Legally Speaking: Scents and Sensibility -- When Evidence Doesn't Pass the Smell Test (Part 1)

John G. Browning Dec. 2, 2009, 2:00pm

(Part 1 of 4)

"So lay Argo about the house, all shivering with dog-ticks. Yet the instant Odysseus approached, the dog knew him." Homer, "The Odyssey"

Odysseus' elderly dog Argos may have instantly recognized the scent of his long-lost master, but don't count Michael Buchanek among the believers in the infallibility of a dog's olfactory abilities.

Buchanek, you see, was initially identified as the prime suspect in the March 2006 strangulation murder of his friend and neighbor Sally Blackwell, not because of any crime scene evidence but instead on the strength of the highly controversial use of so-called dog-scent lineups.

Although Buchanek was later cleared, his civil lawsuit and those of several other Texas men who were wrongfully convicted on the basis of such dog-scent "evidence" have focused attention on the use of such methods and on the larger issue of the prevalence of "junk science" in Texas courts.

In this series, we'll examine the use of dog-scent lineups, hear from both critics and proponents of the practice as a forensic tool, and examine the use of dog scent evidence in the context of the larger debate over forensic science scandals in Texas.

The highly sensitive noses of dogs have long proved helpful in tracking people — not just criminal suspects, but also lost individuals. They've been used to locate the bodies of crime victims as well as victims of building collapses and natural disasters. And, of course, we're accustomed to the use of drug- and explosive-sniffing canines.

In dog-scent lineups, unlike other uses, the dogs in question are employed not to locate someone, but instead to pick a suspect's smell out of a group. Law enforcement investigators get a scent from items found at a crime scene, and transfer the scent by rubbing a gauze pad on the source item or by rubbing the pad on someone's body or clothes. The gauze pad is then placed in a container (usually a tin can).

A "lineup" of such containers with pads bearing individual scents from the possible suspect and others not associated with the crime then takes place. A handler gives the dog the scent it's looking for, and then walks it down the line of containers.

According to proponents of such lineups, the dog (usually a bloodhound) will give a signal to its handler — stiffening, barking, etc. — upon finding a can with a matching scent.

Critics of dog scent lineups say that the methodology is lacking in reliability, any regulatory system to measure a dog's accuracy, and too often is nothing more than a "dog trick" used to justify the suspicions of local law enforcement.

Michael Buchanek knows all too well about such suspicions. Before being implicated as a suspect in Sally Blackwell's murder, Buchanek had served with the Victoria County Sheriff's Office for more than 25 years, most recently as a commander of operations.

Yet in March 2006, he found himself on the other side of the interrogation table after dogs belonging to Fort Bend County Sheriffs Deputy Keith Pikett "identified" his scent.

After Blackwell's body was found in a field several miles from her home, Pikett's bloodhounds sniffed crime scene evidence, including the rope used to strangle her. The dogs then "matched" the scent to Buchanek.

For five months, the veteran officer protested his innocence even as his former colleagues believed the dogs over Buchanek. The cloud of suspicion was lifted only when DNA evidence implicated another man, Jeffrey Grimsinger. Grimsinger later pleaded guilty to the crime.

Earlier this year, Buchanek filed a lawsuit against Keith Pikett, the Victoria County Sheriff's Office, and the Victoria Police Department alleging that his constitutional rights were violated when he was falsely accused. He points to the mental anguish he suffered and is seeking unspecified damages.

His attorney, Rex Easley, faults Pikett for devising "an unreliable dog trick" and leading the dogs. Pikett's lawyer, Fort Bend Assistant County Attorney Randall Morse, denies the allegations, saying the trail that led to Buchanek was valid.

"Pikett doesn't arrest anybody," he points outs. "Our dogs don't say 'You murdered somebody.' They don't even say,'You committed a crime.' They just say 'We picked up your scent.'

As for dog-scent lineups in general, Victoria County Sheriff T. Michael O'Connor calls them a "a vital tool in working toward a determination of a case. We will use them again if it merits this type of service."

However, the Buchanek case is hardly an isolated incident. It is just one of a half-dozen civil suits that have been filed to date against Pikett and his superiors by people jailed or imprisoned because of his controversial dog-scent lineups.

At least three of these lawsuits have been brought with the assistance of lawyer Jeff Blackburn, who serves as general counsel for the Innocence Project of Texas, an organization that works on behalf of the wrongly accused.

One of the plaintiffs is 40-year-old Ronald Curtis. In August 2007, Curtis was arrested following a routine traffic stop when tools in his vehicle aroused the suspicions of police investigating a string of burglaries. A detective's hunch led to a dog-scent lineup with Pikett and his bloodhounds; based on the dog picking out Curtis' scent, Curtis was arrested and spent 8 months in jail.

In his case, the scent lineup appeared to outweigh other contradictory evidence, including store security videos depicting a burglar who looked nothing like Curtis. Meanwhile, the work of other detectives led to the arrest of the actual criminal right after another burglary was committed. Although Curtis was released, he remains understandably bitter about his incarceration and about Pikett's role.

"This man is a fraud — there needs to be a federal investigation," he says. "No one listened to me. I had four lawyers and finally had to represent myself to get the charges dropped."

Forty-one-year-old Cedric Johnson and 50-year-old Curvis Bickham share Curtis' frustration. Both men were arrested and charged with capital murder in connection with a triple homicide in southeast Houston. Houston police solicited Pikett's help with a dog-scent lineup, and Pikett and his canines were only too happy to oblige, swiftly matching the scent from a charred gas can found at the crime scene to Johnson and Bickham.

Despite their claims of innocence (in Bickham's case, his poor health and partial blindness made it especially unlikely that he could have pulled off the triple slaying), Bickham spent eight months in jail while Johnson remained behind bars for 16 months. They were ultimately released when another man confessed to the murders.

In January 2009, Calvin Miller of Yoakum County was taken into custody on suspicionof rape and robbery. Once again, Pikett and his dogs were called in to perform a scent lineup to validate police guesswork. Months later, after he was cleared by DNA evidence and an eyewitness identification that pointed elsewhere, Miller finally walked out of jail a free man.

Like Buchanek, he has since filed a civil rights lawsuit in federal court, and he is also represented by Rex Easley.

Jeff Blackburn estimates that 15 to 20 people may be in prison right now "based on virtually nothing but Pikett's testimony."

Just how did the dog handler Rex Easley calls a "charlatan" become such a go-to resource for law enforcement?

And what do other animal investigation experts say about his methods?

Finally, is the widespread use of such dog-scent lineups a legitimate forensic tool, or a form of unreliable "junk science" that has no place in the courtroom?

We'll provide answers to these questions as this series continues.

John Browning is a partner in the Dallas office of Thompson, Coe, Cousins & Irons LLP. He may be contacted at:

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