The moral forces of fact and truth are as significant as life and death.
While truth is manifest by subjectivity or faith, fact is confirmed by certainty or science. But it's possible to converge fact and truth when science measures the probability of truth or, to be more precise, the false-positive detection of a lie.
In the few days leading up to 10 a.m. on Tuesday, June 12, someone, perhaps a federal judge, Idaho Attorney General Lawrence Wasden, or even Gov. C.L. "Butch" Otter, will need to decide if there is any reason that Richard Leavitt should not be put to death. At least, not just yet.
No one disputes the most important facts in the case of Richard A. Leavitt vs. The State of Idaho: On July 21, 1984, a Blackfoot police officer discovered the body of 31-year-old Danette Elg, a single woman, inside her home. Ironically, Elg was scheduled to report to the Blackfoot jail that same evening to serve a sentence for a previous conviction of driving while under the influence.
But lawmen guessed that Elg had been dead for as many as four days when they found her, stabbed repeatedly in her heart and lungs, her genitals and anus removed from her body.
Nearly five months later, Blackfoot police arrested Leavitt--then 26 years old, a married mechanic with two children--and charged him with Elg's murder.
Leavitt was the nephew of Elg's former roommate and had helped Elg move into her residence in early July 1984. Leavitt suffered a gash on one of his fingers about the time that Elg was killed, but he insisted that he had been cut while preventing his wife from slashing her wrists when she learned of his having an affair with another woman.
A forensic specialist testified that blood matching Leavitt's type had been discovered at the scene of the murder, but Leavitt said he had suffered a nosebleed while helping Elg with her move in. A jury also heard about how Elg had gotten into a violent argument with roommate Thelma Wilkins on July 10, 1984, resulting in Elg asking Wilkins to move out. In cross-examination, Wilkins said she and Elg had been lovers.
Following a 10-day trial, a jury of six men and six women deliberated for three-and-a-half hours before convicting Leavitt of first-degree murder on Sept. 25, 1985.
But on Sept. 28, 1985, Bingham County Prosecuting Attorney Thomas Moss told the Blackfoot Morning News something that has troubled Leavitt for nearly 37 years.
"We thought we should leave out certain evidence because we did not want to risk an appeal," Moss told the Morning News.
But Leavitt did appeal the verdict and his subsequent death sentence on numerous occasions. In 1989, the Idaho Supreme Court pushed the case back to a Bingham County courtroom for resentencing, but Seventh District Justice H. Reynold George stuck by his initial decision, resentencing Leavitt to death.
In 2000, U.S. District Judge B. Lynn Winmill ordered the State of Idaho to initiate new trial proceedings but Idaho prosecutors appealed to the Ninth Circuit Court of Appeals, which reversed Winmill's decision and reaffirmed Leavitt's conviction. The U.S. Supreme Court twice declined to hear Leavitt's appeals, first in 2005 and again on May 7, 10 days before a death warrant was issued, ordering Leavitt to die by lethal injection on Tuesday, June 12.
"I have very strong personal feelings about injustice and falsely convicting innocent people," said Dr. Charles Honts, nationally renowned polygraph expert and Boise State psychology professor. "I think what a polygraph does is start to ask questions, and it appears that there are some questions here."
Honts is one of the few people to see Leavitt since the death warrant was issued, ordering his transfer to the F block of the Idaho State Maximum Security Institution, south of Boise. Honts was reluctant to talk about his visit, but Boise Weekly learned that he had seen Leavitt along with the condemned man's attorney, David Nevin, on May 23.
"Going to a prison is not unusual for me. I have performed quite a few polygraphs behind bars," said Honts. "But going to the death house, that was unique."
Honts has performed hundreds of polygraphs--maybe a thousand, he said. Following his studies in biology and psychology in the 1970s and '80s, he worked alongside some of the nation's pre-eminent experts in lie detection, chasing what he called "bad guys" in the oil industry, analyzing national security screenings and lecturing to law enforcement agencies across the globe before moving to Boise in 1995.
"There are police agencies that are very conservative about using polygraphs. They do their investigations, narrow the field of suspects and then offer polygraphs to a few people," said Honts. "But there are other agencies that run polygraphs to thin the field. It's a lazy way to do police work."
But dealing with someone already convicted and sentenced to death requires a very specific science--something called a comparison question test.
"You want your [CQT] to be as sharp as possible," he said. "Go right to the heart of the matter."
The questions asked of Leavitt couldn't have been clearer: "Did you stab Danette Elg?" "Did you remove Danette Elg's internal genitals?" "Were you present when Danette Elg was stabbed?"
Honts said Leavitt passed the test, answering "no" to each.
"The probability analysis suggest that it is very unlikely that Mr. Leavitt was attempting deception to the relevant questions of this examination," wrote Honts in his report to Nevin. Nevin immediately fired off an affidavit to U.S. District Court.
"If counsel had not immediately made the test results available, this would have provided silent confirmation that Mr. Leavitt had failed," wrote Nevin. "Particularly for this reason, Mr. Leavitt's passing the polygraph examination provides eloquent confirmation that he is not Danette Elg's killer, and that he is, on the contrary, innocent."
Nevin isn't asking for his client to be released from prison, at least not yet. But he called for what he said was an "emergency motion" to use 21st century DNA testing on the 36-year-old evidence used to convict Leavitt. In particular, Nevin wants new forensic testing on a shirt, shorts, panties, a lock and a sex crime kit.
But J. Scott Andrew, the current prosecuting attorney for Bingham County, is having none of it.
"I believe the timing of the current request makes it clear that it is merely a tactic to delay Mr. Leavitt's execution," wrote Andrew on May 21 in reply to the evidence request. "I am not willing to participate in yet another heart-breaking and frustrating delay for the victim's family. "
Andrew said that he was only "prepared to intervene" if forced by court order.
And though Honts said he wouldn't talk on the record regarding his polygraph of Leavitt until a court hearing could be held, he has confidence in the Idaho judiciary.
"To be honest, I think Idaho's in pretty good shape. My impression of the Idaho Bar and, in particular, prosecutors is that they honestly try to do a good job," said Honts. "I don't run into too many prosecutors who are ego- or power-driven or win-at-all-costs. The vast majority of the bar is highly ethical and just trying to do a good job."