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Burden of Proof

Lie Detector Test Under the Microscope; 'Trial of the Century' Legacy Six Years After the Murders

Aired June 12, 2000 - 12:30 p.m. ET

THIS IS A RUSH TRANSCRIPT. THIS COPY MAY NOT BE IN ITS FINAL FORM AND MAY BE UPDATED.

(BEGIN VIDEO CLIP)

ED GELB, POLYGRAPH EXAMINER: Final conclusion: based on extensive polygraph examination, neither John nor Patsy Ramsey were attempting deception when they gave the indicated answers to the relevant questions.

FRED GOLDMAN, FATHER OF RONALD GOLDMAN: There is no way that this guy, this murdering scum client of his, is ever going to pass a lie detector test. The bottom line is he was found responsible for Nicole and Ron's murder in the civil trial.

(END VIDEO CLIP)

GRETA VAN SUSTEREN, CO-HOST: It's a controversial tool for police, defense attorneys, and prosecutors, but in many cases, the results are not admitted in court. Today on BURDEN OF PROOF: the lie detector test.

ANNOUNCER: This is BURDEN OF PROOF with Greta Van Susteren and Roger Cossack.

VAN SUSTEREN: Hello, and welcome to BURDEN OF PROOF. Roger is off today.

There's a new debate in legal circles about the lie detector test. The latest polygraph fireworks came from O.J. Simpson, who says he's willing to take a test and answer questions about the deaths of his ex-wife and Ronald Goldman. Just a few weeks ago, John and Patsy Ramsey, who are parents of JonBenet Ramsey, announced they had taken polygraphs, but the Boulder police reject the results because the test was not administered by the FBI.

Joining us today from Los Angeles is polygraph expert, Ed Gelb. In New York, we're joined by John Q. Kelly, attorney for the estate of Nicole Brown Simpson. And also in Los Angeles, Shawn Chapman, who is a member of the O.J. Simpson criminal defense team. And here in Washington, James Owens (ph); former federal prosecutor Pam Stuart; and Charles Moore (ph). And in our back row, Ashley Foulk (ph), Andy Luce (ph), and Chris Vucovich (ph).

Let me go first to you, Ed. Ed, you have done over 30,000 polygraphs since 1969. O.J. Simpson says he will take a polygraph on pay-per-view. Would you ever do a public television polygraph?

GELB: They cannot be done that way, Greta. What is done, in actuality, is the examination is conducted in private in a proper scientific setting. Then what you can do is you can show the collection of the last chart, a demonstration chart, on television. But that will not change what went with the three charts that were conducted in the appropriate scientific setting. You can't make a media circus out of a polygraph examination.

VAN SUSTEREN: Well, you talk about media circus, but if O.J. Simpson or someone else were simply to go into a room with an examiner and have it videotaped, you wouldn't have that sense of media circus, what would be wrong with showing it on television, assuming that O.J. Simpson truly would take one.

GELB: There would be nothing wrong with that, Greta, that would work.

VAN SUSTEREN: Shawn, let me go to you. There has been an awful lot of use of polygraphs, recently. Anita Hill took one in the Clarence Thomas case, a number of years ago. You have got John and Patsy Ramsey just passed one that Ed administered. When would you. as a defense lawyer, ever advise a client to take a polygraph test?

SHAWN CHAPMAN, MEMBER OF O.J. SIMPSON'S DEFENSE TEAM: Well, obviously, when a client is maintaining his innocence, is insisting on his innocence, and wants to do whatever he or she can possibly do, to prove it to the D.A.

I have actually had the opportunity to use polygraph tests in my practice. And when you have got a D.A. who is willing to look at that evidence, it often works to our advantage.

VAN SUSTEREN: When you say it works to your advantage, the Ramseys wanted to get the Boulder police to go look for someone else other than them. That hasn't happened. What could O.J. Simpson possibly gain by a pay-per-view, do you think?

CHAPMAN: Well, you know, O.J. is very concerned with the fact that he was acquitted in his criminal case and yet people seem to continue to believe that he's guilty. I think that any human would probably want to convince the world of their innocence, and I'm sure it's just his own sort of human nature that wants to go further and show people that he really didn't do this.

