Scents and Sensibility: When Evidence Doesn’t Pass the Smell Test (Part IV)
by John Browning
Thu, Jul 29, 2010, 05:41 AM
“Forensic evidence is often offered in criminal prosecutions and civil litigation to support conclusions about individualization – in other words, to ‘match’ a piece of evidence to a particular person, weapon, or other source.But with the exception of nuclear DNA analysis, no forensic method has been rigorously shown able to consistently, and with a high degree of certainty, demonstrate a connection between evidence and a specific individual or source.”
- from “Strengthening Forensic Science in the United States:A Path Forward,” February 18, 2009, a Congressionally-mandated report from the National Research Council of the National Research Academies
The National Research Council, in its 2009 report quoted above, concluded that our nation’s forensic sciences system is “badly fragmented” and lacking in strong standards by which the reliability of forensic methods and evidence can be measured.In admitting and relying on such evidence, the report pointed out, courts should focus on two criteria:The extent to which a given forensic discipline is founded on a reliable, scientific methodology that lets it analyze evidence and report findings, and the extent to which that discipline relies on human interpretation that could be tainted by error or bias.
Although specific methods like the dog scent lineups conducted by Keith Pikett weren’t mentioned in the Council’s study, they could have been Exhibit A.Other states that once relied on dog scent lineups have learned a costly lesson.The work of the late dog handler John Preston (whose testimony resulted in over 100 criminal convictions), for example, was roundly discredited.The Arizona Supreme Court called him a charlatan, and the state attorney in Brevard and Seminole counties in Florida is reviewing as many as 17 cases (some dating back to the 1980s) involving dog scent evidence provided by Preston.In 1986, the Florida Supreme Court set aside the murder conviction of Juan Ramos, obtained on the basis of one of Preston’s dog scent lineups, calling the lineups untested and unreliable.
In the meantime, the now-retired Pikett has become the poster boy for junk science.In addition to the testimony from animal behavior expert Dr. Lehr Brisbin that helped win an acquittal for Richard Winfrey, Jr. and convinced Judge Clifford Vacek to dismiss Pikett’s lineups as unreliable, more and more experts have heaped criticism on Pikett, thanks to the half-dozen civil lawsuits pending against the former deputy.In the litigation brought by one of the wrongfully accused men, Michael Buchanek, Robert Coote (a U.K. professional scent-dog handler and the former head of a British canine police unit) condemned Pikett’s methods as “the most primitive evidential police procedure I have ever witnessed.If it was not for the fact that it is a serious matter I could have been watching a comedy.”Another expert on the Buchanek case is Douglas Lowry, a 26 year veteran of the Maryland State Police Canine Unit and the president of the National Police Bloodhound Association (NPBA).Lowry testified that there were “too many variables” involved with dog scent lineups to give them the reliability needed by the justice system, one reason why the NPBA did away with training of scent lineups years ago.Lowry found that Pikett’s work was neither credible nor reliable, and in fact opined that Pikett was “doing a disservice to police bloodhound teams throughout the country” with his wildly exaggerated claims of his dogs’ infallibility.Yet another expert witness, professional police dog trainer and instructor Steven Nicely of Austin, analyzed Pikett’s procedures for lineups.He pronounced them to be “either unethical or unprofessional, or based on incompetence,” and labeled Pikett himself as “an unprofessional charlatan” and “incompetent as a police service dog trainer.”
The decisive nail in the coffin for dog scent lineups in Texas, however, may come not from high dollar civil damages awards but from the state’s highest criminal court, the Court of Criminal Appeals.On April 14, 2010, the court heard oral argument in the case of Richard Winfrey, Sr.Winfrey, Sr. was appealing his murder conviction being affirmed by the Eastland Court of Appeals.That intermediate appellate court upheld the conviction in an opinion (issued just days before Richard Winfrey, Jr.’s acquittal) that was devoted almost entirely to Pikett’s canine scent testimony and how it “provided direct evidence placing [Winfrey, Sr.] in contact with Burr’s clothing.”The court noted how Pikett’s dogs “had not been proved to be wrong on any occasion,” while admitting only in passing the lack of DNA evidence and the fact that “none of the items tested at the DPS Crime Laboratory tied [Winfrey, Sr.] to the murder scene.”
