And Never See Her Again (15 page)

"Absolutely."

Holden continued by explaining that if there was a problem with a question, anything that would cause Franks to say it wasn't a good question, it wasn't clear, or it couldn't be answered yes or no, then it would be back to square one. They would start all over.

At the defense table Edward Jones and Leon Haley had their heads together whispering, perhaps discussing rebuttal questions for Holden. Holden's explanation of their client's participation in the questioning process for the polygraph didn't fit their profile of Franks as mentally incapable.

'Was Richard Franks comfortable with the questions that you and he designed for his test?" Miller questioned Holden.

"He indicated he was. Yes, sir," Holden responded.

"What happens after the questions are designed?" Miller questioned.

"At that point the questions are all entered into the computer. At that point I begin to explain the actual attachments that would be placed on him, what they do, how they work. How the computer gets the data based on physiological reactions from the examinee. I explain the actual test procedure to him at that point and go through the test procedures with him. I make sure he's clear how long each chart will take, how many charts will be run, and how long the whole procedure will occur. I explain to him that he will not feel anything from the attachments or the test receptors around the chest and belly. He will feel the pressure on the arm cuff; I make sure he's clear about that. And then we begin the test process after I give him the final instructions about sitting still, looking straight ahead, making sure he doesn't have to go to the bathroom, and he has plenty of water and feels good-" Holden explained.

"Object to the narrative," Davis interrupted.

"Overruled, "Judge Gill responded.

After waiting for the judge's ruling, Holden continued. "Then we get the last commitment: are you sure you want to proceed with the test? If he says yes, we do. If he says no, we go home."

Still sitting at the prosecution table Miller asked, "What time was the first test run?"

"The first test, which was a practice test, was conducted at two-oh-one A.M.," Holden said.

"When you ultimately gave him the test for the subject matter, what time was that?" Miller asked.

"About two-oh-five, two-oh-six, somewhere in that area of the morning," Holden stated.

Holden explained that four tests were administered to Ricky Franks. He stated that up until the point he administered the tests, he had no idea Richard Lee Franks was involved in the abduction of Opal Jennings.

When the test was concluded, Holden had gathered up all the chart data, removed the attachments from Franks's body, asked him if he needed to go to the bathroom and if he was comfortable. Holden had informed Franks it would take about twenty minutes to evaluate the charts, grade them, and make an assessment.

"Initially, what did you do?" Miller asked.

"Initially I numerically scored them and numerically evaluated them. For reliability purposes I want to know how the computer graded it, if the computer saw it in the same way that I did. If there is a disagreement, it causes some concern. I had three computer evaluations. There are three computer algorithms in the computer; one from Johns Hopkins University and two other independent evaluations that are used by the Department of Defense, law enforcement agencies, and private examiners. They're algorithms that grade and evaluate polygraph charts. So, when I completed my evaluation, I went back in. Ricky was in the room with me when I did the computer assessments of each of the sets of polygraph charts," Holden explained.

"Did you inform Richard Franks of the results of the polygraph?" Miller asked. "And is that something that is required by Texas state law?"

"I did. It's required if the person appears deceptive. The requirements-" Holden began before being interrupted by Ed Jones.

Judge," Jones said as he stood to address the bench, "I object to any results being presented to this court. They are inherently unreliable and inadmissible in court."

"Overruled, "Judge Gill stated without hesitation.

Franks's eyes narrowed and his lips pursed as he showed emotion for the first time during the proceedings.

As Jones sat down, Miller urged Holden to continue.

"The law states that if a person is deceptive, you must advise the examinee of that deceptive opinion and afford them an opportunity to discuss the issue and to clarify it or tell you what may have caused the problem," Holden finished.

Holden informed the court that he had informed Franks of his test results about 3:00 or 3:15 A.M.

"At that time, did Mr. Franks begin to give you a different version than what he had previously given you?" Miller questioned.

"He did."