VAN SUSTEREN: John Kelly, you are one of those who believes O.J. Simpson is guilty. You represent the estate of Nicole Brown Simpson in the civil case. If O.J. Simpson does elect to do a pay-per-view lie detector test, what are you going to do with the results, whether there would be truthful results or deceptive?

JOHN Q. KELLY, ATTORNEY FOR ESTATE OF NICOLE BROWN SIMPSON: Well, at this point, they would be absolutely meaningless to us, Greta. We already have a civil judgment in the amount of $33.5 million. So there is nothing we can do on the civil front, and if the state of California wants to prosecute him for perjury to pay any of the results off, that would be a decision they made. But as far as we're concerned, it is over and done and we have proven his responsibility for those deaths.

VAN SUSTEREN: John, one of the issues that has come up, in terms of this debate, is where the money would be paid. And there was some discussion, and I don't know where the discussion is now, that O.J. Simpson wanted the money deposited in a bank account outside the United States. Would that make it beyond the reach of your civil judgment?

KELLY: I don't know. We haven't been able to track that down. We have heard the rumor circulating for years. We have done a very in-depth, you know, search for that, had a lot of people working on that. We haven't been able to find any evidence of that, and it might be an interesting question to ask him.

But right now, we have the judgment in place, and once we locate any assets of his, once and for all, we will execute on them again, just like we did in the past against his house and his personal belongings.

VAN SUSTEREN: Pam, you have been on both side of the aisle, prosecutor, now defense attorney, what would be gained by a public polygraph, if anything, for O.J. Simpson?

PAM STUART, FORMER FEDERAL PROSECUTOR: Well, it sounds like the person who would gain the most is Mr. Kelly because presumably Mr. Simpson would earn some money from a pay-per-view telecast. But, in my view, you couldn't have a polygraph test conducted in that kind of an atmosphere, even if it were just videotaped and he was in a quiet room with the examiner, because if he were aware that this was going on it could affect the results and I don't think anyone would accept them as being valid.

VAN SUSTEREN: Ed, can you actually convince yourself that you are innocent when, in fact, you are guilty?

GELB: Not in the time frames that we're talking about, Greta. I've conducted polygraph examinations 50 years after the most notorious kidnapping in the United States was conducted. The polygraph indicated deception, the person I was examining made an admission, corroborating the polygraph results. So that's anecdotal evidence, that is experience that I've had with a case 50 years old.

Does polygraph work three years, four years, five years? could you say to yourself I didn't kill my kids if you were the Ramseys? No, you could not. That would not work, the polygraph would be correct.

VAN SUSTEREN: Ed, if I were a polygraph expert, like you, if I had all these years of experience, and you and I both looked at the same chart, could reasonable people differ in terms of whether the person who was examined was telling the truth or not?

GELB: No, Greta. If we are numerically scoring these charts, we are going to come up within a few points with one another. What polygraph does have is reliability. Consistently it does whatever it does right or wrong. So it has accuracy, validity and it also has reliability. But if those charts are blind scored, as with the Ramseys, where Cleve Baxter blind-scored the examination, they are going to come up with the same conclusion.

VAN SUSTEREN: What kind of questions, Ed, today, if you are going to ask someone who is accused of a murder that is a stale murder. Would you ask him the blunt questions: did you do it? or did you not do it? Is that the way it is done?

GELB: What you do is you try to bring the person back to the scene of the crime. If the crime was a shooting, you don't say, did you kill Johnny Jones, because the person might say: Well, I fired a shot, but they died after I left. So the appropriate question might be, did you fire the shots that caused the death of Johnny Jones? In other words, you go to the event, and in doing that in pre-test interview, you bring the person being examined back to the crime scene.

With Patsy Ramsey, I actually took out a copy of the ransom note. We went over that ransom note. So that brought it back to reality. If she had written that note, she would have reacted. She did not.

VAN SUSTEREN: John, do you want O.J. Simpson to take a polygraph or not?