At the Court of Criminal Appeals, Winfrey, Sr. was represented by the lawyer who had championed his son, Dallas attorney Shirley Baccus-Lobel.Hampering her somewhat was the fact that Texas’ highest criminal court reviews the legal sufficiency of the evidence used to convict a defendant, but generally can’t revisit whether there were enough facts to convict.According to Baccus-Lobel, the primary issue was the legal sufficiency for the conviction, since the court “relied on dog-scent lineups without due regard for the limitations of that so-called evidence” – limitations that, Baccus-Lobel points out, the state acknowledged.“Pikett himself admitted that no conviction should be based on a canine scent lineup alone and that other links to prove the person committed the crime are required,” she says,“The state even conceded that the purported scent identification did not even place Winfrey, Sr. in proximity to the victim.”Moreover, Baccus-Lobel says, just because the Court of Criminal Appeals doesn’t revisit the sufficiency of the facts brought before a lower court doesn’t mean it can’t reconsider how those facts were analyzed, and the foundation upon which they are based.“No reviewing court is obliged to accept a representation that the moon is made of green cheese,” she notes.
During the oral argument, several justices peppered San Jacinto County Criminal District Attorney Bill Burnett with tough questions about Pikett’s dog-scent lineups, whether he should have been allowed to testify about science-based conclusions without having any scientific background, and the absence of any evidence putting Winfrey, Sr. at the scene at the time of the murder.Burnett responded that scent lineups should be allowed under a less rigorous standard for so-called “soft sciences,” where an expert witness is testifying more on the basis of experience and training than on the scientific method.Baccus-Lobel, on the other hand, argued that the lineups should have to satisfy a tougher standard, under which experts have to demonstrate that their scientific technique is valid, proven and accepted in their field, reliable, and properly applied.Pikett’s lineups, she says, met none of these requirements.
To date, the Court of Criminal Appeals has yet to issue a ruling.That’s not particularly unusual, says Baccus-Lobel, since it usually takes several months to a year before an opinion is handed down.In the meantime, debate over the state of forensic science in Texas continues, especially in the wake of the Cameron Todd Willingham controversy.Willingham was convicted in the 1991 arson deaths of his three young children, largely on the basis of an investigation that fire expert Craig Beyler later described as so seriously flawed that the arson finding couldn’t be supported.Willingham was executed in 2004, after Gov. Rick Perry declined to grant him a 30 day reprieve.The following year, the Legislature created the Texas Forensic Science Commission for the purpose of investigating allegations of misconduct or negligence that could impair the integrity of a laboratory’s forensic analysis.However, in the fall of 2009, Gov. Rick Perry replaced four of the commission’s nine members – two of them just two days before the commission was to review Beyler’s report on the Willingham case.The newly-appointed chair of the commission, Williamson County District Attorney John Bradley, then cancelled the October 2, 2009 meeting.
The commission has since agreed to revisit the Willingham case this October.But in the meantime, its preliminary review has concluded that the fire investigators whose opinions sent Willingham to death row didn’t engage in misconduct or neglect, but rather had used the “flawed science” that had existed at the time.
How many men and women sit in Texas prisons today thanks to “flawed science” or “junk science?”We may never know.And while no more defendants will be joining their ranks on the strength of the now-retired Keith Pikett’s opinions or the discredited lineups featuring his “infallible” bloodhounds, Richard Winfrey, Sr. and others wait.They wait for the Court of Criminal Appeals to rule.They wait to see if Texas will require the evidence presented in its criminal courts – evidence that may result in a loss of liberty or even life – to live up to objective scientific standards and reliability.They wait for evidence that truly passes the “smell test.”