Dead dogs, shot owners, greedy clerks, phony risks, and a 'seismic change in police interrogations'

Here are a few odds and ends that each merit their own blog posts, or at least they would if I weren't spending my days writing Just Liberty emails and action alerts. (E.g., go here to send your state rep an email asking them to sign on in support of Rep. Garnet Coleman's "Sandra Bland Act.") So while Grits is focused elsewhere, check out:

• Eva Ruth Moravec, Houston Chronicle: "Unarmed people hurt when Texas officers shot at dogs." Includes slide show of dogs shot by cops!
• And from Mike Ward, also in the Chron: "State budget writers say four prisons may now be up for closure." (Hurray!)
• HB 1258 is a terrible bill that would stop Texas courts from providing internet access to the most public of public records in the government's possession: courthouse files. The bill was heard in committee yesterday. The real reason clerks want to deny people access to records which are public under the open-courts doctrine (which insists access must not be impeded by unreasonable  financial barriers)? After you wade through all the BS being thrown up about phony baloney "risks and liabilities," the bottom line is, clerks presently charge $1 per page for copies and fear the revenue stream from subscriptions won't cover the loss.
• Here's a headline for which Grits has been waiting for years: "Lawmakers, judges square off against bail bondsmen in push to end cash bail for nonviolent offenders." Chairman John Whitmire is holding a press conference this afternoon on the bill.
• See Raise-the-Age arguments from the Justice Policy Institute and the Fort Worth Star-Telegram, and coverage of an advocacy day yesterday on the topic (where the missus spent her day) from the Dallas News.
• It turns out, the people most likely to discover wrongful convictions are the ones looking for them. Who'd have thought? Oh yeah, every innocence project affiliate in the country.
• In El Paso, the Public Defender caseload is rising.
• Brandon Garrett, The Baffler: "Trials and Errors: Inside the Great Forensic Science Boondoggle."
• Marshall Project: "The Seismic Change in Police Interrogations." This is huge news: The group that developed the Reid technique is no longer teaching it. (For more background on the Reid technique, see here, here, here, here, here, here, and here.) The Reid technique was developed after third-degree  tactics were outlawed in the wake of the Wickersham Commission in the '30s. By the 1940s, John Reid had famously developed an interrogation method deploying psychological instead of (as much) physical coercion, but attacking the same mental weak spots, and modern US interrogation techniques were  born. Most other nations' police use less accusatory, more fact-gathering-based interrogation methods, which produce just as many real convictions but fewer false ones.

Dumb dog, why are you following me? SCOTUS to decide if cops can prolong traffic stop for a dog sniff

'You're the most presumin' dog that a human could know'

"[O]ne of the most shared experiences in our national culture is being stopped by the police while driving," wrote Rory Little at SCOTUSBlog, in an excellent summary and preview of oral arguments in Rodriguez v. United States, heard yesterday, which aims to decide whether a traffic stop may be prolonged without suspicion for eight minutes so a drug dog can be brought to the scene for a sniff.

Grits has long considered the nexus of issues surrounding drug-dog sniffs to be perhaps the most schizophrenic area of constitutional law: The Court has frustratingly insisted that dog sniffs aren't a "search" at your car on the side of the road but they are a search on the porch in front of your house. As search tech advances - there are numerous sensors that could mimic the dog's at-a-distance non-search search - the potential negative consequences from this outcome-driven approach become more severe. This case would be an excellent opportunity to bring the practice to heel. (Ba-dum-bum; insert mandatory audience groan here.)

Little's two pieces provide an excellent snapshot, ably presenting the legal posture of this pick-em case and its predecessors; give them a read. Here's the transcript from oral argument. MORE: See coverage from the Courthouse News Service and Bloomberg News. Reason highlighted this tidbit from Justice Sotomayor.

'White paper' suggests systemic reforms to respond to mass forensic errrors

How should the criminal justice system respond when forensic errors or malfeasance occur on a large scale, affecting hundreds or even thousands of cases? Texas courts, prosecutors, defense counsel and crime labs already are struggling with these questions, and it appears the Texas Legislature may need to take up the issue when they re-convene in 2015.

Late afternoon the day before Thanksgiving (Nov. 27), the Texas Forensic Science Commission and the Texas Court of Criminal Appeals' Criminal Justice Integrity Unit issued a little-noticed joint "white paper" (pdf) based on a stakeholder "roundtable" held earlier this year. (In the interest of full disclosure, your correspondent participated in that roundtable on behalf of the Innocence Project of Texas.) Suggestions in the white paper could have big implications for the justice system when large-scale forensic SNAFUs arise like the DPS-Houston crime lab fiasco where lab worker Jonathan Salvador was caught drylabbing evidence, casting doubt on a large number of convictions where he'd performed testing.

Between the Salvador mess, the discrediting of dog-scent lineups and hair-and-fiber analyses, and scientific debunking of now-outdated arson indicators used to secure convictions for decades, in recent years Texas and indeed the entire, national criminal-justice system has had to come to grips with the fact that many past criminal convictions have been secured using what's now known to be junk science. The Texas Legislature passed a landmark statute in 2013 allowing habeas corpus relief in such cases, creating a vehicle for revisiting convictions based on bad science and overturning them if the conviction couldn't have been obtained without the faulty forensic testimony. But there are still no processes in place for identifying those old cases, notifying affected defendants, or creating a vehicle to ensure that meritorious cases actually get a chance to seek relief in the courts. Those are the issues about which this white paper offers some first, tentative suggestions, though there's still a long way to go to turn the ideas into a workable blueprint, much less a functioning, effective system.

First things first, the paper confronts the issue of how to give effective notice of such errors to defendants in a way that would allow them to seek relief where appropriate. In the Jonathan Salvador case, in particular, "because so many different counties were affected, it was extremely challenging to determine whether affected defendants have received notification consistently, or whether notice varies from county to county depending upon local resources and other factors. It is also difficult to assess the extent to which prosecutors themselves understand the nature and scope of the forensic misconduct and potential ramifications." For example, despite advice to the contrary from the state prosecutors' association, the Fort Bend County District Attorney balked at notifying defendants whose cases were implicated in the Salvador SNAFU until finally cratering under media pressure.

The white paper praised the Texas District and County Attorney Association for advocating on their website that prosecutors provide notice, but recognized "that TDCAA cannot force its membership to check its blog regularly or to follow its recommendations." Instead, participants in the roundtable "emphasized the importance of notice redundancy," noting that "making several layers of contact with various affected parties is critical."