KELLY: No interest whatsoever. We built our case on bricks and mortar, you know, the bloody glove, the bloody shoe prints, the Nicole and Ron's blood in the Bronco, his trail of blood leaving the murder scene all the way back to his house. I mean, those are the sort of brick and mortar things you can put your hands on and juries understand.

VAN SUSTEREN: So you are finished?

KELLY: We are done. We did our job.

VAN SUSTEREN: All right, we are going to take a break. Death penalty cases: When DNA can't overturn a wrongful conviction, can a polygraph help? Stay with us.

(BEGIN LEGAL BRIEF)

Between 1973 and 1995, 5,760 people were sentenced to death, resulting in 4,578 of these being appealed. Two-thirds of these appeals were successful with the sentences having been reduced.

Source: The Justice Project

(END LEGAL BRIEF)

(COMMERCIAL BREAK)

VAN SUSTEREN: Good news for our Internet-savvy viewers. You can now watch BURDEN OF PROOF live on the World Wide Web. Just log on to CNN.com/Burden. We now provide a live video feed, Monday through Friday, at 12:30 p.m. Eastern time. If you miss that live show, the program is available on the site, at any time, via video-on-demand. You can also interact with our show and even join our chat room.

Last Wednesday, I interviewed Texas death row inmate, Gary Graham, who's scheduled for execution next week. I asked Gary and his attorney, on our program, if he would be willing to take a lie detector test.

(BEGIN VIDEO CLIP, JUNE 7, 2000)

VAN SUSTEREN: In many cases, you have DNA which can exonerate someone, this isn't the type of case where DNA could do that. What about a polygraph examination? have you ever taken one?

GARY GRAHAM, TEXAS DEATH ROW INMATE: I haven't and when I was arrested in 1991 I asked for one and it was never provided.

VAN SUSTEREN: And would you still be willing to take a polygraph examination?

GRAHAM: I think that's something I have to look at with my -- I have to follow the advice of my defense attorneys on that.

VAN SUSTEREN: Is polygraph a possibility to try to keep that man out of the death chamber?

DICK BURR, ATTORNEY FOR GARY GRAHAM: You know, I think at this point, less than two weeks away from an execution, when tension is extraordinary, that's a very difficult thing to do.

(END VIDEO CLIP)

VAN SUSTEREN: Shawn, Dick Burr, the attorney for Gary Graham has some, at least appears to be some hesitation, because he says tension is high. As a defense attorney, last resort, would you try to get a polygraph to that man on death row?

CHAPMAN: Yes, it seems to me that he's going to be executed. I would try to do anything I could possibly do to save that man's life.

VAN SUSTEREN: Ed, what about this issue of tension? is that a legitimate concern? I mean, can tension skew the results?

GELB: Well, certainly there would be tension. I think the technique is robust enough to handle that. And, of course, on the other side of the coin, Greta, we have somebody who has already been convicted of the crime. Therefore, you might say there's lack of fear of detection, of deception. So I think that one outweighs the other, I think the man is polygraphable.

VAN SUSTEREN: Pam, you know, you oftentimes here people talk about defendants getting off for quote "technicalities." You know, and now in this day and age you can't get back into court sometimes after convictions because of quote "technicalities," you can't get back in to show your innocence. Why in the world would a prosecutor ever resist a DNA test or a polygraph test in an instance like this? STUART: Well, these DNA tests and polygraph tests and the kind of circumstances that we're talking about really take place behind the scenes. So they're really not in court, and really what they are trying to do is to court the court of, say, prosecutor opinion within that office.

VAN SUSTEREN: But let's look at Gary Graham, he's going to be executed June 22. If a polygraph -- if I wanted to polygraph him, if I were his lawyer, I could tell you, it would be very difficult for me to persuade the prison, the prosecutor to let me go in with a polygrapher like Ed Gelb. And a prosecutor resists, why, ?

STUART: Because at that point, the case has pretty much been concluded from their point of view. But I don't see in the circumstances of Mr. Graham, really, that either Mr. Graham or the prosecutor have anything to lose. The prosecutor has a conviction. The results of the polygraph may or may not be admissible in Texas, I don't know what the law is there. But in general, they're not admissible in court.

