Lemons: DCS Director's Memo Allows Orwellian Interrogations

Greg McKay, Director of the Arizona Department of Child Safety, has some 'splainin' to do.

Just last week, Governor Doug Ducey announced that the problem-plagued department had finally beaten down its backlog of 16,000 cases to less than 1,000. But now, an Orwellian memorandum has surfaced outlining how employees for the department's Office of Child Welfare Investigations can covertly record interviews for something called "Computer Voice Stress Analysis," a technology some claim can detect truthfulness.

The seven-page memo was, until recently, online at DCS' website, under administrative policies for the department's OCWI. That's the unit that does investigations, in partnership with law enforcement, of possible criminal conduct involving the abuse of children.

The link for the document is no longer active, but it is still extant in Google cache.

DCS policy number 13-01 gives its effective date as being December 23, 2016, an interesting day to post a controversial new order. It details both covert and overt interviews that can be conducted by a "CVSA examiner" to verify or refute statements, gather leads, and narrow investigations.

Just about anyone 18 and above who "knows right from wrong" — and is not facing criminal charges or a grand jury indictment — can consent to an overt CVSA interview. Minors need the consent of a parent.

For "covert" interviews, according to the document, neither notice to nor the consent of the interviewee is required. The policy states that the individual being interviewed must be "the subject of a criminal conduct investigation" and is "refusing to meet with the department."

It is not clear from the document whether children would be subject to a covert interview without notice to or consent from the parents.

The policy was discovered by Phoenix attorney Gregg Woodnick, who specializes in family law. He was preparing a continuing legal education class in DCS cases for his fellow attorneys when he ran across the document online in the department's massive policy procedure manual.

Needless to say, his eyes bugged out when he saw it; when he shared it with other attorneys who practice in this area, their peepers did likewise.

"It's pretty earth-shattering," said Woodnick. "OCWI — these are not police officers, just DCS case workers. That they would consider secretly audio recording and then using voodoo science [to analyze it] — there are a million problems with it."

One problem, according to Woodnick, would be that since OCWI works hand-in-hand with law enforcement, it naturally would share the results of this voice-stress analysis with the cops, who might decide from the jump that a parent being questioned on suspicion of wrongdoing is lying.

"Obviously that changes an entire police investigation," Woodnick explained. "It's very, very troubling."

Woodnick said that though the results, like those of a polygraph test, would not be admissible in court, the information could be used to trick people into confessing to a crime that they did not commit.

A judge normally should not consider such information during a DCS removal case, but Woodnick told me that DCS workers could have that information in the case file, which a judge might see. Un-ringing that bell could be a tough one, especially when the fate of a child is involved.

Woodnick says he confronted McKay's general counsel about the memo during an interview he had with her last week, in preparation for a discussion he was scheduled to have with McKay himself, which Woodnick also said was for the CLE class he planned to teach.

The general counsel declined to comment regarding the memo, according to Woodnick.

Contacted for this article, DCS spokesman Darren DaRonco acknowledged the memo was legit, but he said the department was planning to rescind the part that has to do with "covert" investigations.

DaRonco also said that no covert interviews had ever been done by the department.

In a follow-up e-mail, he explained:

"Computer Voice Stress Analysis is a tool in investigations that helps determine the truthfulness of a person's statements by the use of an instrument that merely records the examinee's voice and discerns between the AM and FM modulations in the voice."

But former Assistant Attorney General Jennifer Kupiszewski says that even without the "covert" element, the policy is unacceptable.

Kupiszewski worked with DCS' previous incarnation Child Protective Services, while she was with the AG's office. She is skeptical of the department's reaction to recent questions about the OCWI document.

"It was public knowledge, it's been on their website," she told me when I asked her opinion of the memo. "As if, 'Oh, we didn't mean that'? Those policies take a long time to develop. So someone put a lot of thought and time and effort into working up that covert portion."

She also said that the policy was a red flag, signaling that DCS was getting away from its core mission, and acting more like a law-enforcement agency than a social service agency.

"Their federal mandate is to investigate, obviously, claims of child abuse or neglect," she stated. "But then they're supposed to be working to remedy the situation by offering the parents services, and the child services, and keeping families together, and then if they have to remove a child, reuniting families."

She added, "I don't know how to do that if they're acting like they're the police."

Which, they are not.

Jack Lane, executive director over at the Arizona Peace Officer Standards and Training Board, which certifies all cops in this state, told me via e-mail that, "They have no certified peace officers with DCS."

Director McKay, once hailed as a whistleblower as the head of the OCWI, was appointed to his current position with DCS in 2015 by Governor Ducey.

McKay's tenure has been contentious. He is a former detective with the Phoenix Police Department and his skill set has been regarded as an issue by his critics. Kupiszewski says the CVSA policy is evidence of McKay's cop mentality.

"DCS is run by a former police officer whose focus is on law enforcement," she said. "The focus appears to be on investigating and not on figuring out what the family needs and either keeping them together or reuniting them."

Over at DCS, DaRonco did not have immediate answers to some questions, such as the name of the vendor for the CVSA.

Online, a Florida company, NITV Federal Services, claims proprietorship of the Computer Voice Stress Analyzer, which its website states is used by 24 state agencies in Arizona.

A call to the company was not immediately returned. A YouTube video for the product claims a 98 percent accuracy rate, and that CVSA examiners can be trained in about a week.

The software can even analyze truthfulness from old recordings, the video promises. It also has no language barriers, and "drugs and medical conditions don't affect tests."

But a 2008 article published by the National Institute of Justice, the research arm of the U.S. Department of Justice, throws water on some of these claims. The report found that the two most popular voice stress analyzers, including CVSA, "are no better than flipping a coin when it comes to detecting deception regarding recent drug use."

However, the article also notes that "the mere presence of a VSA program during an interrogation may deter a respondent from giving a false answer."

Even if McKay ditches the covert use of such technology, the overt use of it seems dubious as well.

Personally, I wouldn't want a cop deciding whether I was lying based on the supposed stress level in my voice, covertly or overtly.

I mean, why is it that cops and former cops like McKay never seem to get the point that interacting with them can be stressful all by itself?

And I'm certain that anxiety is multiplied exponentially if you think your child's well-being is implicated in any way.

Whole thing reminds me of that video of the interrogation of Leslie Merritt, Jr., once suspected of being the I-10 shooter, before it was revealed that he had been railroaded by Arizona Department of Public Safety.

After Merritt's arrest, DPS officers told him that they had incontrovertible evidence that he was their man. They claimed to have video of Merritt that backed them up. They said the ballistics linked his gun to the crime.

In reality, the DPS officers involved were lying their asses off about video and other evidence. All they had was DPS' own ballistics, later proven to be bogus.

Cops are allowed to lie when they interrogate you. So what's to stop them from using some voice-stress analyzer to accuse you of lying and maybe coerce you into confessing?

Nothing. The CVSA may not be admissible in court, but your confession damn sure will be.

Should a social service agency be using CVSA to test veracity, even if all they do is hand the info over to the cops?

My answer is an emphatic, "Oh, hell no!"

Read the Orwellian DCS policy giving the green light to secret interrogations using computer voice stress analysis.