Legally Speaking: Scents and Sensibility-When Evidence Doesn't Pass the Smell Test (Part 3)

John G. Browning Jul. 28, 2010, 6:52am

(Part 3 of 4)

In the previous installments in this series, we examined the controversial use of so-called "dog-scent lineups" in Texas, and how they've resulted in the wrongful accusation and jailing of innocent people.

In particular, we looked at how one man – former Fort Bend County Sheriff's Deputy Keith Pikett – stood at the center of this controversy, persuading prosecutors, judges and juries across Texas of the near-infallibility of his bloodhounds for years, despite lies about his qualifications and the questionable validity of the science behind his assertions.

But as we'll see, the tangled web of Pikett's "junk science" has begun to unravel in recent months, spurred on by challenges by several criminal defense lawyers, animal behavior experts and civil attorneys bringing federal lawsuits on behalf of those wrongfully accused. Set against the backdrop of debate over forensic science standards in Texas, courts have grown increasingly skeptical about dog-scent lineups.

The first cracks in the façade of Keith Pikett's dog scent "evidence" began appearing in June 2009. That month, Dallas criminal defense lawyers Shirley Baccus-Lobel and Billy Ravkind tried the murder case of Richard Winfrey Jr. in San Jacinto County, against a prosecutor who touted dog scent lineups as being "as reliable as DNA" and who was armed with the seemingly invulnerable Pikett as an expert witness.

The case concerned the August 7, 2004, killing of Murray Burr, a high school janitor found brutally beaten and stabbed 28 times in his home in Coldspring, roughly 20 miles outside of Huntsville. Police investigators focused their attention on two local teenagers, 16-year-old Megan Winfrey and her 17-year-old brother Richard Winfrey Jr.
With no evidence at the scene linking the children (or anyone else, for that matter) to the crime, law enforcement turned once again to Pikett and his dogs for help.

As he had done so often before, Pikett conducted a scent lineup: the scent of the victim was collected by wiping gauze pads on his shirt and pants, and other scent pads were taken from the accused teenagers. The pads were then placed in separate tin cans roughly 10 steps apart, outdoors.

Pikett then had his bloodhound smell a scent pad from the crime scene before walking the leashed dog by the cans, waiting for an "alert" that the bloodhound had found a matching smell: stopping, turning, barking or some other sign.

Pursuant to his usual practice, Pikett did not have the people who placed the pads into the cans wear gloves, nor did he sterilize the cans between lineups.

In the first lineup, held two weeks after the murder, Pikett claimed his dogs found scents belonging to the Winfrey teenagers on Burr's clothes. With nothing else to go on, however, the investigation floundered until 2006.

At that time, a jailhouse informant sharing a cell with Richard Winfrey Sr. (who had been arrested on unrelated charges) said that Winfrey had been discussing certain details about the crime. In March 2007, Winfrey Sr. and his two children were charged with capital murder.

In August of that year, Pikett once again conducted a scent lineup, and once again his dogs didn't let him down; they "alerted" him to the odor of the older Mr. Winfrey on Burr's clothing.

The three family members were tried separately, with radically different outcomes. Based largely on the dog scent "evidence," Richard Winfrey Sr. was found guilty of murder and sentenced to 75 years in prison. His daughter Megan was convicted of capital murder.

Neither had defense lawyers who put on expert testimony to question Pikett on his methods.

In defending Richard Winfrey Jr., however, Shirley Baccus-Lobel and Billy Ravkind did bring an expert – an actual scientist, Dr. I. Lehr Brisbin.

Brisbin, a retired animal behaviorist at the University of Georgia, analyzed video of the dog scent lineups performed by Pikett, and methodically picked it apart.

"According to Pikett, the alert is whatever the dog did. Whatever the dog did is a reaction to what Pikett did; in other words, the dog is responding to Pikett cueing the dog," says Dr. Brisbin.

Moreover, Brisbin testified, the film revealed that the "actions of the handler are consistent with the handler knowing where the can is" – a big red flag, since the dog could be clued by the handler as to the correct sample.

According to Brisbin, to avoid the risk of such a tip off, neither the handler nor anyone present at the lineup should know where a suspect's sample is.

"There was a complete look of assurance" of that, says Brisbin, who pointed to the fact that the camera zoomed in on the correct gauze pad station and the fact that "the dog is constantly looking off camera, like it's being signaled."

