US v. Ailsworth, 94-40017-01-SAC
| Decision Date | 12 December 1995 |
| Docket Number | 94-40017-02-SAC,94-40017-06-SAC and 94-40017-07-SAC.,No. 94-40017-01-SAC,94-40017-01-SAC |
| Citation | 914 F. Supp. 426 |
| Court | U.S. District Court — District of Kansas |
| Parties | UNITED STATES of America, Plaintiff, v. Jessie AILSWORTH, Jr., a/k/a "J.C.", Undra P. Mock, George Stewart, Jr., a/k/a "Pigg," and Calvin Conway, Defendants. |
Joseph D. Johnson, Joseph D. Johnson, Chtd., Charles D. Dedmon, Office of Federal Public Defender, Topeka, KS, for Jessie Ailsworth, Jr.
F.G. Manzanares, Jerold E. Berger, Topeka, KS, for Undra P. Mock.
James G. Chappas, Jr., Topeka, KS, for Kenneth R. Torain.
Mark L. Bennett, Jr., Bennett & Dillon, Topeka, KS, Benjamin C. Wood, Lawrence, KS, for Arnett Louise Rice.
Matthew B. Works, Works, Works & Works, P.A., Topeka, KS, Amy C. Bixler, Alan G. Warner, Topeka, KS, for Terrance J. Douglas.
Stephen W. Kessler, Topeka, KS, for George Stewart, Jr.
Jeannine D. Herron, William K. Rork, Topeka, KS, for Calvin Lee Conway.
Gregory G. Hough, Office of United States Attorney, Topeka, KS, for U.S.
On July 20, 1995, the court entered a memorandum and order granting in part and denying in part the defendants' "Motion to enforce plea agreements or in the alternative set aside pleas" (Dk. 495). See United States v. Ailsworth, 899 F.Supp. 511 (D.Kan.1995). In that memorandum and order, the court concluded that the government had not complied with the terms of the plea agreements entered with each of the defendants by asking certain questions during the polygraph examination which were either (1) not narrowly tailored to measure the truthfulness of the precise issue that was intended to be explored or (2) related to matters beyond the scope of the defendant's oral debriefing.
In pertinent part, the court's order stated:
Ailsworth, 899 F.Supp. at 520.
The government, with the aid of a qualified polygraph examiner, drafted a new set of questions to submit to each of the defendants during a second polygraph examination. On September 11, 1995, the court entered a memorandum and order overruling the objections filed by each of the defendants to the second set of questions to be submitted during a second polygraph examination. See United States v. Ailsworth, No. 94-40017-01-02;-06-07-SAC, 1995 WL 646809 (D.Kan. Sept. 11, 1995).
This case comes before the court upon the following motions filed by the defendants:
The government has filed a response to each motion.
In this motion, the defendants argue that the proposed second polygraph examination lacks any indicia of reliability due to the phrasing of the question, the number of issues raised, and the number of questions presented. The defendants argue that the proposed second polygraph examinations are structured in a manner falling outside the accepted standards of the American Polygraph Association. The defendants also argue that George Johnson is biased against them, thereby impairing his ability to administer the polygraph examinations fairly. The defendants seek an order requiring the polygraph examinations to be conducted by an examiner other than George Johnson, that the examination be conducted "in association with a qualified and trained examiner of defendant's choosing," that the polygraph examination be limited to one issue, and if necessary that more than one examination take place, and that the examination be performed in accordance with accepted standards of the American Polygraph Association. In the alternative, the defendants renew their request to withdraw their guilty pleas.
In support of their motion, the defendants submit the affidavit of Frank A. Carbone, "a court certified expert in the field of Polygraphy." Carbone has reviewed the proposed polygraph questions to be used during the examination of Jessie Ailsworth. In Carbone's opinion, some of the questions are vague and/or lack the specificity needed to ensure proper focus by the person being examined. Carbone also opines that because of the manner in which the questions have been drafted, as well as their number and issues considered, a single examination would be invalid and therefore unreliable.
The defendants also argue that this court's review of the proposed polygraph questions and objections to the same previously filed by counsel constitutes improper participation in the plea agreements. In essence, the defendants contend that the court's consideration of their "Motion to enforce plea agreements or in the alternative set aside pleas" (Dk. 495) has impaired the court's objectivity. The defendants also suggest that the court has assumed the role of advocate for the government.
The government responds, arguing that the defendants' renewed objections are frivolous. The government contends that George Johnson is a qualified polygraph examiner. The government argues that there is no evidence that George Johnson is biased. In response to the defendants' argument that asking all of the proposed questions during a single polygraph examination would be improper, the government indicates that "all of the proposed relevant questions for a particular defendant will not be propounded in one examination." Instead, during the polygraph examination, a series of three to five relevant question will be propounded, as well as other "control" questions. The defendants are simply informed of the questions to be propounded during the examination during the pre-test portion of the examination so that there are no surprises during the examination.
Contrary to the defendants' suggestion, the court has devoted substantial time to evaluating all of the their objections to the second polygraph examinations. In their renewed motion, the defendants essentially advance the same arguments previously considered and rejected by the court. In support of their challenge to the second round of polygraph examination questions, the defendants cite alleged deficiencies in questions to be asked of Ailsworth as examples. However, the examples cited by the defendants are basically the same objections overruled by the court in its September 11, 1995, memorandum and order.3 To the extent that the defendants are simply rehashing, albeit in slightly different forms, the same arguments previously rejected by the court, they are denied on that basis alone. The court is otherwise satisfied that the questions to be posited during the second polygraph examinations are proper.
The court is satisfied that George Johnson is a qualified polygraph examiner and that he is not biased against the defendants. As to the defendants' request that the examination be conducted "in association with a qualified and trained examiner of defendant's choosing," such a request is a blatant attempt to modify the terms of the plea agreements and is denied on that basis alone.
In sum, the court concludes, based...
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US v. Ailsworth, Case No. 94-40017-01
...denies renewed objections to format of second polygraph examination and to polygraph examiner George Johnson. See United States v. Ailsworth, 914 F.Supp. 426 (D.Kan.1995). December 12, Court enters memorandum and order denying Conway's motion to reconsider rulings and to challenge polygraph......
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