The paper also suggested that the lab identifying "nonconformance" should hold a "technical briefing" where stakeholders may ask questions ... so they may understand the scope of the problem accurately." But depending on the circumstances, the agency where the problems originated may or may not be the best source for a thorough, honest technical briefing. Grits would suggest that, at a minimum, representatives from the Forensic Science Commission should participate in such presentations so  labs won't gloss over important details in ways that minimize their own culpability. In the Salvador case, the DPS officials IMO behaved with great integrity and that wouldn't have been necessary. In other instances - as with dog-scent lineups performed by the Fort Bend County Sheriff's Office - the agency promoting faulty forensics wouldn't have been nearly so forthcoming. And for hair and fiber analyses, there is no single agency implicated but an entire forensic field that's been called into question. I'm not sure how the white-paper briefing model would work in that sort of scenario.

The white paper suggests the Forensic Science Commission should be responsible for notifying individual District Attorneys offices with affected cases, as well as notifying leadership at the Texas Criminal Defense Lawyers Association, the Texas Center for the Judiciary, the prosecutorial assistance unit at the Texas Attorney General, and regional presiding judges via the Office of Court Administration. (Right now the FSC has no statutory duty to perform those tasks but there's also nothing stopping them from doing so, resources permitting.) The paper also suggests the FSC "should consider establishing a centralized Internet-based repository accessible to everyone in the state with basic information on pending forensic complaints and disclosures, including a FAQ section and other guidance.

All that, however, doesn't ensure defendants whose cases may be affected will be notified. The paper points out that "prosecutors have an obligation to make a good faith effort to contact defendants. However, they cannot track individuals beyond their last known address." That's definitely an issue, but Grits would suggest a few possible avenues for followup. For starters, when the address in prosecutors' files are outdated, the US Postal Service may have change-of-address information if anybody bothered to check. For that matter, commercial list brokers often have more and better updated information on addresses even than the post office, as any political consultant or professional marketer would tell you. For large-scale notification projects like the ones being discussed, following up with those sources would be well worth the cost, given the stakes involved.

As for the content of such notifications, "prosecutors should provide a resource for defendants to inquire about any re-testing or potential writ process. This prevents prosecutors from being placed in the impossible position of advising defendants who contact their office with inquiries." That suggestion doesn't go as far as the advice from TDCAA regarding the Salvador scandal. They suggested that, for any defendant with viable habeas claims, prosecutors should "request that the court appoint an attorney to take the case through a writ process." TDCAA's advice represents a stronger, more pro-active approach than suggested in the white paper. Telling them to ask the courts to appoint an attorney to me makes more sense than vaguely telling DAs to "provide a resource."

Which brings us to the question: Once defendants are notified, what happens then? For indigent defendants who originally had appointed counsel, the lawyer assigned to them on the front end has no continuing duty to assist them in filing habeas corpus writs after the fact, particularly if they're not being paid for it. (Plus, habeas corpus writs a relatively specialized field and most attorneys taking appointed cases wouldn't be competent to handle them.) It's at this stage in the process that legislative action would be required to implement the course of action outlined in the white paper, as well as rule changes by the state bar:

The majority of stakeholders felt the Commission on Indigent Defense should be responsible for these cases by appointing attorneys on a temporary basis to address the claims. The Commission on Indigent Defense should work with the State Bar, TCDLA and Texas law schools to obtain effective and targeted representation where possible. The attorney group would be appointed only for the purposes of dealing with the forensic nonconformance at issue and would be disbanded when the cases have made their way through the appeals process. Absent a statewide solution, local counties should consider creating “consortiums” with their neighboring counties so that attorneys capable of handling appeals and writs may represent defendants in these cases across multiple counties. The Commission on Indigent Defense could in turn fund the local consortiums. Form pleadings should be created and distributed to help attorneys represent clients efficiently in these cases.

If laws need to be changed to permit the Commission on Indigent Defense to fulfill this role, they should be changed during the next legislative session. The Governor’s office and/or the Attorney General’s office should be consulted regarding access to emergency funds for these cases.

Finally, the State Bar should consider developing guidelines for professional responsibility in cases where a defense attorney who no longer represents a defendant receives notice from the prosecutor. Some further action should be taken by the attorney so the notice does not fall through the cracks.

At the roundtable, "Stakeholders felt the Commission on Indigent Defense (in partnership with the State Bar) is the best organization to handle this. ... Absent their assistance, stakeholders will continue to rely on TCDLA, the Innocence Project of Texas and a county-by-county approach," which is "inefficient and creates unequal results depending on what county a person lives in." If a statewide solution through the TIDC cannot be crafted, counties should "make the effort to appoint one or two competent and experienced appellate attorneys depending on the volume to handle all affected cases through the writ process." In addition, "The State could consider amending the post-conviction writ rules to make these types of cases more streamlined for all parties," though the white paper offered no specific suggestions in that regard.

This white paper made a good first stab at thinking through the problems surrounding how to respond large-scale forensic SNAFUs, but clearly there's much to be resolved and some of the suggestions would require legislative action and possibly clarification of prosecutor and defense attorney responsibilities through the State Bar. Some issues may crystallize to some extent when the Court of Criminal Appeals hands down its ruling in Ex Parte Coty, which is the key case parsing issues surrounding the Jonathan Salvador scandal (see Grits' coverage of oral arguments). But as yet, Texas is clearly on the front end of figuring out how to respond to large-scale problems with forensic science, even if in many respects we're far ahead of other states on the topic.

Still, I'm glad to see state leaders thinking about these subjects in terms of systems and processes instead of slogging through it all on a case by case basis, which is how the courts typically handle such matters. That approach makes a lot more sense and, once systems are in place, will prevent a lot of headaches down the line as scientific advances continue to call into question forensic disciplines that are turning out to be less reliable than most everyone thought in years past.

How many cases besides Winfrey hinged on bogus dog-scent lineups? Forensic commission should check

In an article also appearing in the New York Times, the Texas Tribune's Brandi Grissom has a feature today about Megan Winfrey, whose conviction was finally overturned by the Texas Court of Criminal Appeals in February because of junk science (dog-scent lineups) used to convict her. Winfrey is not eligible for compensation, Grissom pointed out, because her case was not overturned on formal "actual innocence" grounds, so her only recourse after spending seven years in prison based on the junkiest of junk science would be to sue. Her brother, who was charged and acquitted in the same case but in the meantime spent 2.5 years in jail, has already done so.

