The Lie Detectors (8 page)

It was true, he acknowledged, that courts often heard from fingerprint experts and other experts, including alienists who reported on the mental states of suspects; so why not Marston, a qualified Ph.D. in psychology? The difference, he explained, was that lie detection was not yet "a matter of common knowledge." Of course, science had made stunning progress in the past generation: airplanes, radio, telephones. A time might come when lie detectors were as common as telephones, whereupon trials would be conducted on the basis of a "mere record" of the defendant’s truthfulness. By that time, however, he expected to be dead (a sentiment expressed so as to suggest it was his preference). Until then, "the jury looks at the witnesses, hears what they have to say, compares their statements with other statements, and so forth; and then does what human beings do out of Court when they determine whether or not a man is telling the truth." That, he said, "is what the jury is for."

On July 20, 1922, the jury did what it was for and found Frye guilty of second-degree murder, and soon after, Judge McCoy, doing likewise, sentenced Frye to fifteen years. (The relatively light verdict, Marston claimed, was a sign that his exonerating test had somehow reached the jury.)

Even so, Frye’s lawyers appealed. But in a terse opinion, which cited neither precedent nor authority, the court of appeals of the District of Columbia upheld the lower court’s rejection of the test. In doing so, it laid down a rule that would ban the lie detector from criminal courts for the rest of the century and set criteria for the admission of all scientific evidence for the next sixty years.

The ruling made no mention of the objection that had haunted Judge McCoy’s refusal and had been raised in the prosecutor’s appeal brief. "If such tests ever are adopted," McCoy warned the court, "it is probable that the jury system will have to be abandoned." Nor did the ruling turn exactly on whether lie detection was "common knowledge," as Judge McCoy had proposed. What mattered, the court of appeals declared in 1923, was whether the science was widely deemed acceptable by the relevant scientific experts. The "Frye rule" was simple and flexible. Instead of having judges evaluate new science themselves, it made them into black-robed pollsters of scientific opinion—while retaining control over who was to be polled.

In the Frye ruling, in the absence of any poll, the court of appeals took judicial notice that the lie detector had yet to gain "general acceptance in the particular field to which it belongs," and upheld the verdict. For the next seventy years, despite various challenges, the ruling acquired the status of a Supreme Court precedent, both with regard to the lie detector and with regard to scientific evidence in general.

Three years later, the eminent law professor Charles McCormick did poll the group he deemed the most "relevant" scientific experts, his colleagues in academic psychology. Of the thirty-eight scientists who responded to his inquiry, eighteen partially favored presenting the technique to judges and juries, thirteen opposed its introduction, and seven were of "dubious classification." Among the enthusiasts were William Marston; Robert Mearns Yerkes; and Walter Dill Scott, a business psychologist who was the president of Northwestern University. The naysayers included luminaries like the behaviorist John B. Watson, who declared it "a thing for the laboratory for another 25 years," and others who ascribed Marston’s and Larson’s success to their personal skills at interrogation, rather than to the science of psychology per se. Several also worried that the scientific trappings of the technique would be overly persuasive to a jury.

In short, these academic psychologists dismissed the lie detector because it simultaneously challenged and exploited their discipline’s newly won scientific authority. This authority was founded on the presumption that sophisticated experimenters had the upper hand on naive human subjects, and could treat mental properties as natural objects, not unlike those studied by physics, chemistry, and biology. Watson’s ascendant school of psychological behaviorism took this attitude so far as to deny that subjects had minds worthy of investigation. Thus, to accept the core premise of the lie detector—that some subjects willfully deceived investigators—would have forced psychologists to confront the fact that their work was unlike the work of their scientific colleagues; that their experimental subjects approached psychological tests with their own agenda; and that some subjects even carried the day. Already, one researcher at the Harvard lab had discovered that subjects who discerned the goal of the experiment could escape detection; indeed, sophisticated subjects might even "prevent detection of their sophistication." Marston himself, working with his wife, not only had begun to recognize the diversity of liars—male and female, black and white, eager and clumsy—but now announced the shocking discovery that subjects’ reactions depended on the qualities of the examiner: for instance, whether the examiner was a man (Marston himself) or a woman (Marston’s young wife). It was a radical thought; psychology—Marston was saying—was not like other sciences.

Today we are less surprised by the "discovery" of something so obvious than by the unwillingness of these psychologists to acknowledge it. But on reflection, their unwillingness is not so hard to understand. To acknowledge their subjects’ trickery would have obliged them to counteract these deceits with deceptions of their own. Not for another three decades would psychologists embrace experimental dishonesty to preserve subjects’ naiveté. For the time being, to dismiss the lie detector was to affirm the highest scientific value they knew: professional honesty.