So the only result, assuming he passed it, which I think is highly unlikely at this juncture, would be that it would give the prosecutor an opportunity to take a second look at it, and perhaps the governor, who seems to be taking a second look at these sorts of matters.

VAN SUSTEREN: John, let me take you off the Simpson civil case, instead, put you on Texas Pardon Board, and let's say that Gary Graham, who was convicted of murder, a one-witness identification, no other evidence tying him to the case. And let's say he passes a polygraph. What way are you going to vote?

KELLY: It might give me pause and it would have me look at the other evidence surrounding the circumstances of the case. That alone would not be a determining factor and cause me not to proceed with the execution at that point, Greta.

VAN SUSTEREN: Shawn, if I put you on that Texas board and it's a case, single ID, no forensic evidence, Gary Graham passes a lie detector almost 20 years after the crime. What are you going to do?

CHAPMAN: I'm going to halt the execution. You know, we just can't make mistakes in this area. And if there is a possibility, even the slimmest possibility that this person did not commit this crime, we can't possibly as a society, make such a mistake.

You know, he can spend his life in prison, I guess, if the governor wants to exact some sort of punishment. But to kill somebody when there is the possibility that he is innocent is wrong.

VAN SUSTEREN: Let me put the -- let me give you the flip side, now let's say he flunks the polygraph, now what? you are on that board of pardon.

CHAPMAN: Well, as has been said before, there has obviously already been a conviction, the governor is planning to go forward with the execution, clearly, if the polygraph does not go in his favor, the execution is going to go forward.

VAN SUSTEREN: Ed, have you ever attempted to get -- to do a polygraph exam on death row in any prison? is it more difficult to get into prisons than you might expect?

GELB: It is more difficult to get in. Quite often what I found is it's really up to the warden, the warden seems to be the one making the decision. We've polygraphed in prisons a number of times. The American Polygraph Association had a case review committee. And someone who felt that they were not properly convicted could make application to the American Polygraph Association. And we'd actually go into the prisons and conduct those examinations.

I might say that there was one time in Walpole State Prison where we found somebody who didn't commit the crime they were convicted of. The rest of the time they ran deceptive.

VAN SUSTEREN: And Ed, what's the percentage? what's your level of security in terms of polygraph exams? what's your margin of error?

GELB: Oh, I think that we are comfortable with about 94 percent validity, which breaks the rest into false positives and false negatives,

VAN SUSTEREN: OK, we're going to take a break.

Up next, the Simpson legacy, perceptions of the American justice system, and the lives of the people involved in the case.

Stay with us.

(BEGIN Q&A)

Q: On this day in 1964, Nelson Mandela was sentenced to life in prison. On how many charges of sabotage was he convicted?

A: Four. Mandela spent twenty-seven years in prison before being released.

(END Q&A)

(COMMERCIAL BREAK)

VAN SUSTEREN: Six years ago today, Ronald Goldman and Nicole Brown Simpson were brutally murdered. The ensuing criminal trial of O.J. Simpson was dubbed "the trial of the century."

Pam, it took almost a year, that criminal case out in California. Gary Graham, who sits on death row in Texas, the evidence in his case was presented in less than three days. How do you explain that to people? What is the big difference?

STUART: Well, there is California, where they have different kinds of rules, and you remember that the preliminary hearing was as long as several trials that most people would have. But it sounds like, in Gary Graham's case, the evidence centered on the testimony of one witness and therefore it would not take that much time to pick a jury, examine the evidence, have closing argument, and have the jurors decide the case.

VAN SUSTEREN: John, are you at all troubled by it. I mean, Pam said since it was a single-witness case, I mean, obviously, the O.J. Simpson case was an aberration and people tend to think that that is the way all trials are, but the criminal case was certainly an aberration, as least in my view. Are you troubled by the fact that death penalty cases can take less than a few days?