If Governor Perry signs SB 1238 expanding the jurisdiction of the Forensic Science Commission to take up investigations for "educational purposes," IMO these old scent lineup cases deserve a closer review by that body. Nobody knows for sure in how many nor in which cases Fort Bend County Sheriff's Deputy Keith Pikett performed these bogus rituals, nor how often he testified in court. The FSC would be performing a great mitzvah by investigating once and for all just how deep that rabbit hole goes. Maybe it's just a few cases where Pikett provided the primary evidence; maybe it's dozens or hundreds. There's no way to know unless someone systematically investigates, which has never been done.

On the Winfrey case, see also the majority opinion by Judge Cathy Cochran overturning Winfrey's conviction and a dissent by Presiding Judge Sharon Keller, as well as prior Grits posts on the Winfrey case and dog-sniff lineups generally:

Woman still incarcerated based on Keith Pikett dog-scent testimony

At the Texas Tribune, reprinted in the New York Times, Brandi Grissom has an update on the strange saga of Megan Winfrey and clan, who were accused of murder based on one of Fort Bend Sheriff Deputy Keith Pikett's dog scent lineups. Regular readers may recall Grits' expressing approval when the Court of Criminal Appeals overturned her father Richard Winfrey's conviction based on what Jeff Blackburn called the "junkiest" of junk science. But his daughter, convicted on the same evidence, remains incarcerated. As Grissom described it:

Mr. Winfrey and his daughter, Megan, and his son, Richard Jr., were charged with murdering Murray Burr, a janitor at Coldspring High School in Coldspring, during a robbery in 2004. Richard Winfrey Sr. and Ms. Winfrey were convicted. 

The charges against the Winfreys were based primarily on evidence gathered during a dog-scent lineup conducted by a self-trained police deputy whose work in the Winfrey case — and others — was found unreliable by experts. They said the deputy had cued the dogs to “alert” for the suspects during the scent lineups. 

Richard Winfrey Jr. was acquitted by a jury in 13 minutes, after his lawyers had presented evidence that the dog-scent lineup was a sham. 

In April, Ms. Winfrey’s lawyers told the criminal appeals court that the dog-scent evidence used to secure her conviction and life sentence was “bad science masquerading as science.” In her father’s case, the same court found that the dog-scent evidence alone was not sufficient for his conviction. They issued an acquittal in 2010, and he was released. 

But Ms. Winfrey remains in the Murray prison unit for women in Gatesville.

The Trib article also brings news of civil proceedings by the Winfreys against Keith Pikett: "The U.S. Court of Appeals for the 5th Circuit recently agreed to allow Richard Winfrey Jr. to proceed in a lawsuit against the dog handler and two other officers involved in the murder investigation."

Notably, there has never been a comprehensive vetting of the cases Deputy Pikett worked with his dogs the way, for example, old arson cases involving junk science are being vetted in the wake of the Forensic Science Commission's report on the Todd Willingham case. Are there others before the Winfreys who went to prison framed by Pikett's dogs? In how many cases were Pikett's dog-scent lineup the primary inculpatory evidence against a defendant? Nobody knows, but Texas appellate courts had been allowing his testimony for years until Megan's father's case finally put a stop to it.

Grits fails to understand why the Court of Criminal Appeals has taken so long to decide Megan Winfrey's case, where prosecutors told the jury the dog-scent lineup was "as good as DNA," but I wish they'd hop to it. Their landmark ruling in her father's related case is now more than two years old, and if for some reason they're going to flip flop and say the same evidence is sufficient to keep the daughter in prison, the least they can do is publicly explain why. Otherwise, it's time for Megan to go home and for the broader debate to begin about how to assess possible false convictions from the same junk science used in prior cases.

See earlier coverage of the case from the Tribune and the Austin Statesman.

See also prior, related Grits posts:

• 'As good as DNA'? Court of Criminal Appeals consider dog-scent lineups
• Woman still jailed on dog-scent evidence granted high court hearing
• Appellate court upholds exclusion of dog-scent lineup evidence 
• 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'

SCOTUS, Franky and Aldo: High court reviews drug-dog protocols

Yesterday the US Supreme Court heard two important Fourth Amendment cases related to drug sniffing dogs that deserve Grits readers interest (case names link to the opinions):

• Florida v. Jardines: Whether police can bring a drug sniffing dog (in this case, "Franky") to your home without a warrant?
• Florida v. Harris: What threshold must be met regarding evidence of reliability - training, certification, etc. - before a dog's say-so (in this case, "Aldo's") may be deemed probable cause?

See analyses from the New York Times, Slate, and SCOTUSBlog. At the Volokh Conspiracy, Orin Kerr thinks the state will likely lose in Jardines but prevail in Harris, mainly because of the defection of Antonin Scalia in the second case from the faction favoring stronger Fourth Amendment protections. At Reason Hit and Run, Jacob Sullum disputes some of Scalia's misconceptions about police motives.

Having skimmed both transcripts, I was pleased that Justices Anthony Kennedy and Sonia Sotomayor criticized the court's past ruling in Caballes that drug dog sniffs aren't a search because they're only looking for contraband. If the state prevails in Jardines it would unleash police to use drug-sniffing dogs door to door in neighborhoods and apartment complexes, much the same way some school districts can run drug dogs by every student's locker. So of the two, it is arguably more important from a pro-Fourth Amendment perspective.

However, it was disappointing that most justices seemed unconcerned with relatively high false-positive rates for drug-dog "hits." An Australian study discussed from the bench found some dog has hit rates of 12%; the Chicago Tribune last year found canines from suburban Illinois departments collectively had a 44% hit rate, meaning the dogs' signal that drugs were present was wrong more often than not. At a minimum the state should be required to keep records regarding dogs' hit rates in the field. And in any event, judging form the justices' debate, defense counsel can and should be questioning such issues even if the court doesn't draw some black and white line. The underlying questions in Harris won't go away regardless of which way the court rules.

The cases are expected to be decided by next summer.

Boo! SCOTUS dog-sniff cases will be heard on Halloween

It's fall, and that means it's the time of year for the US Supreme Court to further strip away the Fourth Amendment to the Bill of Rights as though it was so much bourgeois furniture being destroyed for kindling in the aftermath of an apocalypse. A column in the New York Times points out a pair of Fourth Amendment cases at SCOTUS that bear watching. The op ed by law prof Jeffrey Meyer opened:

Poor training, low-quality certification and high error rates dog police canine units

Via Simple Justice.

