Baltimore County Circuit Court judge lets convict take polygraph

Daily Record, The (Baltimore), Aug 27, 2008 by Danny Jacobs

The truth will not set Trent Lee Banks free, but it could shave a few years off his 45-year sentence.

Banks, 29, was granted permission Tuesday to take a polygraph test in an effort to reduce the five-year sentence for violating probation he received after being convicted last year on two counts of attempted second-degree murder.

But, after a hearing in Baltimore County Circuit Court, Judge Lawrence R. Daniels set explicit conditions: Banks must pay for the qualified polygraph examiner; he must undergo a urinalysis test concurrent to the polygraph; passing the test does not automatically mean the sentence will change; and the results will have no impact on his second-degree murder conviction.

"I believe it's in the interest of justice that Mr. Banks takes the polygraph test merely so I can use it as a tool to determine if his sentence is appropriate in this case," Daniels said. "It's an investigatory tool and I'm using it as a sentencing tool."

Despite Daniels' stipulations, prosecutor Stephen Roscher objected in part because Banks would be responding to questions about charges for which he was already convicted. Judge Susan Souder denied Banks' post-conviction petition in the same court in June.

"I would say that this matter has been fully and finally litigated," said Roscher, an assistant state's attorney who handled the attempted murder case. Roscher also sent Daniels a letter in opposition to the polygraph.

Shooting denied

Daniels originally sentenced Banks to six years in jail following a November 1998 conviction on robbery charges. Banks' sentence was modified in 2003, when he was released and placed on five years' probation, court records show. Banks was also placed on probation in 1999 on charges of unlawfully taking a motor vehicle, according to court records.

Banks was indicted in April 2006 in the attempted murder of his then-girlfriend, Ebony James, and her friend, Kimberly Horton. Banks shot at James and Horton as they drove away from his house after James slashed his car's tires, according to the charging documents. The couple had been arguing about Banks' alleged cheating on James, the charging documents said.

A jury convicted Banks in February 2007, and two months later Judge Robert E. Cahill Jr. sentenced him to 35 years in jail. Judge Judith C. Ensor then added a consecutive five years for violation of Banks' probation in the motor vehicle theft case, and Daniels added another five years, also consecutive, for the violation of his probation in the robbery case.

Banks has maintained he did not shoot at James' car, and during his trial James recanted her initial statements to police indicating Banks was the shooter. Roscher, who successfully countered with shell casings found at Banks' home and inconsistencies in Banks' statements, expressed concern Banks would use a favorable polygraph test to "attack" the conviction.

Roscher cited state appeals court opinions finding polygraphs inadmissible in court and paraphrased a 1992 Court of Appeals opinion.

"In criminal prosecutions, the polygraph test is a pariah; 'polygraph' is a dirty word," the court found in State v. Hawkins.

Under Daniels' questioning, Roscher acknowledged that prosecutors use polygraphs in cases involving possible sex offenders but said the tests are seen as an opportunity for an additional interview agreed to by the accused. Even if the accused passes the test, prosecutors will pursue a case if they believe the victim, Roscher said.

Daniels offered Roscher the chance to write the questions Banks will be asked, but Roscher declined. Daniels said he would write the questions and give the results of the test to prosecutors.

Banks, who represented himself at the hearing, said he had a qualified polygraph examiner who would contact the judge's chambers to set up the test.

Following the hearing, Roscher said he could only remember two times in his more than 30 years as a lawyer when defendants requested the use of polygraph results in court. Judges denied both pre-trial motions, he said.