one person, one time. It was easy to imagine what several employees might accomplish over an extended period of time.
I could only recommend hiring a private investigator to work undercover. New inventory procedures had already been initiated, but the chances of recovering the loss were slim. In fact, the business never recovered. Over the next few years some of the stores in the chain were closed and the business was put up for sale. For a long time there were no takers. The place had the stink of failure about it. When a new owner finally materialized, he was unable to revitalize what had once been a thriving retail business. The company soon went bankrupt, resulting in closure of the remaining stores and dismissal of all of the employees.
In 1988 Congress passed a federal law that had the effect of eliminating most employee tests, even if employees volunteered. Although that law purports to establish a procedure for doing polygraph tests of non-governmental employees, the rules are so complex and restrictive that they amount to a virtual prohibition. Typically, Congr
ess exempted itself and its own employees from the protection deemed so important for everyone else.
7. Rape Suspects
When more than one person participates in the same crime, prosecutors and defense attorneys usually want to know exactly what each co-defendant did. That information may influence what kinds of plea bargains to offer or seek, if any, or whose testimony to solicit against the others. In a crime of violence where most of us would simply dismiss all of the co-defendants as morally bankrupt, lawyers demand more precise distinctions. A band of low-life criminals may all be equally corrupt, but once they have been arrested there will be a scramble to learn what each said before, during, and after the commission of the crime, where each located himself among the others, what he held in his hands, what kind of physical contact he had with the victim. Polygraph examiners are often asked to help make those distinctions.
There might be a better way for justice to proceed than this focus on reducing a single great lump of evil to its individual components. Regrettably, I have never heard anything better proposed. We all recognize that the fine distinctions required in a criminal prosecution often have little to do with true guilt or innocence. Police reports and the words that spill carelessly from a client’s own mouth will confirm that the client began his misadventure on equal footing with his co-defendants. It is often apparent that only chance or opportunity led one co-defendant to deliver a fatal blow while another stood watching. In another place, another time, the roles could easily have been reversed. They are bad persons who are predisposed to do bad things. But the law requires that they be held accountable only for as much as can be proven in the offense under consideration.