A couple of recent stories from out of state have brought drug sniffing dogs back into the news, as the US Supreme Court prepares to consider their use at people's homes without probable cause this fall.

Dog-sniff evidence is problematic because dogs can't be cross examined. There's wide variation in their accuracy, not to mention the quality and quantity of their training. And dogs naturally pay careful attention to cues from their handlers, creating a significant risk of false positives. Since no attorney will ever get a dog on the witness stand, the other elements (accuracy, training, and methods to avoid cues from the handler) have been critical to the creation of probable cause in previous court decisions. Unfortunately, the bar on all those measures is lowering rapidly.

Courts already accept dog "alerts" as a legitimate basis for a search, even when the dog regularly "alerts" where no contraband is found. In this story out of Roanoke Virginia, a dog name Bono found drugs "just 22 times out of 85 'alerts'," or 26% of the time, and yet a judge upheld the search. Arguing that the dog's performance was actually better than the statistics tended to show, prosecutors in Bono's case argued the dog should get credit for some "hits" that found no contraband, claiming that: "In some cases where nothing was found after an alert by Bono, police later determined that drugs had been in the vehicle earlier, likely leaving an odor the dog was trained to detect." The judge accepted that argument, but even granting such a (highly dubious) premise, Bono's alerts were clearly mistaken half the time, and in another quarter of his hits he's detecting traces that did not actually indicate drugs were present. That fact undermines the US Supreme Court's past rulings (e.g., US v. Place) which upheld dog sniffs in part because they disclose "only the presence or absence of narcotics, a contraband item." In Bono's case, his "hits" mistook the absence of drugs for their presence nearly 3/4 of the time.

Detecting drugs that used to be in the location is  not the same as detecting contraband presently in a suspect's possession. In Texas, Deputy Keith Pikett claimed his dogs could distinguish smells in "scent lineups" up to 17 years after the sample was gathered, so if you take that preposterous claim at face value (as many Texas prosecutors have) heaven knows how long the lingering odor of marijuana might trigger a "hit"? If I buy a car from a pothead and years later a cop runs a drug dog around it, will the dog still signal that marijuana is there? Should that constitute probable cause to search my car today? That's the logic of the Roanoke court.

The judge in Bono's case upheld the dog sniff as probable cause mainly because,  while the dog "may not be a model of canine accuracy," police were justified in acting on it because of the "dog's training and flawless performance during re-certification sessions." Unfortunately, even flawless performance means different things to different agencies.

A case out of Florida which will be argued before the US Supreme Court this fall will determine whether drug-sniffing dogs may be used to glean probable cause outside someone's home without a warrant. The Florida Supreme Court's ruling being challenged by the state made the following argument to say mere certification was insufficient to demonstrate dogs' competence, because:

conditioning and certification programs vary widely in their methods, elements, and tolerances of failure. Consider, for example, the United States Customs Service regime: 

The Customs Service puts its dog and handler teams through a rigorous twelve-week training course, where only half of the canines complete the training. Customs Service dogs are trained to disregard potential distractions such as food, harmless drugs, and residual scents. Agents present distractions during training, and reward the dogs when those diversions are ignored. The teams must complete a certification exam in which the dog and handler must detect marijuana, hashish, heroin, and cocaine in a variety of environments. This exam and the following annual recertifications must be completed perfectly, with no false alerts and no missed drugs. If a dog and handler team erroneously alerts, the team must undergo remedial training. If the team fails again, the team is disbanded, and the dog is permanently relieved from duty.

In contrast, the testimony below disclosed that Razor and his handler had undergone just one initial thirty-day training course and one week-long annual recertification course. In neither course was Razor conditioned to refrain from alerting to residual odors. Whereas the Customs Service will certify only dogs who achieve and maintain a perfect record, Razor's certification program accepted a seventy percent proficiency. These disparities demonstrate that simply characterizing a dog as "trained" and "certified" imparts scant information about what the dog has been conditioned to do or not to do, or how successfully. (Emphasis in original, citations omitted.)

CBS News' 60 Minutes addressed the subject of low-quality training for sniffer dogs in a 2009 story:

"We don't have a set of standards," says Auburn University professor Larry Myers, one of the country's leading experts on canine detection programs.

He believes there is insufficient regulation and no universal tests for the dogs: "We honestly don't have a set curriculum. We've got to get everybody up to some minimal agreed level."

He also says there are good programs that turn out reliable dogs, but some produce dogs that make lots of mistakes -- and even tell lies.

"They can tell you that something's there, that's not there, simply to get praise, to get food, to get whatever they're working for," says Myers, who adds that canine programs are supposed to train dogs specifically to avoid that problems like that. "It is a tremendous problem. We have trainers that can't train. Dogs are being used that can't --don't know how to do anything."

Do trainers have to be licensed? "In some programs, yes. And in most programs, no," says Myers.

This means that poorly trained dogs and handlers are working in many parts of the country.

Meanwhile, Scott Greenfield at Simple Justice brings word of a drug-dog case from across the country in Nevada that should give everyone pause. Nevada state troopers have sued their superiors, alleging that:

the drug-sniffing dogs used by troopers in the program were intentionally being trained to operate as so-called trick ponies, or dogs that provide officers false alerts for the presence of drugs.

The dogs were being trained to alert their handlers by cues, instead of by picking up a drug's scent by sniffing, the complaint said. When a dog gives a false alert, this resulted in illegal searches and seizures, including money and property, the complaint said.

Dogs naturally pay very carefully attention to their people. They've been doing so for millenia. In Nevada, troopers are accused of intentionally teaching the dogs to alert based on their cues. Which raises the question: How can any court ever determine whether a dog alerted to the smell of drugs, an intentional or unintentional cue from their handler, or for that matter the package steaks recently purchased by the suspect? As pointed out in a recent article from the National Association of Criminal Defense Lawyers' trade journal:

Dogs are not motivated in the same way as humans. Dogs have no interest in ridding the world of illegal drugs. Dog trainers, including police K-9 trainers, use treats, toys and praise to reward dogs when they do what they have been conditioned to do. If a police K-9 alerts, it gets a reward. K-9 handler/trainers know this, and the dogs quickly learn that an alert results in a reward in most instances, even if nothing is found. 

