Friday, July 29, 2011

Appellate court upholds exclusion of dog-scent lineup evidence

Good news for opponents of junk science in the courtroom: Brandon Barnett at Liberty and Justice for Y'all brings word that the First Court of Appeals in Houston has once again benchslapped testimonial evidence in a capital murder case from Fort Bend Sheriff Deputy Keith Pikett's bloodhounds, when yesterday they:
issued an opinion in another case involving the Fort Bend County dog handler.  Much like the last case I posted about, the dog handler was used to match a murder suspect's scent with the scent of certain evidence from the crime scene.  This time, however, the scent lineup evidence did not even make it to the trier of fact.  After hearing the views of competing experts, the trial judge ruled that the evidence was inadmissible as unreliable.  Some of the flaws in the dog handler's methodology that the court noted were:
  • He carries around his "blind" non-supect scent samples (called foil samples) in ziplock bags;
  • His foil samples are old samples, while the scent sample of the suspect is fresh;
  • He does not do negative runs where the sample of the suspect is excluded;
  • He uses multiple dogs during each test rather than allowing the dogs to work alone; and
  • He is mostly self-taught and his methodology is something he created. 
On appeal, the State argued that the trial judge abused his discretion in refusing to admit the evidence.  The First District upheld the trial judge's ruling, holding that it was reasonable for the trial court of conclude that the scent lineup evidence was unreliable.
The trial court had excluded dog scent evidence as unreliable - good for District Judge Clifford Vacek - and and the First Court of Appeals upheld his ruling. The trial court also made the following conclusions of law:
1. The science of human scent identification and/or comparison is not sufficiently reliable to be admitted in evidence in a criminal trial. See Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).
2. Human scent identification by a canine is not sufficiently reliable to be admitted in evidence in a criminal trial. See Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1992).
However, the First Court ruling (pdf) stops short of issuing those words from Justice Jane Bland's own pen, but she agrees that the record supports the trial court's findings of fact and upholds decision to suppress dog-scent evidence. Regular readers will  recall that dog scent lineups had already been discredited at the Court of Criminal Appeals, which may soon be asked to rule on suppressing dog-scent evidence altogether if the state (as I hope) chooses to appeal the First Court's ruling to the state's highest criminal court.

What does this mean for the 2,000 or so past cases where Texas courts already allowed this now-deemed unreliable testimony? On that the jury is out. For now we know for sure the evidence won't be allowed in criminal trials henceforth in Texas' First District, and especially since Deputy Pikett has retired and no one else in the state performs the procedure, possibly this may be the beginning of the end for the use of dog-scent lineups in Texas.

For more background on dog scent lineups see this public policy report (pdf) from my employers at the Innocence Project of Texas, published while I was furloughed from the group for reasons of fiscal austerity.

See prior, related Grits posts:


Anonymous said...

Finally...someone has put a stop to this crock-o-s*** method of evidence gathering.

Now someone needs to do the same with polygraphs!

Anonymous said...

The more evidence we disallow, the more likely our pets can go free. Video evidence is opposed, eye witness testimony is opposed, "snitches" are opposed. Nothing must stand in the way of our pets being allowed to be free and celebrate their deeds.

Anonymous said...

Grits asked, "What does this mean for the 2,000 or so past cases where Texas courts already allowed this now-deemed unreliable testimony?"

Doesn't it mean that all those defense attorneys can sit by their mailbox and wait for the sheriff's depts to let them know about this now discredited junk science? Isn't that what the Innoncence Project recommends?

DEWEY said...

Looks like the wolf is at the door for dog scent evidence.

GalvestonLawyer said...

The state used this nonsense "science" in a murder case we handled a couple of years ago. Complete BS. Keith Pikett is a snake oil salesman. I wonder how he sleeps at night knowing that he has undoubtedly caused the conviction of innocent citizens.

Anonymous said...

Anonymous 05:33 apparently has no problem with people being convicted using manifestly unreliable evidence, and presumably opposes even attempts to ensure evidentiary reliability. Does this "contributor" really think that law enforcement should just decide who they think is guilty and then be allowed to present just any old snake oil in court? Sad.

Gritsforbreakfast said...

5:33, the only "pets" in this discussion are the ones giving testimony in Fort Bend County. Woof! Woof!

John C. Prezas said...

This is the other side of the coin from the confrontation clause debate in some ways and an extension of it in others.

Certainly if we can persuade judges to properly evaluate junk science in their role as gatekeepers and give them the proper evidence to do so, then we can avoid merely having to litigate the application of clearly erroneous techniques.

However, the ability to circumvent the confrontation clause by allowing subsequent expert's using previous expert's data, without knowing the flaws that went into data collection, prosecutors may be able to clothe junk science in the veneer of legitimacy.

I worry about how intelligent but less scrupulous prosecutors might make use of current and developing case law to do just that.

Its an issue that comes up often in drug and DWI cases where substances or blood are being tested in crime labs.

Lisa said...

Keith Pickett is what prosecutors call payed for whore. Sad to say he probably sleeps well,all the bad ones do. Evil reigns when good men remain silent,thank you trial judge for not remaining silent. It takes a lot to go against the good ole boy mentality,but only a good man can stand up for whats right,a bad man hears and sees and says no evil so evil can reign on.

Thomas Denney said...

At the Border Patrol checkpoint north of Laredo, the dog barked like crazy. The agent looked at me and at the driver and we were not reacting at all. He said, "Go ahead."

The dog had been trained to bark on hidden signal from the controller. All he wanted was to see our reactions.

Clearly dogs cannot testify as to whether or not they were acting independently on on signal. Till they can this stuff is crap.