Earlier this month, defense counsel for Whaley disclosed to the District Attorney for the first time that Whaley had passed a polygraph examination in 2012 shortly after the indictment was returned. The examination was conducted by a retired Georgia Bureau of Investigations agent. Late last week, this agent agreed to meet with the District Attorney, with Chief Assistant District Attorney Scott Minter, who manages the Murray County Office, and with Special Agent Joe Montgomery of the Georgia Bureau of Investigations who worked the case and who had presented the evidence to the Grand Jury. At the meeting, it was determined that the polygraph results were both reliable and exculpatory.
In Georgia as in many other states, polygraph results are not admissible in evidence unless the examination is stipulated or agreed to by both the State and the defense prior to the administration of the test. The 2012 polygraph examination therefore could have been excluded from the jury’s consideration had the case proceeded to trial as planned next month. Nevertheless, given the particular circumstances of the 2012 polygraph examination and the particular credibility of the examiner, it would be unfair and unjust to proceed to trial against Mr. Whaley. The medical evidence in the case, while compelling, is now directly contradicted by the polygraph results.
A copy of the motion signed by Judge Cindy Morris follows:
IN THE SUPERIOR COURT OF MURRAY COUNTY
STATE OF GEORGIA
STATE OF GEORGIA Case No. 12-CR-010
Cruelty to Children in the Second Degree
MOTION TO ENTER A NOLLE PROSEOUI
COMES NOW the State and moves this Court to enter a Nolle Prosequi in the above-styled case.
Jaidyn Whaley, a four-month old child, died on November 19, 2010 at Erlanger Hospital jn Chattanooga, Tennessee. Several Erlanger doctors who treated Jaidyn after she was airlifted from Murray Medical Center on November 17, 2010, examined her and found evidence of head trauma that was inconsistent with the history provided by the Defendant who had been her sole caretaker on the day that she stopped breathing and had to be rushed to the emergency room. An autopsy performed by the Medical Examiner's Office for the Georgia Bureau of Investigations, Division of Forensic Sciences, confirmed significant head trauma including subdural hematoma and diffuse retinal hemorrhaging. The conclusion of the medical examiner, Dr. Lora Darrisaw, a regional expert in the area of pediatric pathology, was that Jaidyn suffered her injuries as a result of abusive head trauma in a manner commonly referred to as shaken baby syndrome. As it was undisputed that the Defendant had been alone with Jaidyn when she became symptomatic, and as all of the doctors concurred that symptoms such as unresponsiveness and failure to breath would have presented almost immediately following the injuries, the State presented
evidence to the Murray County Grand Jury in February of 2012 after which the Grand Jury returned the
true bill of indictment in the present case.
Unbeknownst to the State, the Defendant obtained counsel shortly after the indictment and at the
behest of counsel, submitted himself to a polygraph examination conducted by Jerry Rowe, a retired
polygraphist with the Georgia Bureau of Investigations who at the time was working part time
conducting polygraph examinations for the Bartow County Sheriffs Office. Mr. Rowe is currently
employed as the Director of Polygraph for the Department of Juvenile Justice's Office of Internal
Investigations. During the examination, questions were asked concerning whether the Defendant had
caused Jaidyn's injuries or knew how she had obtained her injuries. The Defendant answered in the
negative and no deception was indicated as to any of the questions. Given the amount of and violence
of the shaking that would have been required to cause her injuries, and given that the symptoms of injury
would have presented almost immediately, there is no way that the Defendant could have caused the
injuries and not known that he was the cause.
Not long after this polygraph examination, the Defendant obtained his present counsel, who
failed to inform the State of the polygraph test for over a year, finally informing the State earlier this
month (September, 2013). Polygraph examinations not stipulated to by both the State and the Defendant
are not admissible at trial (see State v. Chambers, 240 Ga. 76 (1977) and its progeny) and the State is
generally skeptical of unstipulated polygraph examinations conducted without the State's input as to the
manner of questions that should be asked. Polygraph is a reliable science, but polygraphists are human
so polygraph results are only as good as the person who obtains them and the examiners personal
credibility plays a significant part in the evaluation of those results.
After learning of and obtaining a copy of this polygraph report, the State set up a meeting which
was held on Friday, September 13, 2013 at the Murray County Courthouse. The meeting was attended
by the undersigned District Attorney, by the Chief Assistant District Attorney, Scott Minter, by the lead
investigator in the case, Special Agent Joe Montgomery of the Georgia Bureau of Investigations and by
the polygraphist, Jerry Rowe. Special Agent Montgomery has worked with Mr. Rowe for several years
and was able to vouch for his credibility and reliability and further stated that if we had sought to conduct
a stipulated polygraph in the case, he would have likely recommended Mr. Rowe as the examiner. After
an extensive discussion with Mr. Rowe it was determined that the examination was conducted in a
manner consistent with normal law enforcement techniques and that the questions asked were
appropriate to the facts of the case. Mr. Rowe felt that his results were reliable and did not observe any
indication that the Defendant had been coached or otherwise trained in any manner to try to defeat the
This development has placed the State in an unusual position. Since the polygraph results are
not admissible in evidence, the State could proceed to trial with admissible evidence, primarily the
testimony of medical doctors, which would be sufficient to support a verdict of guilty. However, the
role of the prosecutor is to seek justice, not to seek convictions. (See e.g. American Bar Association
Standard 3-1.2(c)). As the State's case is predicated on the expert interpretation of scientific data,
specifically Jaidyn's observable injuries, and as the polygraph examination presents a contradictory
expert opinion based on scientific data, that being the measurements of the polygraph equipment, and as
the State has no basis on which to prefer one set of expert opinions over the other, the undersigned
cannot ethically take the case before a jury and ask them to convict on the basis the medical evidence
alone. The Defendant must be given the benefit of the doubt created by this conflict and not placed in
jeopardy of receiving a life sentence if there is even a possibility that the polygraph results are accurate
and the medical evidence has been misinterpreted. Given the particular trustworthiness of this
polygraph examiner, the State is persuaded that there is more than a mere possibility that his results are
For these reasons, the State now respectfully requests that this Court end the prosecution of the
Defendant by entering an order of Nolle Prosequi in the above-styled case.
Respectfully submitted this 17th day of September, 2013.
CONASAUGA JUDICIAL CIRCUIT
The State's Motion to Enter a Nolle Prosequi having been read and considered, the Court hereby