Joliet, Kevin Richard
WR-84,279-01
| Tex. App. | Dec 3, 2015Background
- Relator Kevin Richard Joliet pleaded guilty to injury to a child (Dec. 16, 2013) and was placed on five years deferred adjudication with sex-offender treatment conditions.
- Supplemental probation conditions (entered while relator was unrepresented) require submission to polygraph testing and a requirement to "show no deception" on maintenance polygraph retests.
- Joliet has taken ~16 polygraphs, repeatedly "failed" except once; all other investigative sources (forensic exam of devices) show no corroborating evidence of viewing pornography or new sex offenses.
- The trial judge (respondent) advised counsel she intends to order Joliet incarcerated and sent to an Intermediate Sanction Facility based solely on the failed polygraph, for a period likely to exceed 90 days.
- Relator seeks a writ of prohibition arguing incarceration based solely on polygraph failure violates federal and Texas due process protections and statutory prohibitions on using uncorroborated polygraph results to support revocation or other supervisory sanctions.
Issues
| Issue | Plaintiff's Argument (Joliet) | Defendant's Argument (Judge/State) | Held |
|---|---|---|---|
| Whether a court may incarcerate a probationer solely for failing a polygraph | Polygraph results are unreliable and statutorily barred as the sole basis for revocation/sanction; incarceration on that basis violates due process | Court intends to impose ISF sanction based on failed polygraph as a permissible supervision condition violation | Pending — relator seeks prohibition (application filed) |
| Whether supplemental probation conditions requiring "show no deception" on polygraph are lawful | Such a condition conflicts with Article 42.12 §21(c) and case law declaring polygraph evidence unreliable | Court imposed the condition as part of sex-offender supervision and expects compliance/enforcement | Pending — relator objects to the condition as contrary to law |
| Whether incarceration in an Intermediate Sanction Facility is an unlawful deprivation of liberty where based only on polygraph failure | ISF placement is a de facto deprivation of liberty and cannot be imposed on the basis of unreliable, statutorily-prohibited polygraph evidence | ISF is an available intermediate sanction for supervision violations and a court option short of revocation | Pending — relator argues ISF inappropriate absent corroborated evidence |
| Whether relator has an adequate remedy at law or clear right to prohibition | No adequate remedy; deprivation imminent (employment, housing, liberty) — prohibition is appropriate to prevent unlawful incarceration | State will assert supervision enforcement authority and discretionary sanctioning powers | Pending — relator asserts clear right to relief and requests writ of prohibition |
Key Cases Cited
- Morrissey v. Brewer, 408 U.S. 471 (1972) (due process protections apply to revocation of conditional liberty)
- Gagnon v. Scarpelli, 411 U.S. 778 (1973) (probationers entitled to certain procedural due process protections)
- U.S. v. Scheffer, 523 U.S. 303 (1998) (Supreme Court limited admissibility of certain polygraph evidence in criminal trials)
- Leonard v. State, 385 S.W.3d 570 (Tex. Crim. App. 2012) (Texas Court of Criminal Appeals: polygraph evidence is unreliable and cannot be used to discharge probationer from treatment or as sole basis for adverse supervision actions)
- Romero v. State, 493 S.W.2d 206 (Tex. Crim. App. 1973) (discusses scientific unreliability and error sources in polygraph testing)
- DeGay v. State, 741 S.W.2d 445 (Tex. Crim. App. 1987) (procedural due process framework for probation revocation)
- Curry v. Wilson, 853 S.W.2d 40 (Tex. Crim. App. 1993) (standards for extraordinary writ relief such as prohibition)