KELLY: Yeah, absolutely. In any eyewitness single-witness case is troubling, Greta. I mean, eyewitness identification is inherently suspect, and the fact that there is only one, and the punishment involved is execution, is very troubling. It is something that requires very close scrutiny.

VAN SUSTEREN: Shawn, your client, your former client, and also John and the sister of John's former client got into a screaming match on Fox television last week. What are your thoughts on that?

CHAPMAN: Well, you know, I really -- I feel for O.J. I think sometimes, like we all do, we turn on the television and he turns it on and he sees this conversation going on about himself. And I think it takes an enormous amount of restraint for him to sit there and listen to that, and I think that he couldn't handle it anymore, and he called up, and you know maybe he shouldn't have. But I think it would be difficult for any of us to sit back and hear our life being examined on television.

VAN SUSTEREN: John, do you want to respond to your former client's sister and...

KELLY: Well, I can say that I certainly don't feel for Mr. Simpson. But what I do want to point out is that the real losers in this whole thing are the two small children, you know Sidney and Justin. It is not doing anybody any good for their father and their aunt to be on TV getting into that type of situation. It should be left well enough alone, and they both should walk away from situations like that.

VAN SUSTEREN: I want to ask both of you, and I will start with you Shawn.

Shawn, has being part of the quote, "trial of the century," had a significant impact on your career in any way?

CHAPMAN: Well, it's definitely had a significant impact on my career. I've gotten a lot of great cases as a result of that. I learned a lot, worked the with some of the best lawyers in the country, and I think I'm a better lawyer because of it.

VAN SUSTEREN: John, what -- has it been -- has it had an impact on your life?

KELLY: Not really. I mean it's nice to be recognized, get patted on the back a little bit. I've had big cases before, I have had some big ones afterwards. I foregoed the mandatory book, so that was one thing I made a decision to let it go on. And life goes on, I have put it behind me. And no, it hasn't had a dramatic affect on my life.

VAN SUSTEREN: John, is there any active work being done to collect the judgment for the estate of Nicole Brown Simpson?

KELLY: No, we are just keeping an eye on his assets, make sure he doesn't withdraw more than he's allowed to from his 401(k) every month and that he doesn't get any windfalls like this $3 million he is looking for for the lie detector test. Other than that, there is not much to be done.

VAN SUSTEREN: Do you know if the family of Ron Goldman were able to collect any on their judgment, I mean although there was the seizure of the home?

KELLY: Yes, we worked that all out. We had executed on his house and all his personal property and things like that, and both Nicole's estate and the Goldman estate were able to work it out, and there was some collection for both of us.

VAN SUSTEREN: You know, Pam, one of the -- there are many tragic aspects of every trial, but one of the things that I always thought was troubling about the Simpson case is I think the American people always thought, or at least many of think that that's the way trials are done. What, in your view, is the legacy of the Simpson trial, if any? the criminal and the civil?

STUART: Well, I think it has made it much more difficult for prosecutors to present a case that jurors will accept without excessive scrutiny sometimes.

VAN SUSTEREN: But wait a second, you got LAPD, and look at what's happened in Rampart. I mean, was it really such an excessive scrutiny of -- I mean, maybe in other police departments, but that had such a history. Was it excessive scrutiny, do you think?

STUART: No, and frankly, I think the jurors came to a conclusion in the Simpson case that many would disagree with, and I think that's had a significant impact, because so many people watched the trial from basically start to finish. So they had opinions, and many of them were not shared with the jurors.

VAN SUSTEREN: Shawn, in the 15 seconds left, what's the legacy, in your mind, of the Simpson criminal case?

CHAPMAN: That if the defense has the same resources that the prosecution has, that there would be a lot more not guilties than there are now.

VAN SUSTEREN: And that's all the time we have for today. Thanks to our guests, and thank you for watching.

Today on CNN's "TALKBACK LIVE": Capital punishment, is the justice system flawed on death row? That is at 3:00 p.m. Eastern time, noon Pacific.

Tomorrow on our program, are Visa and MasterCard squeezing out competition? The Justice Department says so in a federal lawsuit. Join us tomorrow for another edition of BURDEN OF PROOF. We'll see you then.

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