Wednesday, November 7, 2007
In a case that seems like it could form the basis for an episode of CBS' "Cold Case," a judge yesterday declared a mistrial after a polygraph examiner testified that one of the defendants failed his polygraph test. In 1977, the beaten and beheaded body of 16 year-old Cheryl Fossyl was found at the foot of a bridge in Ohio. The case went unsolved for over a decade and was finally reopened by Brown County Sheriff Dwayne Wenninger when he took office in 2001.
Following up on his pledge to look into cold case files, Wenninger assigned Captain Barry Creighton to the Fossyl case. What Creighton learned was that as former Brown County resident Jean Ann Chin was dying of cancer, she made a death-bed confession that she was at the scene of the Fossyl murder. This confession led Creighton to several other suspects, including now 55 year-old Thomas Watson and now 53 year-old Mike Milligan.
A polygraph examiner tested Watson, who broke down after the test, admitted he was with Cheryl Fossyl when she died, and indicated that he wanted to make a deal. According to the polygraph examiner, Watson also failed the polygraph test.
Based upon this and other evidence, Fossyl's family brought a wrongful death suit against, inter alia, Watson and Milligan, claiming that they were not only involved with Cheryl's murder, but also conspired to cover it up. Yesterday during the trial of that lawsuit, the polygraph examiner propelry testified to Watson's confessions after taking the polygraph test, but he also impermissibly testified that Watson failed the polygraph test. Based upon this prejudicial and inadmissible testimony (in addition to jurors improperly discussing the case), the judge declared a mistrial, with the jury selection process needing to be conducted anew.
In my opinion, the judge made the right decision because polygraph evidence is generally inadmissible and obviously Watson would have been highly prejudiced by the testimony that he failed a polygraph test. Indeed, in the vast majority cases where prosecutors have introduced polygraph results at trial, appallate courts have reversed convictions. I did, however, find at least one Ohio case where a court held to the contrary.
In State v. Wolf, 246 N.E.2d 365 (Ohio 1969), the Supreme Court of Ohio upheld a defendant's conviction despite the admission of evidence that he failed a polygraph test when the trial judge immediately gave a curative instruction for the jurors to ignore the evidence. It seems to me that the cat was already out of the bag at this point, but the court ruled that this curative instruction rendered a mistrial unnecessary.
Interestingly, I flagged an article a few weeks ago that states that while polygraph evidence is inadmissible in court, employers are increasingly using the test to screen job applicants.