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:

• Time to ban junk science from the courtroom
• Dog scent lineups discredited at Texas Court of Criminal Appeals
• Texas needs process to vet cases based on forensic hokum
• Deputy famous for dog-scent lineups to retire
• More detail on scent-lineup case headed to Texas CCA
• Texas Court of Criminal Appeals will hear arguments on dog scent evidence
• More litigation, disapprobation for dog-scent lineups
• 'Scent lineup' evidence may be used in Anthony Graves capital case
• CNN profiles cop wrongly accused by dog scent lineup
• A 'scent lineup'? Rover in the witness box
• DNA exoneration indicts Rover in the witness box
• 'Scent lineups stink to critics'
• 3 false convictions relied on dog-based scent lineups in Florida
• Scent lineups by dogs don't pass the smell test
• Texas Innocence Project vetting dog scent lineup cases
• Evidence mounts against dog handler, scent lineups
• Texas Innocence Project report discredits dog 'scent lineups'
• More innocent people accused by dog 'scent lineups,' but FBI now using technique