Though Larson was not included in the survey, its author consulted closely with him. In the interim, Larson had come under conflicting pressures. On the one hand, he had been scolded by the California State Medical Association for abusing medical techniques. On the other, he was under pressure from Vollmer to validate these techniques. Under these constraints, Larson took a stand that squared his scientific principles with his ambitions as criminologist. The time had not yet come for the lie detector to be used in court, but the technique remained a legitimate tool in police investigations.

Larson’s position dovetailed neatly with the Frye rule. It allowed the machine to flourish in the largely unregulated world of police investigation, even as it denied the lie detector entrance to the courtroom. It acknowledged that psychology had turned its back on the technique, even as it left open the possibility that the technique might one day be validated by scientific opinion. Larson hoped this day was not far off. He told McCormick of an innovative new machine for lie detection then being assembled by his disciple Leonarde Keeler. He even hoped Keeler’s more sensitive and reliable apparatus might resolve the Wilkens murder.

A detective official in San Francisco once substituted "truthful" for "voracious" in one of my reports on the grounds that the client might not understand the latter.

—DASHIELL HAMMETT, "FROM THE MEMOIRSOF A PRIVATE DETECTIVE," 1923

THERE ARE CONFLICTING STORIES OF HOW LEONARDE
Keeler first got hooked up with the lie detector. To hear his father tell it, his father deserved the credit. According to Charles Keeler, Berkeley’s most famous poet, he was visiting his dear friend August Vollmer when the Chief showed him a "psychological chart." Intrigued, Charles asked the Chief to show the chart to his son, Leonarde, then a high school student recuperating from an illness. The Chief had known Leonarde since Vollmer’s days as village mailman, when he had hauled his two-wheeled cart up to the family’s isolated redwood house on the barren slopes of Berkeley. "Send him down," the Chief responded. Soon young Keeler was working on the machine to the exclusion of his studies.

In Chief Vollmer’s version, told as part of his eulogy for Leonarde Keeler, it was the Chief, not Charles, who advised the young man to take an interest in lie detection. Young Keeler—whom the Chief had come to regard "with the affection that a father would a son"—had been feeling listless and apathetic, so Vollmer let him watch John Larson extract a confession from a burglary suspect. "From the moment that Nard saw [this], his life took on new meaning, and his mind and body seemed to be charged with energy."

But there was another episode which put Keeler in Vollmer’s office, one that neither his real nor his adoptive father had any wish to recall. Apparently, Leonarde and a frolicsome high school buddy, Warren Olney, had been grilled by the Berkeley police after an eyewitness saw the two youths jump out of a Cole Aero-Eight waving a gun and run into a store in Oakland’s Chinatown. Quick detective work enabled the police to nab Olney, who admitted to a mustachioed tough cop, Frank Waterbury, that he and Leonarde Keeler had indeed borrowed his father’s car and gun. Brought in for questioning, with bright lights shining in his eyes, Keeler confessed that the boys had been organizing a high school circus for which he would perform a magic disappearing act punctuated by pistol shots to misdirect the audience. They had driven into Chinatown to purchase some blanks for Olney’s father’s gun—Olney’s father being at the time an associate justice on the California supreme court—and to buy exotic incense for Keeler’s sister’s performance as a snake charmer. This was absurd enough to be credible, and the boy’s parents demanded that Vollmer reprimand the arresting officers. This the Chief refused to do, though he did dismiss all charges. After all, no one in Chinatown had filed a complaint.

In later years Warren Olney became legal deputy to Alameda County’s rising young district attorney, Earl Warren, and followed him to Washington to serve as the head of the Justice Department’s Criminal Division. Leonarde Keeler also slid around to the other side of the interrogation table. Olney always got comical satisfaction from the fact that in his youth he and his pal Keeler, acknowledged master of lie detection, had been grilled by a cop so suspicious that no amount of contradictory evidence could shake his theory. And all his life, Keeler continued to practice sleight-of-hand tricks and amateur magical acts.

But the tough cop, Frank Waterbury, never forgot the tale either. Forty years later, when Keeler was dead, he wrote up his version for an elderly, embittered John Larson, his fellow veteran of the Berkeley police force. Back in the bad old days, he told Larson, he had once arrested that "snake charmer and rotten liar" Leonarde Keeler for pulling a gun on a Chinaman on the corner of Fourth and Franklin. It was a story that confirmed everything Larson had come to believe about Keeler, his first disciple and his greatest regret.

