"ON WEDNESDAY, WINFREY'S LAWYERS WILL ASK THE STATE'S HIGHEST CRIMINAL COURT TO TOSS OUT THE CONVICTION, SAYING IT'S UNSUPPORTED BY RELIABLE EVIDENCE. THEY'LL ALSO ASK THAT LOWER COURTS BE ORDERED TO APPLY MORE RIGOROUS SCIENTIFIC STANDARDS WHEN PROSECUTORS SEEK TO INTRODUCE DOG SCENT LINEUPS. BILL BURNETT, SAN JACINTO COUNTY'S DISTRICT ATTORNEY, WILL ADDRESS THE COURT OF CRIMINAL APPEALS AS WELL, FIGHTING NOT ONLY TO PRESERVE WINFREY'S CONVICTION BUT TO PRESERVE SCENT LINEUPS AS A "VALUABLE TOOL" FOR APPREHENDING AND PROSECUTING SUSPECTS."
REPORTER CHUCK LINDELL: AMERICAN-STATESMAN;
PHOTO: DEBORAH CANNON: AMERICAN-STATESMAN;
(Wikipedia infroms us that, "The Austin American-Statesman is the major daily newspaper for Austin, the capital city of Texas. It is an award-winning publication owned by Cox Enterprises. The Statesman places focus on issues affecting Austin and the Central Texas region.)
----------------------------------------------------------------------------------
BACKGROUND: This Blog has been delving into the havoc caused by the late John Preston and his magical dog who could purportedly trace scents across water. The focus has also been on Deputy Keith Pikett, another so-called dog-scent "specialist", a canine officer who was formerly with the Fort Bend County Sheriff's Office, just southwest of Houston. Time Magazine has reported on two apparent miscarriages of Justice involving Pikett; The first case studied involves Calvin Lee Miller, who was charged with robbery and sexual assault after Pikett's bloodhounds alerted police to a scent on sheets that Pikett said matched a scent swipe from Miller's cheek. DNA evidence later cleared Miller, but only after he served 62 days in jail. In a second case, former Victoria County Sheriff's Department Captain Michael Buchanek was named as a "person of interest" in a murder case after Pikett's bloodhounds sped 5.5 miles from a crime scene, tracking a scent to Buchanek's home. Another man later confessed to the murder.
----------------------------------------------------------------------------------
"No physical evidence tied Richard Winfrey Sr. to a brutal 2004 murder in East Texas, and no witnesses placed him at the crime scene," the American-Statesman story by reporter Chuck Lindell. published earlier today begins, under the heading, "Court asked to weigh dog-sniffing lineups: Murder case raises question about reliability of evidence from bloodhounds."
"Even so, Winfrey is serving 75 years in prison largely because three bloodhounds, trained by their self-taught handler to sniff out criminals, indicated that they smelled his scent on gauze pads that had been rubbed on the victim's clothing three years earlier and preserved in Ziploc bags," the story continues.
"Defense lawyers claim Winfrey was the victim of an unreliable, unscientific process known as "scent lineups," where dogs sniff crime scene evidence and try to match it to smells obtained from suspects or from items they have touched.
On Wednesday, Winfrey's lawyers will ask the state's highest criminal court to toss out the conviction, saying it's unsupported by reliable evidence. They'll also ask that lower courts be ordered to apply more rigorous scientific standards when prosecutors seek to introduce dog scent lineups.
Bill Burnett, San Jacinto County's district attorney, will address the Court of Criminal Appeals as well, fighting not only to preserve Winfrey's conviction but to preserve scent lineups as a "valuable tool" for apprehending and prosecuting suspects.
"Dog scent discrimination is not meant to be, nor can it conceivably be, a laboratory science subject to rigorous ... analysis," Burnett said in legal briefs to the court. "It is a forensic tool used in the field."
Central to the Winfrey case is Keith Pikett, a now-retired Fort Bend County deputy sheriff who trained a half-dozen of his bloodhounds to conduct scent lineups, using methods he created on his own and from dog training seminars, according to his testimony in other cases.
From 1993 to 2009, Pikett and his dogs conducted hundreds of scent lineups for about 20 Texas counties, the Texas Rangers, the state attorney general's office and federal agencies, including the FBI and the Drug Enforcement Administration, court documents show.
Pikett claimed his bloodhounds — sporting names such as Columbo, Quincy, James Bond and Clue — were nearly infallible in tying suspects to crime scenes, and together they became the toast of Texas law enforcement.
