More detail on scent lineup case headed to Texas CCA

A helpful reader points to a December 2007 article from the San Jacinto County Times about the case of Richard Lynn Winfrey, Sr., which was accepted this week by the Court of Criminal Appeals for purposes of evaluating scent lineup evidence. Here's the description of the case against him, including vastly overblown claims by prosecutors about the reliability of dog-scent lineups:

Winfrey was charged with capital murder but since the missing guns were never recovered the jury had a reasonable doubt as to whether the murder occurred in the course of committing robbery and convicted Winfrey on the lesser included offense of murder.

“This trial has shown that canine scent evidence, which has been upheld by appellate courts as reliable scientific evidence is as powerful as DNA evidence to support a conviction,” [San Jacinto County Criminal District Attorney Bill] Burnett said.

“The FBI is comfortable using Fort Bend County Deputy Keith Pikett’s dogs and canine scent evidence and I, as a Texas prosecutor, support the use of canine scent evidence to help bring criminals before the bar of justice.”

Giving the court his qualifications as well as the qualifications of his four canines, Pikett said he conducted two scent lineups – one in August of 2004 in San Jacinto County and one in August of 2007 near Bellaire.

“Quincy and Jag, registered bloodhounds, were used in 2004,” Pikett said. “Quincy has ran 976 felony trails, participated in 107 lineups and done 1,480 scent pad cases and wrong only two times on the scent pad lineups.” Pikett blamed himself for the two errors. He said Jag has been on 356 trails, 413 scent lineups and never proven to be wrong.

He said he has two other dogs, James Bond and Clue. James Bond has been on 279 trails and 964 scent pad lineups and never wrong, while Clue has been on 92 trails and 406 scent pad lineups and never wrong.

During the 2004 scent lineup, two of Pikett’s dogs alerted on scents from Richard Winfrey Jr. and Megan Winfrey.

The second scent lineup was conducted in August 2007, three years after the first, using scent pads from Burr’s clothing and Richard Winfrey Sr. At that time, Quincy and Clue both alerted on Richard Winfrey Sr., Pikett said.

Concluding a series of witnesses called by Burnett was David Wayne Campbell, 44, who is currently completing his sentence in the Federal Detention Center, Houston. Testifying last Thursday, Campbell said he knew Richard Winfrey Sr. while they were incarcerated in the Montgomery County Jail. Campbell said he overheard Winfrey describe a murder in San Jacinto County and how it occurred.

Interestingly, to judge by comments in the New York Times Wednesday, the FBI now isn't as supportive of scent lineup evidence as it was two years ago when Mr. Winfrey's case went to trial. Here's how they described the reliability of the tactic:

Thomas Lintner, the chief of the F.B.I. Laboratory’s evidence response team unit said that the bureau has been using scent dogs to link people to crimes for four years as an “emerging technology” and works under carefully controlled conditions using “scent transfer units” that vacuum air across pads with minimal contamination. Even then, the F.B.I. restricts the uses of the evidence produced by dogs.

“It’s a lead generation activity,” he said. “It’s not something we’re going to take to court and say, ‘we need to indict this guy.’ ”

It doesn't sound to me like the FBI would back up Pikett's claims of reliability for his dogs if anyone had asked them, but that's what the jury heard from San Jacinto County prosecutors, for whom Pikett's dogs are "as powerful as DNA evidence to support a conviction." Unreal.

In closing arguments at trial, Winfrey's attorney described the array of evidence presented against his client - Pikett's dogs and a jailhouse snitch:

You’ve heard information about a crime that took place but no evidence. The medical examiner told you about wounds but no evidence to tell you who caused those wounds. Texas Rangers said there were no signs of forced entry. Burr’s house was cleaner than my house and nothing out of place. Nothing was in disarray. Nothing to indicate a struggle or robbery. There was no evidence of guns being stolen or nothing else taken. If you don’t find robbery you can’t find capital murder. There was no evidence of a robbery at all and you can’t find capital murder,” Taylor told the jury.

“Inside the house there were no prints, no one else’s blood at all and none outside. There is nothing at all to tie Richard Winfrey Sr. to Burr’s trailer – no eye witness, no DNA, no woman to match pubic hair, died red hair found. There was nothing found to tie any of the three Winfrey’s to the scene. And there was nothing found that could be traced back to Burr in the Winfrey’s possession,” Taylor said.

“Winfrey told Campbell of things he had heard two years after Burr’s death. Winfrey didn’t admit to the crime. There is absolutely no evidence of a robbery. Nothing missing except a Bible and we’re not sure of that. Dogs and Campbell’s testimony are the only things you got. You have a tough task ahead of you,” Taylor said.

There are a number of patterns that recur in recent Texas DNA exonerations, and one of them is that a single error is seldom enough to convict an innocent person, but it's much more likely to happen when two unreliable sources of evidence are combined - particularly when there's no other corroborating evidence.

That appears to be the case here, to judge by this media description. Overestimating the value of bad forensics and a jailhouse informant could easily have combined to convince jurors an innocent man was guilty. I don't know for sure this is an actual innocence case, but it has many of the earmarks. The defendant has steadfastly maintained he didn't do it.

That's all good news in terms of how the CCA will likely view the petition to evaluate scent lineup evidence. If there were other significant evidence against Winfrey, some judges on the court would be tempted to overlook flawed forensics as harmless error. But in this instance, the paucity of evidence casts the harsh spotlight squarely on Deputy Pikett, and for reasons described in the recent Innocence Project of Texas report, I suspect his methods won't survive close examination.

While a Houston appeals court had earlier approved of Pikett's dogs - a case where Pikett allegedly misrepresented his academic credentials on the stand - this is a case of first impression for the CCA. They can more or less start with a clean slate. While some commenters have expressed (justified) skepticism that Judge Keller and Co. will do the right thing, I remain hopeful, in part because I don't think the court would have accepted the case if there weren't five judges inclined to disfavor scent lineup evidence. We'll see soon enough.