A federal lawsuit filed by a man who spent three years in prison after a polygraph examiner was allowed to opine on the man’s guilt in testimony before a jury is going forward.
Plaintiff Emmaneul Mervilus, who had his first conviction reversed and was later acquitted by a second jury, filed the suit against Union County and individual defendants, including the polygraph examiner, alleging that they violated his constitutional rights.
On Wednesday, U.S. District Judge Esther Salas, sitting in Newark, denied the defendants’ motion to dismiss, saying Mervilus had pleaded sufficient facts to make out a case. Salas also rejected defense claims of sovereign immunity, and a presumption of immunity for witnesses.
“Although the Union Defendants acknowledge that Mervilus sued them in their individual capacity, they argue that, ‘but for their employment as government employees, they would not have been involved in the criminal prosecution of’ Mervilus,” she wrote. “The Court is unpersuaded. Both the Supreme Court and Third Circuit have rejected this argument.”
Mervilus’ complaint, the judge said, is “comprehensive and specific.”
Mervilus’ criminal case goes back years. In 2011, the Appellate Division said allowing the polygraph expert to offer an opinion on Mervilus’ guilt or innocence constituted reversible error. The expert “may not invade the jury’s province by expressing an opinion as to defendant’s guilt. Nor may an expert accomplish the same improper goal indirectly,” the appeals court said.
According to court papers, Mervilus was charged with robbery and assault after being identified by Miguel Abreau as one of three men who assailed him in Elizabeth. After being stabbed, Abreau flagged down two officers and pointed to two men, including Mervilus, walking down the street.
Abreau later identified Mervilus and the other defendants through a photo array, but was unable to do so later at trial, the papers said. During his testimony, he mistakenly identified a courtroom spectator as one of the men who attacked him, they said.
Before trial, Mervilus, who was represented by an attorney, agreed to take a polygraph test. He denied being involved in the attack, but the polygraph examiner, Elizabeth Police Lt. John Kaminskas, concluded he was not telling the truth, according to the papers.
Mervilus said he was distraught over the recent death of his mother, and asked to take another test, but Kaminskas said no, the court noted.
Both sides stipulated that the test results could be admitted into evidence, and Union County Superior Court Judge Douglas Fasciale allowed Kaminskas to testify without first holding a Rule 104 hearing. During testimony, Kaminskas repeatedly referred to the reactions of people who were “innocent” or “guilty,” or who were “telling the truth” or “lying,” court papers said. Kaminskas said 60 percent to 70 percent of people who took a polygraph test were telling the truth, but that “in my opinion … [Mervilus] wasn’t telling the truth.”
As for the polygraph, Kaminskas said it was “not just a lie detector [but] also a truth detector.”
In the 2011 ruling, Appellate Division Judge Susan Reisner, joined by Judges Carmen Alvarez and Joseph Lisa, said Kaminskas gave evidence “designed to convince the jury that polygraph tests are infallible,” and impermissibly used the words “innocent” and “guilty” over and over.
“Not only did he use those words to describe the test takers, but he told the jury that a ‘guilty’ subject would be more nervous that an ‘innocent’ one,” she said. “He testified that a person who ‘reacts more’ to the relevant test questions was ‘lying.’”
Although Kaminskas “did not explicitly state that he believed defendant was guilty, his testimony implicitly constituted an opinion on defendant’s guilt,” the appeals court said.
The panel noted that the state Supreme Court in 1972 ruled in State v. McDavitt that polygraph results could be admitted if both sides stipulate to it and the defendant was represented by counsel at the time. Reisner said that even though the judiciary still regards polygraph tests as unreliable and likely to cause juries to find innocent people guilty, the court chose to not overturn McDavitt when it revisited that ruling in State v. A.O. in 2009.
Mervilus was retried in 2013 and acquitted.
He named Union County, the Union County Prosecutor’s Office, Kaminskas and now-retired Union County Police Chief Daniel Vaniska as defendants in his civil suit, filed in 2014.
In her ruling on Wednesday, Salas said, “A claim has facial plausibility when the plaintiff pleads factual content that allows a court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” relying on the U.S. Supreme Court’s 2009 ruling in Ashcroft v. Iqbal.
As for witness immunity, Salas said she “generally agrees” that Kaminskas would likely be covered by witness immunity for his trial testimony.
“But Plaintiff is also correct that Kaminskas is likely not insulated from liability for certain non-testimonial pretrial conduct,” she added, noting that Mervilus “alleges that Kaminskas committed unconstitutional ‘non-testimonial acts.’”
“This kind of conduct appears to fall off the scope of absolute witness immunity,” she said.
Assistant Union County Counsel Steven Mermen, who represented the defendants, declined to comment.
Mervilus’ attorney, Richard Rosa of Hartmann, Doherty, Rosa, Berman & Bulbilia in River Edge, could not be reached.