Attorneys argue over Robert Lee Woody’s missing polygraph exam

An evidentiary hearing about a polygraph exam of prosecution witness Robert Lee Woody could conclude Wednesday in the Korey Kauffman murder case.

The defense has argued that the defendants’ due process rights were violated when the prosecution withheld Woody’s polygraph exam for two years and four months, information that includes exculpatory evidence for the defendants.

The prosecution says it was not aware that information from a lie-detector test conducted by state prison officials existed, and the defense attorneys now have all the polygraph information to use while cross-examining Woody on the witness stand.

The case is in the middle of a preliminary hearing for Modesto attorney Frank Carson and five others charged in Kauffman’s slaying. Woody, who was the first person charged with murder in Kauffman’s death, has agreed to testify in exchange for leniency.

The defense has already begun cross-examining Woody, but his testimony has been put on hold for more than a week to deal with the polygraph issue. In the meantime, attorneys have argued over the missing polygraph exam. A video recording of the April 2014 lie-detector test was shown in court last week.

In the video, Woody says he lied to investigators in an interrogation shortly after his March 2014 arrest. He tells the polygrapher all he knows is what he learned from the investigators.

Since then, Woody has testified in court that he lied during the polygraph exam. He also has said that he witnessed Kauffman’s death and helped his alleged co-conspirators hide Kauffman’s body before dumping it in Mariposa County.

Defense attorney Percy Martinez told the judge that the Stanislaus County District Attorney’s Office knew about the polygraph, since the exam was conducted inside the prosecutors’ downtown Modesto office in April 2014. “They can’t hide behind the fact that they lost it,” Martinez said in court.

Chief Deputy District Attorney Marlisa Ferreira said she did not know until recently that Woody had a taken a polygraph and characterized it as a huge mistake that they caught. “They haven’t been deprived of due process,” the prosecutor told the judge.

Ferreira argued that there’s no evidence indicating the prosecution was deceptive or withheld the information by reprehensible means. The prosecutor accepted responsibility for the missing polygraph exam, saying it’s her duty to provide the information to the defense. “I wish it had been sooner; that’s on me,” she said.

But no trial has been ordered in this case, Ferreira said, and the defense can still use the polygraph information to challenge Woody’s testimony before the preliminary hearing concludes.

Martinez said the defense discovered references to Woody’s polygraph while listening to 70 to 80 hours of audio recordings of Woody being questioned by investigators. “They didn’t catch anything. It was based on our insistence. We caught it,” the defense attorney told the judge.

He argued that four members of the task force investigating Kauffman’s death, including lead investigator Kirk Bunch, were just outside the room where the polygraph was conducted. But none of them ever mentioned the lie detector test. “Instead, they did nothing; absolutely nothing... they buried it,” Martinez said.

The prosecutor called the defense accusations of suppressing evidence “meritless,” and finding the polygraph has changed nothing. Ferreira said they’re still in the middle of a preliminary hearing with a witness who has already testified that he lied to authorities, including the polygraph exam.

Defense attorney Martha Carlton-Magaña told the judge that Woody’s polygraph is crucial exculpatory evidence because it’s the first time he has recanted statements to investigators. “But we didn’t know this interview existed,” she said.

Carlton-Magaña argued that the video shows Woody explaining he lied to investigators to help them make a case against the other defendants, so the investigators would release him. “It’s the most exculpatory evidence in the case, other than the lack of physical evidence,” she said.

Bunch made arrangements for the polygraph exam that Woody requested and can be heard in the video after the first portion of the exam concluded. Bunch has sat next to the prosecutor during the preliminary hearing.

Defense attorney Hans Hjertonsson argued that Bunch knew about the lie detector test, and Ferreira should’ve known a year ago when the court ordered her to provide all discovery evidence to the defense. He said there’s also a pre-test interview with Woody that was not recorded, and the defense will never know what was said.

Special Agent John Jefferson of the state Department of Corrections and Rehabilitation conducted the polygraph exam on Woody. Jefferson has testified that he doesn’t recall asking Woody about people involved in the Kauffman case during the pre-test interview, which is mainly used to establish rapport with the subject.

Woody has said in court that he lied numerous times to investigators while in custody for about a year before he decided to cooperate with the prosecution in August 2015. He says he lied again last month, when he told investigators and the prosecutor that he saw Carson and former California Highway Patrol officer Walter Wells at the crime scene.

The prosecutor argued that this is an “enormous” case with more than a thousand CDs of digital materials and more than 29,000 pages of documents that have all been provided to the defense. Ferreira said the fact that only one polygraph exam was missing shows the prosecution is working diligently to hand over all the evidence to be presented in the preliminary hearing, which is in its 10th month.

“Nobody wanted to find the polygraph more than I did,” Ferreira said.

The prosecution says Kauffman was last seen alive March 30, 2012, leaving Michael Cooley’s home and heading to Carson’s neighboring property to steal irrigation pipes. Cooley and Kauffman were friends.

Defense attorney Robert Forkner told the judge that Woody’s missing polygraph exam is part of a pattern that the prosecution is trying to hide and suppress evidence in the Kauffman case. He said the court needs to hand down some type of sanction to the prosecution.

“They’ve tried to bury more evidence than the Cooleys,” Forkner said, referring to testimony that the Cooleys buried a dog and Kauffman’s bicycle behind their Lander Avenue home.

Forkner has told the judge that he will call three prison inmates who will testify that Cooley confessed to being involved in Kauffman’s murder. Those witnesses are expected to testify later this week.

Defense attorney Jesse Garcia argued that the missing polygraph exam has “infected” every aspect of the murder case. He said there doesn’t have to be wrongdoing by the prosecution to prove due process rights were violated, and the judge should throw out all of Woody’s testimony along with investigators’ testimony about what Woody told them.

Once the attorneys are done with their arguments, Judge Barbara Zuniga will decide whether sanctions for the prosecution are necessary, including possibly dismissing the case or throwing out testimony. The judge could also decide to delay the preliminary hearing to give the defense necessary time to further review the polygraph materials.

This story was originally published August 30, 2016 at 6:45 PM with the headline "Attorneys argue over Robert Lee Woody’s missing polygraph exam."