Yuseff Hamadeh

Yuseff Hamadeh 

The polygraph test set to become the focus of fired Baton Rouge Police officer Yuseff Hamadeh's appeal was the first lie detector examination given during an internal affairs investigation by the city's police force in five years, a decision further muddied by legal and standard protocol questions.

Hamadeh was fired in October after he was found to have been untruthful in how he reported the details of an August encounter where he shot at a fleeing motorist. No one was injured. Hamadeh's attorney, Tommy Dewey, has asked for the Municipal Fire and Police Civil Service Board to overturn the termination because he believes the former officer's due process rights were violated, namely in how he was given the polygraph exam. 

And while Dewey asserts he has a strong argument supported by a similar case that set the legal precedent, other attorneys question whether this polygraph exam — which did not end up being relevant in the firing decision — has the weight to sway the outcome of this high-profile police misconduct case. 

The board will decide on the question Jan. 17. 

It remains unclear why Police Chief Murphy Paul requested Hamadeh take a lie detector test, the first one the department's internal affairs investigators had used since October 2012, BRPD spokesman Sgt. Don Coppola Jr. confirmed. He declined to comment on the specific case because of the pending civil service hearing, but said a polygraph test is "an additional tool that the chief has at his disposal." It does not appear there is any specific policy at the agency about when polygraphs should be used, but spokesman Sgt. L'Jean McKneely confirmed they are outsourced. 

The polygraph test from the 2012 internal investigation was administered by someone in the West Baton Rouge Sheriff's Office, Coppola said. Hamadeh's polygraph exam was completed by an examiner with State Police. Paul, who was appointed the city's top cop in January, left behind decades of work at Louisiana State Police, where he served as its commander of internal affairs for two years through 2010. 

"When you change protocol and you have this nasty result about something not having been done the right way … it allows people to be able to create this presumption … that we have this contaminated police force," said Dedrick Moore, an attorney for Raheem Howard, the man whom Hamadeh shot at after the August traffic stop.

Hamadeh's appeal asserts the State Police polygraph examiner violated his rights as a police officer by not recording the entire examination and by denying his request that his attorney be present during the questioning. According to the police officer's bill of rights, any disciplinary action taken after an investigation that violated those protections, which include that all interrogations be recorded and allow counsel, "is an absolute nullity."

And in 2016, the state's 1st Circuit Court of Appeal ruled on a similar case involving a City of Gonzales police officer, with the court deciding the cop deserved his job back because he was denied the right to record his polygraph exam and have his attorney present — the same argument Dewey is making. 

"I can't find (a case) more identical when it comes to fact pattern," Dewey said. He also noted the 1st Circuit Court of Appeal includes Baton Rouge in its jurisdiction, making the ruling precedent for the review of Hamadeh's case. 

A spokesman for State Police partially countered Dewey's assertion. While Sgt. Jared Sandifer declined to comment on the specific investigation, he said all LSP polygraph exams are recorded, but agreed they are conducted as a 'one-on-one' interview. Dewey said he was not provided such a recording in this case, but would like to review it if it exists. 

As for the exams being one-on-one, the administrative secretary of the state Polygraph Board, Rusty Bordelon, said that is protocol because a third person in the room can skew the results. He said only in rare circumstances is it recommended, such as for a translator. 

“The general rule of thumb is that an attorney can be present for the pretest or post-test, but not for the test itself," said Bordelon. "But he can watch."

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Dewey said he was not allowed to watch Hamedeh's exam, or be a part of any of pre- or post-examination. 

Hamadeh was fired after the investigation into an Aug. 7 traffic stop-turned-shooting. He initially told investigators that 21-year-old Howard first shot at him, prompting the officer to return fire. Howard was then arrested on attempted murder of a police officer, but that case was later dropped when District Attorney Hillar Moore III said there was no evidence to support Hamadeh's account of the shooting. Howard asserted from the beginning that he never had a gun. 

The Baton Rouge Police internal affairs investigation found evidence that only one shot was fired in the encounter, and it was from Hamadeh's gun. No other gun was recovered from the scene. 

Despite the polygraph being central to this January hearing that could give Hamadeh his job back, the polygraph appears to have been irrelevant to his firing. Hamadeh was found truthful during the questioning that asked if he saw "that man point a gun at you before you shot at him," (to which Hamadeh answered yes), yet he was still fired for being untruthful, according to his termination letter. 

“Why administer the (polygraph) test at all if they’re not going to follow the results?” said Ken Levy, an LSU law professor specializing in criminal law. “Even if there was a violation of his due process rights, this is harmless error. It would not have affected the results, the ultimate outcome of the case.”

While results from polygraph exams are not allowed in criminal court because science has shown they are not always reliable, courts have ruled the exams are allowed in administrative matters.

Levy also brought up another appeals court ruling — more recent than the Gonzales case — involving a Lafayette Police officer who was fired and wanted his job back also because of how a polygraph exam was administered. The 3rd Circuit Court of Appeal upheld that termination even though his attorney was not allowed in the room during the polygraph exam. 

“It would be nice if it went up to the Louisiana Supreme Court to decide this, because this looks like a trend that’s developing and should probably be resolved," Levy said. 

Ronald Haley Jr., another attorney for Howard, said his main issue in this case is how the laws are set up to better protect an officer than a civilian. 

"If accusations are brought up against a civilian and there is something procedurally done wrong, the remedy isn’t to throw the entire case out," Haley said, just strike the questionable evidence from the case.

Dedrick Moore, the attorney for Hamadeh, said if the termination is overturned solely because of the polygraph, it would show a bigger issue about how the city's police department cannot adequately address police misconduct. 

"The reasons why they fired him are legitimate reasons and they are giving too much weight to the polygraph," Moore said. 

Follow Grace Toohey on Twitter, @grace_2e.