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Gareon Conley could still be charged, despite passing polygraph test


Person’s hand hooked up to polygraph test, close-up (Overhead view)

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The Raiders decided to take a risk by drafting cornerback Gareon Conley. But it definitely was a risk, given the uncertainty of his legal situation in Cleveland.

Yes, Conley passed a polygraph test, which per multiple reports was imposed by the Ravens. (And that creates a separate potential can of worms that will be addressed in a separate post.) So why didn’t the Ravens pick Conley at No. 16 if, as reported, he passed it?

Whether Conley can pass a polygraph test (which remains inadmissible in a court of law because it’s not a reliable indicator of truth telling) isn’t relevant to whether he gets charged. Indeed, whether Conley is telling the truth and whether the evidence would permit a zealous prosecutor in Cleveland to indict Conley are two different issues.

Conley could still be indicted; the Ravens realize that, and the Raiders surely do, too. As the saying goes, a grand jury could indict a ham sandwich. That’s because the process entails a one-sided introduction of evidence, with the defendant having no representation. It’s also easy to indict because the legal standard for doing so is much lower than the standard required for a conviction.

To get an indictment, the prosecutor merely must convince the grand jury that probable cause exists to believe a crime was committed. Combining that with the fact that the defendant has no one arguing the opposite position makes its ridiculously easy to get an indictment.

People think that, in any community, a judge has the most power within the confines of the justice system. The truth is that the prosecutor does. The prosecutor decides who gets charged, who doesn’t get charged, and what they get charged with. If the prosecutor in Cleveland subjectively decides that the alleged victim is telling the truth and/or that the defendant isn’t -- or if the prosecutor simply decides that the prosecutor wants to turn the defendant’s life upside down for any reason at all, an indictment can be obtained.

The prosecutor’s discretion is really broad. Really, really broad. In nearly any case where a prosecutor wants to get an indictment, an indictment will be gotten.

There are two key facts that could significantly influence that decision-making process. The alleged victim has had a rape kit administered, and Conley has agreed to provide a DNA sample. Given that Conley’s front-line defense (based on the information provided by the witnesses in the hotel room) is that nothing happened between Conley and the alleged victim, a match between the rape kit and the indictment could be the thing that prompts the prosecutor to seek an indictment, and in turn that results in the indictment being obtained.