The 100 Club of Houston, a police support group, named Pikett its officer of the year in 2002, the same year Quincy was inducted into the Texas Veterinary Medical Association's Animal Hall of Fame for his crime-solving prowess. Admirers could collect trading cards picturing each hound wearing a police badge.
Austin-area law enforcement sang Pikett's praises when his dogs linked Reginal Demont James to the vicious rape of an 88-year-old woman in Elgin in 2006.
"The dogs identified Reginal James as the person who left that scent at the woman's house before the DNA identified him," Bastrop County District Attorney Bryan Goertz said after James pleaded guilty. "DNA, all it did was confirm what the dogs had already told us."
But James also matched the victim's description of her attacker and a shoeprint left at the scene, and witnesses placed him near the scene before the early morning attack. Other cases without such corroborating evidence would come to haunt Pikett.
Mistaken identity
In recent years, defense lawyers began fighting back with dog experts and scientists who questioned Pikett's methods as unethical, unprofessional and biased in favor of law enforcement.
Defense lawyers also point to a series of wrongful arrests or mistaken identifications that led to federal lawsuits against Pikett and law enforcement agencies he helped with scent lineups. Among those cases:
• Cedric Johnson and Curvis Bickham were charged with capital murder after Pikett's dogs matched their scents to a charred gas can at the scene of a 2007 triple murder in Houston. Another man eventually confessed, and Johnson was freed after 16 months in jail, while Bickham was imprisoned for seven months, their lawsuit says.
• Ronald Curtis was arrested in the burglary of a Houston store in 2007 after police found suspicious tools in his car. A judge quickly threw out the charge, but a month later Curtis was arrested again after Pikett's scent lineups linked him to three burglaries — despite in-store videotapes showing that he looked nothing like the two suspects, his lawsuit says. Curtis spent eight months in jail before the charges were dropped.
• After he was identified in a Pikett scent lineup, Calvin Miller was arrested in a February 2009 rape and robbery in Yoakum, about midway between San Antonio and Houston. He was freed after two months in jail when DNA tests cleared him and the victim failed to identify him in a physical lineup, his lawsuit says.
One of Pikett's biggest cases was the 2006 murder of Sally Blackwell, a Child Protective Services official whose body was found about five miles from her Victoria home. The case became a statewide sensation, spurred by fears that Blackwell was targeted for her work with abused and neglected children who had been removed from their homes.
Told by police that a "person of interest" lived near Blackwell's home, Pikett went to the man's cul-de-sac, had his dog smell a scent taken from Blackwell's body, and followed the dog to the house of Michael Buchanek, a former Victory County sheriff's captain who had been injured in an explosion in Iraq while training police recruits.
In a scent lineup that followed, Pikett reported that James Bond detected Buchanek's odor on a rope found with Blackwell, and Quincy found his scent on the woman's body.
Buchanek soon became a much-publicized "person of interest" in the investigation — until another man was arrested and pleaded guilty to the crime.
Jeff Blackburn, chief counsel for the Texas Innocence Project, likens Pikett's lineups to junk science masquerading as a forensic discipline.
"The result was just huge damage being done to these men on cases that should never have been filed," said Blackburn, who is representing Johnson, Bickham and Curtis.
All lawsuits against Pikett are still in the early stages of litigation. In Buchanek's case, U.S. District Judge John Rainey last month rejected Pikett's motion to throw out the lawsuit, ruling that Buchanek raised enough questions about whether scent lineups were "fictitious" to let the matter be decided by a jury.
Pikett, reached at his Houston home, declined to comment.
Stabbed 28 times
The Winfrey case, to be argued Wednesday at the Court of Criminal Appeals, began Aug. 7, 2004, when Murray Burr was found horribly beaten and stabbed 28 times in his home in Coldspring, about 20 miles east of Huntsville.
Investigators soon focused on Winfrey's children — Megan, 16, and Richard Jr., 17 — and two of their friends, but after evidence at the scene failed to link anyone to the crime, a Texas Ranger asked Pikett for help.
Based on Pikett's instructions, the Ranger wiped clean gauze pads on the victim's shirt and pants, and other pads on the skin of the four potential suspects, according to court documents.
Two scent lineups followed.
In the first, held two weeks after Burr's death, Pikett said his dogs found scents belonging to the Winfrey teenagers, but not their friends, on Burr's clothes. No charges were filed.
According to San Jacinto County Sheriff Lacy Rogers, the "big break" in the case came in 2006, when a man sharing a jail cell with Richard Winfrey Sr. (who had been arrested on an unrelated charge) told investigators that Winfrey had discussed intriguing details of Burr's murder.