As for Leonarde Keeler, in his version of how he met his daemon, he strode jauntily into Larson’s lab confident that he could beat the machine "easy"—and got caught the first time out.

In fact, the first thing Leonarde did with the lie detector was what any high school student would do, at least in the liberated 1920s: he dug into his friends’ love life. His sister recalled how he interrogated her best friend "Chickie" in the dank police lab in the basement of City Hall. When he asked her if she loved Curtis or Harry, the answer was twice no. But when asked, "Do you love Charlie?" the needles lurched, the onlookers laughed, and Chickie blushed bright red. "It’s true," she confessed. "I do have a kind of crush on Charlie. But I never dreamed anybody would find out." The machine was so potent that when Leonarde put his sister on it, she fainted. "I imagine I was afraid you might detect certain hidden thoughts," she told him. Everyone knew that Eloise adored her older brother—worshipped him, really. Both children were subject to periodic fainting spells. Eloise, after years on the psychiatrist’s couch, came to blame her attacks on their father. She wanted so badly to please him and always failed. Keeler never hazarded a guess about his own tendency to black out, though he too spent half a year in psychoanalysis with a lie detector strapped to his ankle and the topic often reverting to his father.

Charles Keeler fancied himself a scientist as well as a poet and the founder of a new world religion. His greatest contribution, however, was a new aesthetics of living, which would come to define California’s bohemian bourgeoisie. Charles’s romantic sensibility conceived of no boundary between art and nature, mind and body, morality and necessity. While still in college he dabbled in spiritualism and mind reading. At twenty-two he published a Darwinian treatise that explained the beautiful plumage of male birds as the outcome of an alignment of inner striving (avian exuberance at mating time) with outer necessity (competition for females).

Charles Keeler was himself a male bird of fine plumage: six feet tall, trim and handsome, with dramatic eyes, hollow cheeks, and glossy black hair that fell like curtains on either side of his forehead. He hated barbers. Even for an ordinary commute on the ferry across the bay, he affected a black cape and a gold-headed cane. He had traveled to Cape Horn, Alaska, and the South Pacific, and he cultivated the friendship of older artists and intellectuals: the landscape painter William Keith, the naturalist John Muir, the architect Bernard Maybeck.

In the year of his Darwinian treatise, Charles married one of Keith’s pupils, a sixteen-year-old Berkeley girl named Louise Mapes Bunnell, in whom he saw a chance to consummate his moral and aesthetic ideals. She would illustrate his poems with beaux arts woodcuts. He would pose for her in Athenian robes, a wreath of flowers in his hair, while declaiming his poems in a booming voice which "could fill stadiums." One of his allegorical works, "The Truth," began:

Keeler’s next step toward this new mode of living came when he gave Bernard Maybeck his first private commission: a house on an unspoiled hillside just north of the university. As the antithesis of the "wedding cake" houses back east, this house would be "simple and genuine," conforming to the site and clime. Under its generous peaked roof the interior walls and rafters were of unadorned California redwood. Persian rugs trailed across the floors, Chinese lanterns hung from the ceiling, and the bookcases gleamed with leather. And lest neighbors spoil his vision (and his view), Keeler induced his friends to commission Maybeck homes in the vicinity. In his manifesto of 1904,
The Simple Home,
Keeler wrote that a residence must not just mirror nature out-of-doors but offer "a genuine reflection of the life which it is to environ." A home, like its inhabitants, was to be honest, direct, and beautiful, dedicated to "the conviction that we must live art before we can create it." Its finest work of art was the family.

Leonarde Keeler was born into this home on October 30, 1903. His father named him after Leonardo da Vinci, he later explained, in the hope "that you would grow up to be one of the great contributors to the thought of this wonderful generation in which we live." But as young Keeler grew up, he preferred to be known less grandly as "Nard."

Calamity struck when Leonarde was two. His father managed to snatch him to safety when the San Francisco earthquake nearly brought Maybeck’s chimney down on his head, but the strain of caring for the earthquake’s many refugees took a severe toll on Charles’s wife. Despite hypnotism and mental cures, she was dead within a year. Charles Keeler was never the same afterward.

