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

John G. Browning Nov. 17, 2010, 12:11pm

Editor's note: The first four installments of "Scents and Sensibility-When Evidence Doesn't Pass the Smell Test" appeared in the Southeast Texas Record on Dec. 2, 2009; Dec. 17, 2009; July 28, 2010; and Aug. 4, 2010.

The first four parts of this series chronicled how for years, Texas courts unquestioningly accepted junk science in the form of controversial "dog-scent lineups" that purported to tie accused individuals to a whole host of heinous crimes.

Former Fort Bend County Sheriff's Deputy Keith Pikett was at the forefront of this, gaining fame statewide for the "feats" of his bloodhounds. Pikett's fall was as dramatic as his rise, however.

It was revealed that Pikett had lied about his education and made unsupportable claims about his dogs' abilities; and after animal behavior experts and criminal defense attorneys exposed the absurdity of his claims, juries and judges began rejecting Pikett as a credible expert.

Although Pikett retired earlier this year, he still faces multiple civil lawsuits in federal court from wrongfully accused criminal defendants. More importantly, left adrift in the wake of Pikett's junk science were those who had been convicted on the strength of his since-discredited claims.

One such individual was Richard Winfrey Sr., convicted of the brutal 2004 murder of Murray Burr. Earlier installments of this series described how – despite an absence of any physical evidence – Winfrey Sr. was convicted (as was his daughter Megan) on the basis of a canine scent lineup conducted by Pikett nearly three years after the crime.

Winfrey's son, Richard Winfrey Jr. was similarly charged, but at his trial Dallas defense attorney Shirley Baccus-Lobel and Billy Ravkind mounted a brilliant defense that exposed Pikett's faulty claims and resulted in a "not guilty" jury verdict returned within minutes.

Baccus-Lobel soon turned her attentions to the daunting task of handling Winfrey Sr.'s appeal. His conviction had already been upheld by one appellate court, and his fate was up to the traditionally prosecution-friendly Court of Criminal Appeals, Texas' highest criminal court.

Less than two months after "Legally Speaking" focused on Winfrey's case, the Court of Criminal Appeals not only reversed the lower appellate court and threw out Richard Winfrey Sr.'s murder conviction, it provided the rare remedy of rendering an acquittal outright (typically, if it overturns a lower court's ruling, the Court of Criminal Appeals will send the case back for a new trial).

The judges on the Court of Criminal Appeals, noting that "the science underlying canine scent lineups has been questioned," held that dog scent lineup evidence, when used alone or as the primary evidence against a suspect, is legally insufficient to support a conviction.

Standing alone, the court said such evidence is "insufficient to establish a person's guilt beyond a reasonable doubt."

The court's opinion, delivered by Judge Barbara Hervey, was unanimous, an 8-0 ruling that the prosecution had failed to present any credible evidence linking Winfrey Sr. to the murder.

Could the court, which was clearly aware of the controversy surrounding the use of such unreliable, unscientific evidence, have gone further and decided that dog scent lineups shouldn't be allowed at all?

I believe the judges would have welcomed the opportunity to address this.

Unfortunately, that issue was not timely raised on appeal by Winfrey's previous lawyer (not Ms. Baccus-Lobel), and so could not be considered by the Court of Criminal Appeals – a fact that four of its judges noted in a concurring opinion. Because it wasn't preserved for appeal, the bigger issue transcending the Winfrey case of the shaky "science" and methodology underlying so-called "scent-discrimination evidence" could not be addressed once and for all.

But time moves on. One innocent man, Richard Winfrey Sr., is free. An appellate attorney for his daughter Megan Winfrey, Scott Pawgan, has asked the 9th Court of Appeals for permission to file a supplemental brief challenging the dog-scent lineup used to convict her.

Thanks to dedicated defense attorneys and the work of the Texas Innocence Project, others are joining the ranks of the exonerated. In late October, Anthony Graves was released from jail after spending nearly 18 years behind bars for the murders of Bobbie Davis, her daughter, and Davis' four grandchildren in 1992.

Another defendant, Robert Earl Carter, had named Graves as his accomplice, although shortly before being executed in 2000, Carter gave a sworn statement admitting that he had lied.

In a case that was recently chronicled in Texas Monthly, the 45-year-old Graves spent most of his adult life on Texas' death row. Over the years, more and more doubts began to emerge about Graves' conviction.

His appellate attorney, the Innocence Project at the University of Houston, and even students in a journalism class at the University of St. Thomas lobbied to re-open the case.

One of the prosecution witnesses cited in Graves' case was one Deputy Keith Pikett. In 2006, the 5th Circuit Court of Appeals overturned Graves' conviction and ordered a new trial.

Among other flaws noted in the prosecution's case, the Court of Appeals ruled that prosecutors had withheld two key exculpatory statements and obtained false statements from two other witnesses. After investigating the case all over again, special prosecutor Kelly Siegler decided to dismiss the charges.

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 any more. He is an innocent man."

This "Legally Speaking" series opened many eyes to the problem of junk science in Texas courts, and how unreliable, unscientific "evidence" offered by a slick charlatan can rob innocent men of their freedom.

Earlier this year, the series was honored with the Houston Press Club's Lone Star Award for outstanding commentary or criticism in a newspaper. A few weeks ago, it received the Dallas Bar Association's Philbin Award for Excellence in Legal Reporting, and it has been nominated for the Suburban Newspaper Association's award for best newspaper series and best investigative journalism.

I've even been invited to speak about the controversy surrounding dog-scent lineups at an annual forensic sciences conference in Fort Worth – the only non-scientist to be invited.

Bringing a story like this to light is important and not just because the issue of junk science in Texas courts is a vital one. Many of the accused individuals came from small towns, and were accused of crimes that generated little, if any, initial attention from "big city" newspapers.

Local newspapers serve their communities, too, and are just as capable of shining a light on irregularities in the legal system that can impact the people in these communities.

We shouldn't let justice go to the dogs.


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