Asking for polygraphs in suit a ‘fishing expedition’
The attorney representing two Fayette County state police troopers who were sued for malicious prosecution called a request for seven years’ worth of polygraph examinations conducted by the agency “the ultimate fishing expedition.”
In paperwork filed this week, state Senior Deputy Attorney General Robert A. Willig urged a federal judge to uphold a ruling that the attorney Warren Bircher waited too long to request some documents and that the requests for others were overly broad.
Bircher, 38, of Adah sued Trooper James A. Pierce and Cpl. Scott Krofcheck, alleging the men did not have enough evidence to arrest him for criminal homicide in the death of a newborn infant but did so anyway. Bircher took the case to trial and, in 2010, was acquitted.
Bircher filed suit last year, alleging malicious prosecution.
Earlier this month, his attorney, Joel S. Sansone, filed a motion asking for documentation about a polygraph he alleged was taken by Sara Sue Hawk, 30, of Uniontown. Hawk was the mother of the newborn infant, and implicated Bircher as being involved in the baby’s 2000 death. She pleaded guilty to third-degree murder and is currently in prison.
Sansone also asked for the polygraph of another woman who was not implicated as being involved in the infant’s death but who was interviewed as part of the case. He additionally requested seven years’ worth of state police-conducted polygraphs and the names of examiners over that time span.
U.S. District Judge Cathy Bissoon denied the request, saying that the time for discovery — the exchange of information between the two sides in the case — had long since passed. Sansone asked her to reconsider the decision last week, claiming that he only learned of the polygraphs when he went through “obscure” documents in the case, including Bircher’s preliminary hearing transcript.
“It is remarkable that that plaintiff characterizes his own preliminary hearing transcript as ‘obscure.’ He was the one charged with murder. He was there at the hearing. He is the one claiming that the charges against him were not supported by probable cause. His preliminary hearing transcript is hardly ‘obscure’ and unknowable to the plaintiff,” Willig wrote.
He also contended that Hawk was never given a polygraph.
While Pierce testified that she was at Bircher’s preliminary hearing, the trooper was mistaken, Willig wrote.
“Pierce informs counsel that he looked through his file, and there is no record of Hawk receiving a polygraph. Pierce informs defense counsel that he contacted a state police polygrapher who also checked his records and who informed Pierce that there is no record for Hawk receiving a polygraph. Defendants cannot produce that which does not exist,” Willig wrote.
The motion argued that Sansone is trying to blame the defendants in the case “for his own poor preparation of his case.”
As for the motion to produce results of a polygraph administered to another woman who was questioned as part of the criminal investigation, but never charged, Willig argued that Sansone waited too long to make that request.
Sansone received the documents that detailed that polygraph in January, but did not bring up the request for test until December, according to court documents.
“Plaintiff’s failure to prepare his case is not a ground to grant a motion to compel well after discovery has closed,” Willig wrote.
He urged Bissoon to again deny the requests for information, and noted that asking for seven years’ worth of unrelated polygraphs conducted by state police is not an appropriate request.
“A valid discovery request must be reasonably calculated to lead to the discovery of relevant, admissible evidence,” Willig wrote. “It escapes the defendants how any polygraph outside of this case is relevant, let alone seven years’ worth of polygraphs of other people completely unrelated to this case.”
Bissoon will rule at a later date.