Even if such cues are not intentional, the fact is that dogs seek to please their handler raises questions of inherent bias, particularly when the dog's "hit rate" is as low as Bono's above. As the NACDL article pointed out, "If law enforcement or magistrate judges, who are presumed to be impartial, were to be similarly incentivized, it would constitute violations of the Fourth, Fifth and Fourteenth Amendments." To the dog, after all, it's all just a game in which they want to find reason to alert in order to get a reward. To law enforcement and those targeted, though, it's not a game at all, even if federal jurisprudence on the subject has been mostly a joke.

'As good as DNA'? Court of Criminal Appeals considers dog-scent lineups

The Texas Court of Criminal Appeals yesterday heard arguments in a murder case where the conviction hinged primarily on a "scent lineup" conducted by former Fort Bend Sheriff's Deputy Keith Pikett, a rare forensic technique first developed in Communist countries that has been derided as junk science. The CCA already overturned the conviction of the defendant's father in a case arising out of the same episode. Here's the initial coverage:

• Austin Statesman: Woman asks court to overturn conviction based on scent evidence
• Texas Tribune: Woman challenges murder conviction, scent lineup

From the Statesman:

In the years since [Megan Winfrey's conviction], a number of scientists and dog experts have denounced Pikett's methods as unethical, unprofessional and biased in favor of law enforcement.

At least one member of the Court of Criminal Appeals agreed. "Personally, I think the dog-scent stuff, particularly as done by Pikett, is junk science and should never have come into court," Judge Cheryl Johnson said.

Absurdly, prosecutors told jurors at trial that the dog-scent lineup was "as good as DNA." Winfrey's attorney, Shirley Baccus-Lobel, told the CCA that "The problem with bad science masquerading as science is it results in attaching a significance to unremarkable events." San Jacinto County prosecutors told the court that although the case was circumstantial and "parts of it are weak," they should uphold the conviction anyway. (I know, you're shocked.)

See also earlier coverage from the Tribune, and these prior, related Grits posts:

• Woman still jailed on dog-scent evidence granted high court hearing
• Appellate court upholds exclusion of dog-scent lineup evidence 
• 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'

SCOTUS to consider what training, credentials needed for drug-dog alert probable cause

The US Supreme Court agreed this week to hear arguments regarding a case from the Florida Supreme Court to decide what level of training, certification, etc., is sufficient for a narcotics dog's alert to count as probable cause. The Florida Supreme Court held the dog in Florida v. Harris was not sufficiently credentialed, so if SCOTUS doesn't like the ruling, there's a risk they took it up to overturn it.

The opinion out of Florida is fascinating, and they appear to have caught the state in a Catch-22: "The State argues that records of field performance are meaningless because dogs do not distinguish between residual odors and drugs that are present and, thus, alerts in the field without contraband having been found are merely unverified alerts, not false alerts. This assertion, if correct, raises its own set of concerns as it relates to a probable cause determination of whether the dog's alert indicates a fair probability that there are drugs presently inside the vehicle."

The Florida court declined "to adopt the view of the First, Fourth, and Fifth Districts" because it would "place the burden on the defendant to uncover all records and evidence that might challenge a presumption of reliability — evidence that is exclusively within the control of law enforcement authorities and, further, evidence that law enforcement agencies may choose not to record, such as in this case." Absent such documentation, "when a dog alerts, the fact that the dog has been trained and certified is simply not enough to establish probable cause to search the interior of the vehicle and the person."

Bottom line, if I'm reading the opinion correctly, the dog in Harris had been "trained" and "certified," but the department kept no ongoing training records and considered their hit-rate in the field meaningless and so didn't record it. Thus the court ruled that merely being trained and certified, at some point in time by somebody, is not enough to judge a dog reliable without more documentation. "Because the State must establish that the officer has a reasonable basis for believing that his or her dog is reliable in order to prove probable cause based on the dog's alert," said the Flordia court, "the State carries the burden of presenting the necessary records and evidence for the trial court to consider in adequately evaluating the dog's reliability."

How many K-9 handlers keep training and field records recording accuracy rates, and what proportion of US drug dogs might this case affect if SCOTUS accepts the Florida Supreme Court's view? Who knows? Or maybe they just took the case up to bench slap the Florida high court and bring it in line with the more permissive federal districts?

This is an area of forensics - used on the front end for probable cause as opposed to the back end at trial - that deserves much more scrutiny. Dog alerts in other contexts have been deemed unreliable. As the court noted, "there is no uniform standard in this state or nationwide for an acceptable level of training, testing, or certification for drug-detection dogs."

I'm hardly sanguine the US Supreme Court will agree with their brethren jurists from the Sunshine State, but Grits welcomes the debate. Even if they strike down the Florida ruling, the case will be an opportunity for a belated discussion over what dog handlers should be doing with regards to training and record keeping compared to what often happens in the field.

MORE: See an article Radley Balko wrote last year on the reliability of drug dog alerts and how humans interpret them.

AND MORE: See a discussion of drug dogs on the Texas prosecutor association user forum in which Williamson County DA John Bradley confidently predicts that "SCOTUS took the case to remind the states that probable cause is not cause for a full-blown trial." Tarrant County prosecutor David Curl, though, noted that the Florida court emphasized that "evidence of the dog's performance history in the field — and the significance of any incidents where the dog alerted without contraband being found — is part of a court's evaluation of the dog's reliability under a totality of the circumstances analysis. In particular, when assessing the factors bearing on the dog's reliability, it is important to include, as part of a complete evaluation, how often the dog has alerted in the field without illegal contraband having been found."

FURTHER THOUGHTS: We don't know which justices wanted to hear the case, so it's hard to say before oral arguments whether Harris will be more about reinforcing the court's decision in Caballes giving carte blanche for drug sniffing dogs, or more about policing drug dogs' misuse in light of a greater awareness of forensic errors. I"m not a lawyer, but as it's been explained to me, "probable cause" generally means "more likely than not," or above a 50% likelihood. ("Reasonable suspicion" is an even lower standard.) So if a drug dog finds contraband only 45% of the time it alerts - to pull a number out of the air - would that constitute "probable cause," or must the dog's reliability be higher? And what happens when a law enforcement agency avoids that question simply by failing to keep records? Those are the questions Grits hopes the court will focus on when it takes up Florida v. Harris.

