The defense says it’s a cutting-edge tool that can out ferret out false statements and might keep an innocent man from going to prison.
The prosecution calls it pseudo-science – a gimmick that has no place in a Kansas courtroom.
A Sedgwick County judge settled part of the argument this month when he ruled that Kansas taxpayers won’t be paying $5,000 to an Oregon man who was hired to see if two sisters, ages 13 and 16, were lying when they said they were raped by Robert Contreras.
District Judge Warren Wilbert initially approved the payment but changed his mind after Board of Indigent Services director Pat Scalia walked into his courtroom and balked at making the payment.
She said the range of expert services available to indigent criminal defendants in Kansas is limited. “Structural forensic linguistic analysis” is not one of the covered fields.
“There’s a limit to what taxpayers can bear,” she told Wilbert. “This is not a service that is recognized by the state of Kansas.”
Contreras’ lawyer, Sarah Swain of Lawrence, argued that experts in the field of linguistic forensics have testified in other jurisdictions, and she predicted they will eventually be used in Kansas.
“The fact that an expert hasn’t been used does not equal that an expert shouldn’t be used,” she said.
Prosecutor Justin Edwards was skeptical.
“Even if he’s somehow an expert, it’s not in a field that’s admissible in Kansas,” he said.
Reed McClintock of Beaverton, Ore., who was hired to analyze the sisters’ statements, defended his work in a telephone interview last week.
“It’s not pseudo-science,” he said. “It’s not some mystical, magical, bizarre thing. This is based on sound research – solid, scientific studies both in the lab setting and in the real world.
“The FBI is starting to tap into this because it’s a great way to detect deception with a high degree of accuracy,” McClintock said.
The case in question involves allegations that Contreras, who is 45 and unemployed, molested the girls last year in his home. He was jailed on $500,000 bond on Nov. 21 after his arrest on rape and aggravated criminal sodomy charges. Under Jessica’s law, because one of the victims was under 14, he faces a sentence of life without parole for 25 years.
A motion filed in the case by prosecutors shows that the younger girl’s mother took her to the Haysville Police Department on Nov. 20. The girl told officers she had twice been sexually abused by Contreras two months earlier. The girl said both acts occurred on Contreras’ living room couch after she and Contreras had watched the R-rated movie “Magic Mike.” The girl said she pretended to be asleep during the acts to avoid confrontation with the defendant. When confronted by police, Contreras denied that the events occurred.
On Feb. 16, the motion says, the mother went back to the police station with her 16-year-old daughter, who told a similar story. She told officers that Contreras forced her to have sex with him on Aug. 7 on his living room couch after watching the same R-rated movie. On Feb. 28, Contreras was charged in a second case with rape, and his bond was increased by $100,000, A judge has agreed to consolidate the cases, and Contreras is scheduled to stand trial in June.
McClintock said he couldn’t discuss specifics of the Contreras case, but he said he’s used linguistic forensics analysis in about 200 cases. He said a typical case involves an employer who wants to the check the veracity of a claim made by an employee. He said he has never before testified as an expert witness in a criminal trial.
McClintock, 40, said he was a professional clown before going into the field of criminal justice. He said he received a degree in forensic psychology from Kaplan University in 2011. He said he has studied the works of psychologists such as Paul Ekmun, who is considered a pioneer in the field of lie detection.
Swain said in a written motion filed for the defense that McClintock’s analysis was a key part of her client’s defense. She noted that there was no physical evidence in the case, and she said police never went to the crime scene or interviewed any independent witnesses.
“The only evidence that the state has is the statement of a teenage girl,” she said. “There’s zero corroboration. In order to attack the case, we need to attack the statement.”
Edwards answered in a prosecution motion that McClintock’s conclusions could not be taken seriously.
“Ultimately, his conclusion appears to be that most of what (the victim) said was false, while what the defendant said was true,” he wrote. “There is no authority under Kansas law for the admission of this line of testimony.”
Edwards argued that it should be up to a jury to decide whether the girls are telling the truth.
At the close of the hearing, Wilbert said he felt obliged to comply with a state regulation that prohibits spending tax dollars on expert legal services that are not recognized by the courts.
“I’m hard-pressed at this time, at the front end, to shell out $5,000 for something that might not be recognized in the state of Kansas,” he said.
He told Swain that if she can convince a trial judge to admit the analysis, he might reconsider his ruling. Wilbert said he didn’t anticipate that prosecutors would let a jury hear about linguistic forensic analysis without a fight.
“Mr. Edwards is obviously going to come at you with both barrels,” he said.