Brisbin testified that the behavior of the dog and Pikett suggested that he was controlling or clueing the bloodhound – Pikett's feet would stop, the leash would be tightened, and Pikett was inconsistent in identifying what was and wasn't an alert.

Overall, Brisbin testified, Pikett's methods are "not scientifically accepted."

The jury agreed with Dr. Brisbin, and completely rejected Pikett's testimony and his ludicrous claims that his dogs had never made a mistake, taking only 13 minutes to return a verdict of not guilty.

According to Shirley Baccus-Lobel, the prosecution erred by asking the jury to blindly accept Pikett's qualifications and methods.

"The members of the jury (two of whom owned bloodhounds) were offended by the prosecution's attitude about their appreciation of science. As one juror said, 'Just because we're small town people doesn't mean we're small-minded people.'"

It helped that, in addition to being a real scientist, Dr. Brisbin can hardly be tarred with the "hired gun" brush. All of his witness fees are donated to a canine research foundation at the University of Georgia, and as he describes his motivation,

"I want justice to be done. We have to stop the junk science from giving the field a bad name," he said.

Days after the acquittal of Richard Winfrey Jr., Pikett's already tarnished reputation took another damaging blow. On June 16, 2009, on his home turf of Fort Bend County, Keith Pikett – once a law enforcement superstar – was not permitted to take the stand and testify because a judge ruled him unqualified.

Following a detailed presentation in State of Texas v. Justin Alexander by defense attorney Steven Gilbert about the questions surrounding Pikett's methods and credentials, District Judge Brady Elliott ruled "Deputy Pikett's methods fail the reliability test and therefore I will not qualify him as an expert."

Other defeats followed. After initially relying on Pikett's assertions that his dogs could (and allegedly did) identify scent evidence from murder investigations from 1988 and 1992, respectively, the Texas Attorney General's Office announced in October 2009 that it had "imposed a moratorium prohibiting the use of scent evidence."

In May, another Fort Bend County district judge threw out Pikett's dog scent lineups as unreliable in a capital murder case. Forty-three-year old Rodolfo Dominguez was charged with the murders of George Leal and Norma Garcia; the couple was found on April 5, 2008, dead of gunshots to the head.

Pikett and his bloodhounds linked Dominguez to the crime on the basis of a scent lineup using four pillows, two cell phone cases and a cartridge found at Leal's house.

After a pre-trial hearing that lasted three days, Judge Clifford Vacek ruled that "Since we don't have the ability to verify the results or to repeat the tests, this court finds that this type of test is not reliable enough, and, therefore, it is not admissible."
Dr. Lehr Brisbin testified for the defense during that pre-trial hearing.

Beleaguered by such setbacks in court, along with increasing media scrutiny and multiple civil lawsuits, Keith Pikett retired in February. The calls for assistance from other law enforcement personnel had already stopped coming, perhaps out of fear of being sued as well.

On May 26, Richard Winfrey Jr. filed a lawsuit in the U.S. District for the Southern District of Texas against Pikett, San Jacinto County, Fort Bend County (Pikett's employer at the time of Winfrey's prosecution) and several current and former sheriffs' officers from both counties.

The lawsuit seeks damages for conspiracy, malicious prosecution, abuse of process, intentional infliction of emotional distress and myriad violations of Winfrey's constitutional rights. The case now makes a half-dozen civil lawsuits currently pending against Pikett in federal court.

In the complaint, Winfrey's lawyers maintain that Pikett's dog scent lineups "epitomize the worst of junk science," in which he "never tested the dog scent lineups' accuracy, nor did he establish a set of standards under which to conduct the lineups."

To make matters worse, they allege, Pikett "repeatedly lied under oath about his qualifications, his training, and the supposed infallibility of his dog identifications."

The civil suits are ongoing, but what about the rest of Pikett's tainted legacy – those individuals convicted and currently behind bars?

In the next installment of this series, we'll look at the Texas Court of Criminal Appeals – the highest criminal court in Texas – and its consideration of one such defendant's appeal.

We'll also examine the current status of dog scent lineups nationally, and try to place them in the context of the larger debate about strengthening oversight of forensic science in an attempt to keep junk science out of the courtroom.

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

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