Thursday, November 05, 2009

Texas Court of Criminal Appeals will hear arguments on dog-scent evidence

Thanks to an attentive commenter, I learned that just yesterday the Texas Court of Criminal Appeals agreed to hear a case out of San Jacinto County that calls into question the validity of dog scent lineups.


1. An important question implicating the administration of justice is presented by the Court of Appeals' reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.

2. An important question implicating the administration of justice also is presented by the Court of Appeals' failure properly to evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.
This is absolutely excellent news, and I'm quite looking forward to hearing oral arguments in the case. As somebody who has frequently criticized the CCA, let me be the first to commend them for taking up this matter. For once, I'm proud of them for stepping up to the plate. It's pretty clear law enforcement won't stop on their own.

Meanwhile, the Houston Chronicle today has coverage of the three new civil lawsuits challenging dog scent testimony. And Jacob Sullum of Reason addresses the myth of the infallible police dog.

It's the judiciary's job to keep unreliable forensics out of the courtroom, but until now the CCA treated the issue as a task for the Legislature or some other body. (For example, the court's Criminal Justice Integrity Unit called on the Lege to reform eyewitness ID practices among police, but the court could easily require such changes themselves if they cared to do so.) Perhaps dog scent lineups will be the watershed moment when the court realizes it needs to more seriously vet unreliable forensics and can't just rely on old precedents approving invalid science.

UPDATE: Via the Texas Court of Criminal Appeals Blog, "
Here's a link to the court of appeals opinion (published). Here's a link to the court of appeals info."


Karo said...

I don't mean to rain on your parade but you should curb your enthusiasm an opinion is handed down. This is a textbook example of a situation where a results-oriented court creates bad case law; or legislates from the bench.

Enough with the clich├ęs... Too often a meritorious argument from an otherwise guilty defendant is denied because, like jurors, the appeals court justices can't separate their duty to follow the law from their instincts as normal non-murderous humans. Simple logical interpretations of the law are rejected in favor of retarded mental origami in support of a guilty verdict that may be morally right but legally wrong. The legal precedent established in such cases harms future defendants who are both legally innocent and morally innocent.

Let's hope the justices don't get the feeling that Richard Lynn Winfrey needs to be punished because that could mean trouble for any future defendants hoping to challenge the sufficiency of scent lineups.

Gritsforbreakfast said...

If that turns out to be the case, Karo, I'll certainly retract my premature approbation. But established precedent already allows use of scent lineup evidence, so it seems to me if their intent in taking this case was to affirm its use, they would have simply denied cert and left existing precedent undisturbed.

Anonymous said...

Here's a newspaper story on the case. The story is incredibly poorly written, but it looks as if the prosecution's entire case consisted of Pikett's dogs and one snitch. To call that a threadbare case is being generous to the prosecution, and despite that they tried to get this guy executed.

Especially cute is the quoted testimony from Pikett regarding the historical accuracy of his dogs. They're just never wrong.

Karo said...

"it seems to me if their intent in taking this case was to affirm its use, they would have simply denied cert and left existing precedent undisturbed."

You make an excellent point. Maybe I'm too cynical but my first concern was that the Court wanted to re-affirm the practice to help strengthen the State's position in those civil lawsuits.

Anonymous said...


I wouldn't be concerned if I thought that the CCA would actually follow the law - such as applying the Kelly case from the early 1990s which set out workable criteria for the admission of scientific/expert evidence in a manner that mirrors the US Supreme Court's Daubert case which is the law of most of the States as well as the federal courts. What troubles me is the CCA's propensity to change the rules in a result-oriented way - as they did when they watered down Kelly in the later Nenno case, which involved junk science predictions of future dangerousness from an FBI "expert" which the court classified as soft science, and then used that precedent to go on admit other egregiously unreliable evidence. Following Kelly, instead of changing the rules in the middle of the game, would have cleaned up capital sentencing proceedings in Texas a good deal, but would also have resulted in a long shadow of doubt over many already imposed death sentences, so they couldn't go down that path ....

If they decide that the pooches' sniffing habits are "soft science" and reliable under the "relaxed" Nenno standard then they'll manage to uphold these dogs of convictions. However, four of the judges on the court have been responding fairly robustly to sloppy science (and hats off to Womack and Johnson for what they've written in that area) so it only needs one more vote. Maybe, if Keller falls by the wayside, just maybe ...