Thursday, September 23, 2010

The Smell of Freedom

We use 6-quart paint cans that have numbers on them. They're just clean paint cans, and I put a piece of wood on the bottom of them so they are more stable and they're numbered. I set the paint cans out. I typically go like ten walking steps, put a can down; ten walking steps, put a can down. The cans are placed so there-with a crosswind-so if the can is here and the next can is here, the wind is going either this way or this way. We don't want the scent from can 2 blowing toward 3 or toward can 1. We want the wind to be blowing away, so it's not going to cross-contaminate that way. So we check that. Then I set the cans out.
That's the background procedure of a dog-sniff lineup as explained to a jury by Deputy Keith Pikett, a dog handler with the Fort Bend County [Texas] Sheriff's office, at the capital murder trial of Richard Lynn Winfrey.
Pickett set up the cans.  Bits of clothing from six people, one from Winfrey, were put in the cans. Pickett's three bloodhounds were then given given scents obtained from clothing worn by Murray Wayne Burr when he was murdered three years earlier.  The dogs went to the can with Winfrey's clothes.
You might think that wasn't much.  Even Pikett acknowledged that it didn't prove a thing about a killing.  It just established a "scent relationship" between the two things.  And that's easy to get, as Pikett explained.
It's possible to transfer scent. . . . If I shake hands with you, I can give you the scent on my hand.
But the other evidence, well, Waco criminal defense lawyer Walter Reeves, Jr., explains on his blog.
The amazing thing is there was other physical evidence - bloody fingerprints and hair. None of that matched the defendant though, so the State had to go with the dog.
I mean, when it's all you've got, it's all you've got.  (That might not be quite fair.  There was also the alleged statement to the jailhouse snitch that he'd heard of some facts about the case, but having heard a rumor is simply not evidence of guilt.)  Still, it was enough for the jury and then the court of appeals.
Guilty of murder.
I've talked about drug dogs before.  Even if they're perfectly trained and reliable, their alert proves no more than the residual effect of a scent, not the presence of drugs.  Pikett's bloodhounds are no different.  They prove nothing of consequence.  Still, there was that guilty thing.
And then, yesterday . . . .  (I'm trying to build suspense here) . . . 
Reversed and acquitted by a unanimous Texas Court of Criminal Appeals.
The evidence, they said, just wasn't sufficient.
The majority opinion by Judge Hervey discusses at some length the essential worthlessness of dog scent lineup evidence.  And while Hervey doesn't quite say dog scent evidence is inadmissible, he does say it's not enough.
It cannot be denied that the jury and the court of appeals found the dog-scent lineup evidence in this case to be compelling. In 2004, two different dogs alerted only to the scents of appellant's son and daughter. In 2007, three different dogs alerted only to appellant's scent. But, the question essentially presented in this case is whether dog-scent lineup evidence alone can support a conviction beyond a reasonable doubt. And, while this evidence may raise a strong suspicion of appellant's guilt, we nevertheless decide that, standing alone, it is insufficient to establish a person's guilt beyond a reasonable doubt.
A concurring opinion by Judge Cochran agrees that the evidence of guilt was insufficient but think the court shouldn't have discussed the merits of dog-sniff lineups. 

Richard Lynn Winfrey can now go home and try to figure out how to rebuild a life shattered by junk evidence (like Reeves, I hesitate to give it the dignity of calling it "junk science"), by a prosecutor who wasn't satisfied with evidence that excluded Winfrey as a possible contributor, and by a rule that's anathema to our theoretical idea of a criminal justice system but that's nevertheless honored by it:
Someone was killed, so someone else has to pay.
Not this time.  A rousing (albeit rare) Lone Star Salute to the Texas Court of Criminal Appeals.


  1. Nice one, Jeff. I hoist my martini glass to you and offer a tip of the straw boater.

    Just try and explain the relationship between fingerprints or DNA evidence and the crime in question to a jury of the defendants 'peers'. Overcome the emotional arguments from the victim's family (or fambly, including cousints, bubba and sissy as the case may be).

    Aggrieved Citizen: But the DNA matched! That means he raped and kilt her! You sons ah bitches are just tryin' to get him off on a damned technicality!

    Defense Attorney: Yes, the DNA found in, on and about the victim does match my client, and we do not deny that. Yes, my client had consensual sex with the deceased. Now think: who is the likely perpetrator here, my client who was having an affair with a married woman who had recently filed for divorce and had a restraining order against her abusive soon to be ex-husband, or could it be that the ex-husband, one day out of jail and completely shit faced from an all night drunk during which time he was thrown out of three Toledo North End bars for fighting, loaded up his brother in law's stolen .38 and went over to talk to the soon to be ex-wife? In violation of the restraining order? Could he be the person who shot her six times as she slept?

    Aggrieved Citizen: But the DNA matched!

    You know, I always wanted to be an attorney, especially a criminal trial lawyer. Then I found out about the incredibly stupid people who sit on juries. That would be my 'peer' group. Right?

    Sometime I'd like you to write a paper on just how any reasonable human being could believe that when a black teenage gang member is on trial for murder, his peer group consists of lily white college graduates who are trying to decipher the meaning of the phrase 'word up' and whose idea of a gang is based on West Side Story.

  2. Oh, come on. It's not West Side Story. It's Grease.