Demonizing pit bulls: Breed ban bad approach to dog-bite deaths

Among the criminal penalty enhancements and/or new crimes we can expect in the 83rd Texas Legislature in 2013, IMO  we're almmost certain to see legislation proposed banning dog breeds - especially pit bulls and related variants - under the pretense of protecting children, old people, etc., from deadly dog bites. Witness a Houston Chronicle story from yesterday that frames the issue in precisely that way, decrying the fact that "In the past five months, a newborn, another toddler and a 71-year-old retired teacher have been attacked and killed by dogs in the Houston area." Reported the Chron's Cindy Horswell:

Jaimee Westfall, a trauma nurse at Texas Children's Hospital for 13 years, said serious dog- bite cases were unusual in years past but now are becoming increasingly common.

"Over and over, I hear the victims' families say that they never thought their dog could do this," Westfall said. "He just snapped."

Thousands of complaints about aggressive dogs also are pouring in to the Harris County Sheriff's Office.

"We had 4,130 calls this past year in the unincorporated area, which is 5 percent more than the year before," said sheriff's spokesman Thomas Gilliland.

The dogs linked to the three recent deaths and many catastrophic injuries at Texas Children's were attributed to pit bull-type breeds that can include the American pit bull terrier, Staffordshire bull terrier, American Staffordshire terrier as well as sometimes American bulldogs and presa canarios.

Colleen Lynn, who heads a national dog-bite victim group based in Austin, said 71 percent of the 31 dog-bite deaths recorded across the U.S. last year involved pit bull-type dogs.

This is an area where victims are seeking to use sweeping criminal laws to effect deterrence that would be much better achieved through a more robust civil justice system. Owners of aggressive dogs that attack someone have no "mens rea," or criminal intent,  which in generations past was the bright-line distinction dividing criminal law and civil liability. But by the 21st century, that distinction had been muddied through overcriminalization and the expansion of criminal law to supplant other types of regulation.

Meanwhile, while we all feel terrible for the 31 people killed in dog attacks last year (22 by pits and their mixes, according to the story), there are an estimated 3.5 million or so pits and pit mixes in the United States, making them one of the more popular breeds. Also, people get bitten by dogs a lot, and mostly not by pit-associated breeds. About 1.5% of the American public is bit by a dog each year, with one in six bites requiring medical attention. So in practice, a breed-specific ban won't address most dog bites, and most dogs subject to it would be unlikely to ever seriously harm anyone.

Americans are prone to demonize dog breeds almost as a fetish, and at any given point in time the folks who worry about dangerous dogs always seem to have some waxing bogeyman to critique. After WWII, German Shepherds were the most feared attack dog. In the '60s,  a movie starring James Garner titled "They Always Kill Their Masters" helped shift that scare-focus to Dobermans. And in recent years, urban dog fighting culture, a la Michael Vick, has shifted similar concern to pits.

But most pits (or Dobermans, or German Shepherds) aren't a serious threat, while any dog that's mistreated, neglected, or afraid can become dangerous. I happen to own three dogs, two of which would be characterized as pit-mixes. All three came to us essentially through rescue type scenarios - the pits from a young, since-incarcerated idiot who had bought them, but never trained them, to fight. Of the three, the only one I worry about biting anybody is the much smaller, non-pit mutt (a mix of Chow, German Shepherd, and some sort of much-smaller terrier breed, at least). The bigger dogs are a greater danger to lick you to death. Moreover, when they're around anyone  they don't know, small children, etc., I make sure I closely control them, in part because of the extreme prejudice aimed at pits. As a practical  matter, they pose little risk to anyone.

By contrast, in my neighborhood in Central East Austin, there have always been people who chain aggressive dogs outside or in some cases train them to fight. (Until the area began to gentrify and white people began to complain, we didn't see animal enforcement here much.) Any one of those chained dogs - regardless of breed - is more dangerous than any of my animals. As "Dog Whisperer" Cesar Milan wrote recently on the subject, "a breed is like a suit of clothes, it doesn’t tell you anything about the dog inside." One of Michael Vick's fighting pits actually ended up being trained and certified as a therapy dog (for which, it merits mention, pits are temperamentally well-suited). In a proper environment, these are loyal and submissive animals with big hearts, while in the wrong environment, any dog can become a danger.

To me, the idea that the government would ban or euthanize my dogs based on such long odds of tragedy borders on demonical. My dogs are my friends, my family - like this poor fellow, I'd feel incredibly guilty and sad if I ever acted on such busy-body advice to kill them. Milan says that he rehabilitates animals but trains people, and IMO irresponsible humans (and perhaps increased rates of reporting) are the proximate cause for the rise in dog-bites, not pits in general, and certainly not mine. Legislators should seek methods besides breed bans and criminal enforcement to counter the problem, and encourage victims to avail themselves of the civil justice system. In the meantime, though, keep your paws off my dogs.

Woman still jailed on dog-scent evidence granted high-court hearing

Brandi Grissom at the Texas Tribune/New York Times brings word of more fallout from the dog-scent lineups performed for two decades across Texas by former Fort Bend County Sheriff's Deputy Keith Pikett.

Ms. [Megan] Winfrey; her brother, Richard Winfrey Jr.; and their father were charged with conspiring to murder and rob Murray Burr, a longtime custodial worker at the high school the Winfreys attended.

Both the father and the son are free after courts decided the state’s key evidence — obtained in scent lineups — was not enough to establish their guilt. Ms. Winfrey remains in a Gatesville prison despite the fact that her conviction hinged largely on the same dog-sniffing evidence.

“She’ll be an old lady before she’s eligible for parole, and Megan is innocent,” her father said. 

Regular readers may recall Grits writing about her father when his case was overturned by the Texas Court of Criminal Appeals. Now, reports the Trib's Brandi Grissom:

With the acquittals of her brother and her father and the court’s ruling on dog-scent evidence, Ms. Winfrey’s lawyers argue that she should also be acquitted, and the Texas Court of Criminal Appeals has agreed to review her case. Ms. Winfrey’s lawyers would not make her available to comment for this article.

District Attorney Richard Countiss of San Jacinto County filed a perfunctory brief opposing Ms. Winfrey’s appeal.

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

Fish stories and dog tales: Police misconduct roundup

Here's a roundup of recent police accountability stories that were big enough to make it onto Grits' radar screen but haven't found their way into individual posts:

Firing too harsh for failure to report jail beating?
Three Cameron County jailers have been fired: One for beating an inmate and two for watching and failing to report. The two who covered up the incident  say firing them was too harsh. Let me know if you agree in the comments.