He rented out his ideal home, packed his children off to their maternal grandmother on the opposite side of Berkeley, and set out on a two-year round-the-world poetry tour. In 1913 he returned briefly to Berkeley to discover ten-year-old Leonarde stealing money from his grandmother to buy candy for his neighborhood gang, to whom he was in thrall. Charles consulted his friend August Vollmer, and resumed the old technique of plying the boy with hypnotic suggestions while he slept so as to substitute "courage and initiative" for "subservience to the mob and cowardice." Night after night, he sat beside his sleeping son, repeating the words: "Leonarde, you hear me speak. You are brave, you have great courage. You are independent. You make your own plans and work them out for yourself." Charles believed that truthfulness could be "indoctrinated." Only later did he concede the contradiction.

That fall Charles brought his children back east, placing Leonarde in the Hackley School in Tarrytown, New York, while he tried to make his name as a poet in Manhattan. But America’s taste for enchanted verse was wearing thin amid the slaughter of World War I, and Charles’s inheritance was nearly spent. In 1916 the family returned to Berkeley and moved into a Maybeck-inspired studio in a secluded canyon on the southern edge of town. To pass under the Japanese torii gate and cross the bridge between the redwood trees was to enter a California of early settlement. In a shed out back, Leonarde kept a menagerie of reptiles, as well as a wireless set. On the hillside below Charles performed his neo-Athenian poetry—to the acute embarrassment of his children—until the great influenza epidemic closed the theater, and Charles, most piteously, caught the flu. He was nursed back to health by an assistant principal at Leonarde’s progressive school. They married in 1921. An adulator of women who adulated him, he never strayed far from home again.

Flamboyant, fusty, and self-important: Charles Keeler was a would-be prophet in an age that mocked idealized harmonies. In the early 1920s, he found two new outlets for his energy. His Cosmic Religion was a Bahai-like creed that sought to unite all the world’s prophets and peoples under the divine trinity of "love, truth and beauty." Its devotional meetings consisted of Chautauqua-style talks on parenting, evolution, eugenics, bird-watching, invention, and the arts and crafts—all given by Keeler. If successful, he predicted, it would become "the greatest single contribution to humanity of modern times," though he admitted that he did not expect this to happen during his lifetime. Attendance soon dropped from sixty to ten, and he was disappointed when neither Palo Alto nor Hollywood established a chapter.

At the same time, in desperate need of money, Keeler took a position as secretary for the Berkeley Chamber of Commerce, placing his prolific pen in the service of "the most beautiful city in the world." From this position, he helped his friend Chief Vollmer block a merger with Oakland that would have unraveled Berkeley’s police department. The idealist poet and the pragmatic cop were unlikely allies, but they were united by a common vision of Berkeley: the dream of an honest polis. While Charles led a moral and aesthetic regeneration in the Berkeley hills, Vollmer set out to police the unruly flats. Their most famous collaboration would be Leonarde.

In his youth Leonarde alternated between feats of physical prowess and bouts of disabling illness, leaving him little time for school. He was active in the Boy Scouts, making forays along the Russian River, building barracks, and organizing Liberty Loan drives. Pictures of him at age fourteen show a handsome, self-assured youth, wiry and tanned, with tousled hair, gazing frankly at the camera. Then at the age of fifteen—the year of the "great influenza"—he suffered a severe streptococcus infection which affected the valves of his heart and the lining of his brain. In the hospital he heard the nurses say he was at death’s door. His father smuggled in a Christian Scientist who ordered Leonarde to rise—the first steps, Leonarde later recalled, in his recovery. He convalesced at home, caring for his snakes and photographing birds—though vulnerable to fainting fits. In his senior year at University High, while on an expedition with the John Muir Club, he developed acute appendicitis and was again hospitalized for several months. During his recovery, he became entranced with Larson’s machine and its power to compel the body to be honest.

It was Vollmer’s fond ambition to have his two young disciples collaborate on the lie detector. While Larson validated the method scientifically, Keeler would handle the practical business of redesigning the instrument. All that would be necessary, Vollmer believed, was that they keep one another apprised of their progress in their respective domains.

For a time Keeler persisted in his other pursuits. He led expeditions of young women into the high Sierras for pay and pleasure. Women were charmed by his resilience and vulnerability, as well as his physical grace. The future dancer and choreographer Agnes de Mille was one of these. The party flirted, clowned for the camera, drew sketches. On the final day Keeler led a smaller party above the timberline. "This is my land," he told Agnes as they looked down on the granite basin. "This is the California I love. I have to come back at regular intervals. I know it is here, and I draw my strength from it. Whether I see it or not. It is here."

Keeler was comfortable in his body’s lithe strength. He had wide-set eyes, a broad face, and a playful smile. He did not talk much, but he was such a good listener that a girl hardly noticed. For the rest of her life, Agnes de Mille recalled Leonarde Keeler as "the best of all my dance partners."