Holden explained that he then asked Franks to clarify the incident for him, and as he did, Holden began to take notes. The polygraph examiner told the court that the conversation with Franks took between two and 2' hours. It occurred somewhere between 3:00 and 6:00 A.M.

"During this portion of your meeting with Richard Franks, did he want to tell you what you put on this paper?" Miller asked, holding the statement Franks had made the morning after his arrest.

"He did. He had a story to tell and he told it," Holden responded. Holden elaborated by stating that he had written Franks's statement word for word and that Ricky Franks had signed and initialed it.

Holden added that he had allowed Franks to smoke, drink soft drinks, and to use the bathroom. Holden said he also asked Franks to write how he was treated on the last page of his statement. Holden acknowledged he had been impressed with Franks's handwriting and that virtually all of the words had been spelled correctly.

"When you told him you were impressed, what response did Richard Franks make?" Miller asked.

"He looked at me, smiled a little bit, and winked," Holden said.

"He winked?" Miller said with surprise.

"Yes. He winked."

Holden stated he then gave his handwritten notes to Charlie Johnson to be typed. He smiled as he admitted he had to help Charlie Johnson in transposing the notes due to his own poor handwriting.

When Miller concluded his questioning, Leon Haley stood to begin the cross-examination. A man of medium stature, Haley still commanded a presence in the courtroom.

Referring to Eric Holden's two degrees in psychology, Haley asked, "So you have some understanding about the makeup of the mind of people and how you can mislead them into making false statements; is that correct?"

"I'm not sure I have that clear a picture of the makeup of the mind, but I'm familiar with some of the issues you are addressing," Holden answered.

Haley switched his focus to the size of the room his client had been kept in and to Franks's demeanor during the questioning.

"The room was kind of sterile, wasn't it? Just a little room-a table and a chair, correct?" Haley asked.

"Right. "

"When you got in there, he was kind of like cowered over in a little corner, just sitting in a chair. Isn't that right?" Haley asked, painting a picture of his client as a frightened victim.

"You are asking me to account for his state of mind. He was happy to take a polygraph and that's what he wanted to do. That's what I was there for. I asked if he really wanted to do it, and he said yes. As for the arrest, I'm sure no one is glad to be arrested, period, for any reason," Holden stated.

Miller was pleased with Holden's testimony and his ability to withstand the defense attorney's probing. An expert witness, Holden had testified in hundreds of trials. The defense wasn't going to trick him into making a statement he wasn't prepared to back up with facts.

"Wouldn't it have made a difference to you what they had told him in terms of how you would have questioned him and prepared your discussions with him before you gave him the polygraph?" Haley asked in an effort to find out if Franks had indeed been questioned before Holden's arrival.

"It was important for me to know whether they had interviewed or interrogated him before I started," Holden responded. "Had they done that, I wouldn't have proceeded."

Holden stated that once Franks had agreed to take the polygraph, he then went to the investigators to learn more facts of the case. He needed the information at that point in order to formulate questions for the testing. He told Haley he still didn't know Franks was a suspect, only that he was to question him to determine if he was a likely suspect.

Determining that Holden could have spent as much as four hours with Franks prior to administering the polygraph, Haley asked Holden if he had had any concern that Franks needed rest before taking the test.

"Not at all. Based on what he indicated to me, how good he felt, how rested he felt, that he had eaten, I wasn't overly concerned about it," Holden stated.

Haley continued, wanting to know how far Holden had pushed his client.

"It's the policy of twenty-seven years, and my reputation pretty well substantiates this, if at any time he would have said, `I'm tired,' which at one point he did, it was over," Holden responded.

"According to your evaluation, it appeared that he might have been deceptive. Is that fair?" Haley asked.

"Yes, sir."

"Now, let's talk about this word `deceptive.' The fact that it appeared that he may have been deceptive didn't mean that he was actually lying, though. Isn't that fair to say?" Haley asked.