Sheriff convicted over fish story
Sheriff Weldon Tucker in Bandera County was convicted of a felony charge of abuse of official capacity after he was caught using the department's rescue boat to check his trot lines. The offense seems trivial except that he lied about it: "In 2009, Tucker publicly denied using the boat recreationally, or outside Bandera County. But a game warden had stopped him as he used it to retrieve trot lines at Choke Canyon after his personal boat broke down."

Dogs v. State
Under pending legislation, you could soon get life in prison if your dog attacks and kills someone under 18 or over 65, but if a cop comes on your property without a warrant and shoots your dog, they won't pay the vet bill because they're not liable for property damage. Go figure.

Not quite a 'mastermind'
Reports AP, "A former Dallas police officer convicted of aggravated robbery for masterminding a heist at a Sam's Club while working there off-duty as a security officer has been given probation." When you fail at robbing a place where you yourself are providing security, perhaps "mastermind" isn't the right word.

Shake down
Another cop, this time in Houston, arrested for allegedly shaking down drivers at traffic stops. Here's an interview with the fellow who reported the alleged extortion.

Prostitution stories
A former Houston police officer was sentenced to six years in prison for raping a prostitute, while a Harris County deputy constable was murdered after an argument over money with a pimp whose employee's services he'd just enjoyed.

Wrongful death suit over off-duty shooting
The family of a wrecking truck driver has filed a civil rights suit over his death at the hands of an off-duty Houston police officer, alleging that Officer Ryan Gardiner "shot and killed John T. Barnes under circumstances where no reasonable police officer would have done so."

Bystander shot after foot chase
A Bryan police officer chasing a man, apparently, because he ran, shot him several times at the denouement of a foot chase, also injuring a construction worker/bystander. "The shooting happened Friday morning as an officer was running after a suspicious person who may have been intoxicated, according to the Bryan Police Department." He and another officer are on administrative leave pending the investigation.

Second time's the charm
An arbitrator upheld the second firing of Austin police officer Leonardo Quintana over a domestic violence allegation after he'd been reinstated to the force after his earlier firing in the wake of shooting Nathaniel Sanders, which is the subject of an ongoing civil rights lawsuit by the family of the deceased.

Deputy allegedly picking colleauge's bones
From the Fort Worth Star-Telegram: "A former deputy recently fired by the Parker County Sheriff's Department surrendered to authorities Saturday after he was indicted in the theft of thousands of dollars from a memorial fund set up to benefit the widow and son of a fellow deputy." Yikes!

Anthony Graves: Innocent and free 16 years after unfounded death sentence

Anthony Graves was convicted of capital murder in 1994 and 12 years on death row and the last four in the Burleson County jail, but today walked out of the courthouse an innocent man. From the Houston Chronicle:

Washington-Burleson County District Attorney Bill Parham dismissed the case after he and his team investigated the case for five months.

"He’s an innocent man," Parham said today. "There is nothing that connects Anthony Graves to this crime." He said the dismissal was just.

"I did what I did because that’s the right thing to do, and I’m fine with it," he said.

An attorney for Graves, Jimmy Phillips, Jr. said his client was released about 5:30 p.m. "The first place he wanted to go is to go hug his mama," Phillips said. "He is a free man and he’s home."

Kelly Siegler, a prosecutor hired to re-try Graves, agreed with Parham.

"After months of investigation and talking to every witness who’s ever been involved in this case and people who’ve never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder," Siegler said.

"This is not a case where the evidence went south with time or witnesses passed away or we just couldn’t make the case anymore. He is an innocent man."

The only witness against Graves was the actual killer in the incident, a man who recanted his testimony to prosecutors the night before Graves' trial, but was threatened with prosecution of his wife if he did not go ahead and accuse Graves of being his accomplice. Students from the innocence clinic at the University of Houston Innocence Network at the University of St. Thomas first discovered the prosecutorial misconduct five years ago, leading the US 5th Circuit Court of Appeals to later throw out the conviction because the prosecution did not disclose this exculpatory evidence to the defense. As far as I'm concerned, the original prosecutor in the case, Charles Sebesta, should be immediately disbarred and lose any prosecutorial immunity for his willful failure to disclose the recantation. What a disgrace to his profession.

It's interesting to note the language used by the prosecutors in the story, declaring they could find "not one piece of credible evidence." That's particularly significant because Deputy Keith Pikett's infamous dogs reportedly picked out Graves in a "scent lineup," but clearly prosecutors, to their credit, don't consider that evidence "credible."

Congratulations to Graves and his attorneys and kudos especially to the students whose research led to this jaw-dropping turn of events, not to mention the latter-day prosecutors who finally admitted (better late than never) that Graves is actually innocent. For more background on the case, check out Jeff Blackburn's guest post on Grits published while I was on vacation and an excellent Texas Monthly feature by Pam Colloff.

See prior, related Grits posts:

• Progress and its Discontents, or what I learned from an article in Texas Monthly
• 'Scent lineup' evidence may be used in Anthony Graves capital murder case
• Tales from death row: Passion and intrigue marked two capital murder trials
• Blog: Four of 10 worst US prosecutors in Texas
• Prosecutors improperly withheld confession in death penalty case

Time to ban junk science from courtrooms

Kicking off Flawed Forensic Science Week, here's a notable excerpt from an op ed in the Houston Chronicle ("It's time to ban junk science from Texas courtrooms," Oct. 2) from Jeff Blackburn, Gary Udashen and Cory Session (Timothy Cole's half brother) from the Innocence Project of Texas on the need to ferret junk science out of Texas courtrooms and redress wrongful convictions from the past:

There are few things more convincing to a jury than scientific evidence presented by expert witnesses called by the state in a criminal case. Sometimes, however, the so-called science used by prosecutors isn't science at all.

Many Texas defendants have been convicted when fraudulent or invented forensic techniques were presented as scientific truth at trial. Others have gone to prison as a result of genuine science being twisted into false accusations of guilt. From the Houston Crime Lab disaster to the discredited testimony of experts like Ralph Erdmann and Fred Zain, Texas leads the nation in scandal over this problem. The Cameron Todd Willingham case, in which discredited arson science was used to get a conviction, is only one of many examples of the use of this kind of evidence.

