Polygraph Therapy Faces Scrutiny in Child Porn Case

MANHATTAN (CN) — After a critical hearing in New York, a spotlight is taking shape on the utility of “therapeutic polygraphs,” a treatment the U.S. probation system has used for decades on sex offenders.

The challenge erupted from a call by Assistant U.S. Attorney Drew Rolle for the court to make sex offender Richard Llanga Moran take a polygraph as a condition of his supervised release.

After serving an 18-month sentence for possessing more than 6,000 photographs and videos of child pornography, Llanga Moran had faced regular therapy sessions as a condition of his five-year term of supervised release.

The therapist he meets with regularly has found Llanga Moran “forthcoming and engaged in sessions,” but prosecutors want a so-called lie-detector test to determine whether Llanga Moran has accepted responsibility for his crime.

Llanga Moran drew the government’s skepticism with his insistence that there is an innocent explanation for the start to his habit. He said he had been trying to download Madonna’s “Like a Virgin” on a file-sharing service, when he stumbled upon the pornography that he found “morbidly intriguing” rather than sexually arousing.

Assistant U.S. Attorney Drew Rolle wants a court-ordered polygraph, but U.S. District Judge Kiyo Matsumoto appeared reluctant to grant such relief on June 13 after putting a psychiatrist, a probation officer and several attorneys in the hot seat at a three-hour hearing.

 

“One Piece of the Clinical Puzzle”
Taking the stand first was psychiatrist Naftali Garcia Berrill, the executive director of the New York Center for Neuropsychology and Forensic Behavioral Science. Operating under the trade name New York Forensic, the firm has contracted for 22 years with the federal probation department.

Berrill estimated that he receives about half of its patients from the government, and that he recommends polygraph testing “almost 100 percent” of the time for convicted sex offenders referred as patients.

“If it’s not a sexual compulsion, we’re not talking polygraph at all,” Berrill said, clarifying that he does not use test for drug addicts or compulsive robbers.

Without a polygraph, Berrill said: “The therapists think, ‘Everything’s fine,’ when maybe that’s not the case.”

Calling the technology “one piece of the clinical puzzle,” Berrill burnished the treatment’s credentials through a treatment manual published by ATSA, short for the Association for the Treatment of Sexual Abusers.

Berrill himself boasts impressive credentials, with 30 years of practice under his belt, a doctorate from Vanderbilt University, a professorship at John Jay College for Criminal Justice, and several stints as an expert witness.

But Llanga Moran’s attorney Samuel Jacobson, with the Federal Defenders of New York, argued that that Berrill and ATSA are dressing up law-enforcement practices as treatment.

Even ATSA’s acronym on “sexual abusers,” Jacobson said, smacks of “partisan law-enforcement” language rather than clinical terminology.

“It seems like an awkward term to me,” Berrill acknowledged.

Jacobson has argued that Berrill shifted his treatment recommendation to conform to the government’s wishes. Several months after finding “no indication that [Llanga Moran] is sexually attracted to underage males or females” in his intake report, Berrill warned the judge that a polygraph was needed to break through his patient’s “denial and resistance,” according to an unsealed defense memorandum.

That advice appeared to contradict the observations of Mariquez Garcia, another New York Forensic therapist who regularly treated Llenga Moran. In her monthly reports, Garcia described Llanga Moran as “forthcoming and engaged in sessions.”

 

A Reputation Forged in Fiction
Testifying for the defense, however, psychiatrist Sasha Bardey argued that polygraphs undercut the purpose of therapy.

“On one hand a great deal of trust is required to get the client to open up about what is going on in their psyche,” Bardey wrote in a 2-page letter, “on the other, the need to protect the community at large against any recurrences of the underlying behaviors. In such a setting, a blunt tool like the polygraph, with all its associated anxiety, would add further resistance to treatment, encourage nondisclosure, and negatively impact on the therapeutic alliance essential for successful and meaningful treatment.”

Harvard-educated Bardey has been a technical adviser for several of television’s popular crime dramas including “Law and Order,” “Wonderland” and “The Killer Speaks,” even appearing as an actor on some of these shows.

Although lie-detector tests have caught many criminals on the silver screen, Bardey noted that their real-life use is much more complicated.

“As with any other test, polygraphs have a rate of false-positive — that is test results that indicate deception when none exists,” he said. “At most, the polygraph has been deemed to be 80 percent-to-90 percent accurate, meaning that up to 1 in 5 patients submitting to the test will be found, wrongly, to be lying.”

In a treatise “The Truth About Lie Detectors,” the American Psychological Association emphasized there is “little evidence that polygraph tests can accurately detect lies” because there may be no link between physiological reactions to deception.

Questions about the polygraph’s accuracy did not come up at Tuesday’s hearing, where the government’s witness had to dance gingerly around his discussions with Llanga Moran.

When psychiatrist Berrill tried to speak about his intake session, Judge Matsumoto chided the witness not to reveal private medical information in open court.

“I can’t think of anything more disruptive to that relationship of trust and openness,” she said.

Courthouse News obtained heavily redacted defense documents in response to an unsealing request.

The defense’s psychiatrist witness, Bardey, called probation’s polygraph regime equally damaging to the therapist-patient bond.

“Using it in that fashion will only break what little, fragile therapeutic alliance there is,” he wrote. “Faced with a false finding of deception in a polygraph, imagine the therapist accusing his patient of lying, this is not therapy.”

 

Sex-Offender Treatment, an Evolving Field
In New York, two convicted sex offenders who refused to take a polygraph were later compelled to do so by the U.S. Court of Appeals for the Second Circuit.

Both cases — U.S. v. Johnson and U.S. v. Parisi — involved repeat offenders convicted of physical sexual abuse, whose therapists found they had resisted treatment.

Calling these men “hands-on” offenders, Matsumoto emphasized that Llanga Moran’s offense was serious, but he belonged in a much lower category.

Jacobson, the defense attorney, warned that the court ordering his client to take the polygraph in this case could set a bar for it to become a mandatory federal standard in all sexual-offender cases, rather than the most troubling ones.

During cross-examination, Jacobson asked Berrill whether he had patients take a plethysmograph – a device that measures blood flow to the penis while forcing a patient to watch various types of illicit pornography.

Banned just three years ago after the Second Circuit found the test “extraordinarily invasive” and medically dubious, the plethysmograph was a standard part of sex-offender treatment in many states along with the polygraph.

Laying out the plethysmograph’s sordid history in Soviet-era Czechoslovakia, the Second Circuit noted that the test was used to detect “sexual deviance,” which in practice involved persecuting and attempting to “cure” homosexuality.

Berrill said he did not use the plethysmograph, which he criticized mostly on practical terms, noting that the device would be useless in determining the sexual attractions of an impotent patient.

He also insisted that he does not aim to trip up a patient.

“It’s not our goal or intent to find out information that will result in new charges being filed against the person,” the psychiatrist testified.

Llanga Moran’s probation officer, Craig Schneider, testified that he believe polygraphs are at the core of what sex-offender treatment in New York.

Pressed about the expense of the test by Judge Matsumoto, Schneider estimated that each polygraph costs $2,000 to administer.

Judge Matsumoto also questioned Berrill about how much of his business comes from the probation office treating it as mandatory.

The judge’s decision on the case is expected to resolve only whether a polygraph should be mandatory for Llanga Moran, meaning that polygraphs will continue to be a regular staple of sex-offender treatment in New York federal probation.

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