"Sure," Holden admitted.

Haley's serious look vanished momentarily and a slight curve of his lips was visible.

"Is there any reason why you didn't allow him to just take-to say, `Let's try it again, maybe something's wrong, let's try it again'?" Haley questioned.

"There's no procedure that you just keep doing it over and over. I had conducted four exams at that time, three repeats of the same questions over and over and over. Because there was consistency every time I asked the questions on each of the three charts that pertained to the OpalJennings matter, I had no reason to believe it would change on chart four or chart five or chart six. The law says two. I run a minimum of three," Holden elaborated.

"Did you discuss with him why he may or may not have passed?" Haley inquired.

"I asked him if there was anything going through his mind, what was going on with him. I asked him if he wanted to talk to me. He said he did. I asked him to explain to me, if he could, what was going on with him. Did he lie to me about anything that we had talked about? What might have caused the problem with him passing the test," Holden explained.

"You said you read him those warnings, did you actually read them to him or did you hand him the paperwork and tell him to read it?" Haley questioned.

"I went over them with him when I went over the consent form, as I was filling it out. I read portions of each of the paragraphs to him and specifically the Miranda warnings. I read those Miranda warnings to him," Holden stated. "In fact, if I might just put in one additional thing, we have people that are ordered to take the test-for example, police officers. We have totally different forms which our attorneys have devised that say, `I understand I'm being ordered to take this test.' So we are very cautious about that. If a person tells me, `I don't want to take this test,' whatever the reason is, I don't administer it. That's been my policy for twenty-seven years and it will remain my policy.

"I didn't see personally or hear anything from Mr. Franks that indicated he didn't understand what he was doing; he didn't understand where he was; he didn't understand what we were going to talk about; he didn't understand that he could stop at any time he wanted to; he didn't say, `I don't want to talk to you' or `Get me a lawyer.' It was whatever he wanted to do; it really made no difference to me at that point."

"Did you tell him if he took the test he'd be all right, they would leave him alone, anything like that?" Haley asked.

"I never told him that he could or couldn't do anything. I didn't tell him he might go home, might not go home, or he could stay. I didn't get involved in that because I didn't really know what his status was, quite frankly," Holden admitted.

"If you didn't know what his status was, why would you focus on the Miranda warnings out of the statement he signed?" Haley asked.

"We've done that for the last ten years or so with everybody that we administer a police test to or a law enforcement test. It makes no difference who it is. They are all treated the same. Mr. Franks was just another test subject," Holden said.

"Are you telling this judge that after he takes the test and you tell him that he's deceptive, that he sits with you and goes, `I tell you what, let me just tell you what happened,' and you just sit there and listen to him give his story, and when it's all over, he looks at you and says, `I'm tired, I want to stop'? Is that what you are telling us?" Haley asked sharply.

Franks had listened to his attorney closely. When Haley began to dispute Holden's testimony, the defendant smirked slightly.

"No, that's not what I'm telling you," Holden said calmly. "I wanted to know what he could tell me to clear up the deceptive readings. I did what's called a directed interview on him. When I attempted to interrogate him, he stopped me and told me he didn't want to talk to me."

Switching gears, Haley asked, "So the state calls you and asks you to come over. So now you are an agent of the state. Is that fair to say?"

"That's a legal judgment. I don't know. I know I'm working for the state," Holden said coolly.

"And you were being paid by them," Haley declared.

"Yes."

"And when you got that statement, you got your money and you were out of there, correct? I mean, let's just be fair about it. Is that correct?" Haley said accusingly.

"I don't remember who paid me. I billed them. They paid me at some time later," Holden answered frankly.

Haley left the subject of Holden's payment and focused on Richard Franks's academic level.

Holden informed the court that Franks had told him he had graduated from high school in Justin, Texas. Franks said he had been in special education and described himself as a slow learner because he had difficulty reading and couldn't spell well.