Just last year, the Innocence Project of Texas exposed the work of Keith Pikett, a Fort Bend County Sheriff's deputy who made use of "dog-scent lineups" to link suspects to evidence retrieved from crime scenes. The Innocence Project report [ed note: see the pdf here], entitled Dog Scent Lineups: A Junk Science Injustice, called attention to the numerous wrongful accusations and convictions that resulted from this form of junk science. Even though the self-trained deputy did not have a scientific background, he was allowed time and time again to testify in criminal trials about the alleged science behind his lineup procedures. Pikett's expert testimony was all junk and no science — and it was used repeatedly by prosecutors. In an encouraging move, the Texas Court of Criminal Appeals recently reversed a case based on Pikett's testimony. That move aside, prosecutors are still allowed to use charlatans like Pikett in Texas courtrooms.

The technique of using phony experts, unscientific evidence or just plain fraud dressed up as expert testimony is known as the use of junk science. It is being employed to get convictions in courtrooms all over the state to this day.

Fortunately, there are solutions to this problem. Innocent citizens who have been convicted in the past because of junk science need to have a fair day in court to prove that they were wrongfully convicted. Forensic labs need to be separated from law-enforcement agencies and made fully accountable to the scientific community. Trial procedures need to be improved so that innocent citizens will not be victimized by junk science in the future.

Dog scent lineups discredited at TX Court of Criminal Appeals

Outstanding news for those concerned about the use of shoddy forensics in criminal courtrooms: As of today, dog-scent lineups are no longer adequate to secure a criminal conviction in Texas.

In a move that long-time court-watchers may find shocking, the Texas Court of Criminal Appeals today reversed a murder conviction which had resulted in a 75-year sentence and ordered the defendants acquittal based on the unreliability of dog-scent lineups by Deputy Keith Pikett from Fort Bend County, whose bizarre and unreliable practices are well-known to long-time readers of this blog. (See initial coverage from AP and the Austin Statesman) Richard Winfrey, Sr. was was represented on appeal by Dallas attorney Shirley Baccus-Lobel (who in the interest of full disclosure happens to be a boardmember at one of my former employers, the Innocence Project of Texas). The ruling was unanimous, with the exception of Judge Meyers who did not participate in deliberations.

The entire case against Winfrey was based on two pieces of particularly shoddy evidence: A dog-scent lineup and a jailhouse snitch. (See the court's opinion, authored by Judge Barbara Hervey.) However the attorney at trial had not challenged the scent lineups, Baccus-Lobel emphasized when I spoke to her this afternoon, so the CCA could only rule on the legal sufficiency of the evidence, which they found inadequate. Here's how Judge Hervey described the case:

In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed twenty-eight times and had received multiple blunt-force injuries, including a broken right-eye orbit and a broken jaw. There was no evidence of forced entry into the victim's home. The evidence indicated that the victim was dragged from his living room to his bedroom where his body was found. Family members reported that the only item missing from the victim's home was a Bible.

Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members. (1) Appellant's children, Megan (then 16 years of age) and Richard Winfrey Jr. (then 17 years of age), became persons of interest in the murder investigation. Texas Rangers interviewed appellant approximately two weeks after the murder. Appellant was not considered a suspect at this time.

Then in 2006 a jailhouse informant came forward to claim Winfrey, Sr. had told him information he had "heard" about the murder, most of which turned out to be false. The informant said Winfrey Sr. told him a gun and knife collection had been stolen (the victim's family said only a Bible was missing) and that Burr's penis had been mutilated (untrue). At this point:

To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff's office. Deputy Pikett testified about a "scent lineup" that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were "pre-scented" on the scent samples obtained from the victim's clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant's scent sample.

Based on this, Deputy Pikett concluded that appellant's scent was on the victim's clothing.

That was enough for the jury, who convicted Winfrey and sentenced him to 75 years. Winfrey's son, Richard Jr., was also accused but was acquitted at trial. However, Winfrey's daughter, Megan, who was 16-years old when the murder occurred and knew the victim, who worked at the school she attended, was certified to stand trial as an adult and convicted of capital murder and conspiracy to commit murder based on essentially similar evidence. She received a life sentence on the capital murder and 45 years on the conspiracy charge. Her direct appeal is presently pending, according to her lawyer Scott Pawgan, who told me he plans to file a supplemental brief in the wake of her father's acquittal. So it's possible this may not be the last reversed conviction stemming from this case before all is said and done.

Deputy Pikett, whose magic dogs provided the main testimony (Woof woof!) against Winfrey, retired earlier this year after the Innocence Project of Texas published a highly critical report (pdf) about his dog-scent lineup practices, revealing among other things that he'd exaggerated his professional credentials in the precedent-setting court case that established his dogs' testimony as admissible forensics. Judge Cathy Cochran wrote a short concurrence emphasizing that the Court could not consider the admissibility of the dogs' testimony because it hadn't been challenged at trial, but this ruling sets the stage for them to do so in the future when the appropriate case finally reaches them. Judge Hervey's ruling already will substantially limit scent-lineups use in the future, as evidenced in this notable excerpt:

We note, however, that the science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have been employed for detecting narcotics and explosives, for tracking trails, in search-and-rescue operations, for locating cadavers, and for discriminating between scents for identification purposes. In thousands of cases, canines and their handlers have performed with distinction. Despite this success, we acknowledge the invariable truth espoused by Justice Souter that "[t]he infallible dog, however, is a creature of legal fiction."

This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, "there is little distinction between a scent lineup and a situation where a dog is required to track an individual's scent over an area traversed by multiple persons." Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking. ("[I]t is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.").

Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence. Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held that dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. And as recently as 1983, the Supreme Court of Washington agreed. In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. "Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups." Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L.J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that "[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence." To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive. (Legal citations omitted.)

IPOT's Chief Staff Attorney Natalie Roetzel wrote this afternoon in an email, "Needless to say, we are very excited about this development today.  We have a good handful of dog-scent lineup cases in the hopper, and we are optimistic that there may be some more exoneration stories in the works."

Congrats to Baccus-Lobel and Mr. Winfrey, and for that matter to the Court of Criminal Appeals for taking what's for them a highly unusual step. Now what's needed is for somebody, somehow, by some means, to vet other old cases involving Deputy Dawg Pikett's so-called forensics. It's a virtual certainty these aren't the only cases where Pikett offered the main or only evidence on which Texas prosecutors obtained convictions.

See prior, related Grits posts:

• 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