Winfrey knew, for example, that Burr's back door was unlocked and that the body had been dragged between rooms. Court briefs do not indicate whether this was common knowledge, though the prosecution and defense acknowledge that Winfrey got some things wrong, too, including mutilation of Burr's body that did not occur.
He also told his cellmate that guns and a knife were stolen — news to investigators, who knew only that a Bible was missing from Burr's home.
Investigators found a relative who saw the guns in Burr's house a few months before the murder. And although the guns were never found, and the relative could not say for certain that the weapons were present the day Burr was murdered, Winfrey Sr. became a top suspect, court records show.
In March 2007, Winfrey Sr. was charged with capital murder, which carries the possibility of the death penalty. His children also were charged with capital murder.
Five months later, Pikett conducted a second scent lineup — this time with scent pads taken from Richard Winfrey Sr. According to Pikett, three of his dogs alerted to Winfrey's scent pad, indicating his odor was on the clothing in which Burr was murdered.
According to court documents, Pikett placed six cans about 10 steps apart, outdoors and on the ground, ensuring that any wind was blowing perpendicular to the line of cans so scents could not transfer.
Pikett testified that he generally follows the same protocol in his lineups. The gauze pad taken from a suspect is placed in one can, and the others are filled with scent pads — taken from several hundred Pikett carries with him — that match the suspect's race and gender. Pikett has his bloodhound smell a scent pad from the crime scene and then walks the leashed dog by the cans. The dogs will alert that they found a matching smell by turning, barking or some other method, and all dogs are rewarded whether or not they match a scent to eliminate incentives for false matches, he said.
In other cases, Pikett has testified that the people who place the pads into the cans do not need to wear gloves because they are already present and will be excluded by dogs looking for new smells to track.
There also is no need to sterilize the cans between lineups, he added, because the dogs are sniffing for specific odors from the crime scene pad and can distinguish between a large number of smells.
Both statements are disputed by forensic scientists and professional dog handlers who supplied affidavits to the court on Winfrey's behalf.
2 guilty, 1 innocent
The three Winfreys were tried separately, with vastly different results.
Richard Winfrey Sr. went first. Jurors found him guilty of murder, rejecting the capital murder charge that accused him of killing Burr during the commission of another crime — stealing his guns. He was sentenced to 75 years in prison after prosecutors introduced evidence of prior convictions for theft, burglary, cocaine possession and vehicular homicide after a passenger was killed in an car accident.
His daughter, Megan, was found guilty of capital murder.
But Richard Jr. was acquitted by jurors who deliberated only 13 minutes.
The only difference in the cases, according to defense lawyer Shirley Baccus-Lobel, was that Richard Jr. introduced evidence from a forensic scientist that attacked Pikett's training, scent lineup methods and conclusions.
Baccus-Lobel is representing the father in his appeal.
On Wednesday, she will ask the Court of Criminal Appeals to throw out his conviction as legally and factually insufficient based on the unreliability of Pikett's scent lineups.
"A finding that (Winfrey) murdered Murray Burr, despite the absence of even a scintilla of evidence to that effect, can only be explained by the so-called dog scent 'lineup' testimony ... particularly given Pikett's extraordinary assertion that his dogs were never wrong," Baccus-Lobel said in court briefs.
She also will ask the nine appellate judges to alter a lower-court opinion, known as Winston v. Texas, that allows judges to admit scent lineups under a less rigorous standard for testimony derived from "soft" sciences.
Baccus-Lobel will argue that scent lineups should have to satisfy hard-science standards that require experts to provide evidence that their scientific technique is valid, proven and properly applied to the case.
Prosecutor Burnett will argue for the soft-science standard, which evolved to allow for expertise in fields that are based on experience and training, not scientific method.
The Winston decision, Burnett argued in court briefs, acknowledged that 37 states allow evidence to be introduced from dogs that track suspects via scent. The decision, he said, recognized little difference between a scent lineup and a case where a dog tracked a suspect over an area traversed by many people.
"The court appeared to clearly recognize that both tasks involve the same ability of a canine to discriminate between multiple scents," Burnett wrote.
A decision in Winfrey v. Texas, case PD-0987-09, is not expected for months."
The story can be found at:
http://www.statesman.com/news/texas-politics/court-asked-to-weigh-dog-sniffing-lineups-548714.html?viewAsSinglePage=true
Harold Levy...hlevy15@gmail.com;
