RICHARD WINFREY SR. VICTORIA ADVOCATE POINTS TO OTHER CIVIL CASES INVOLVING MEN JAILED ON DOG-SCENT "EVIDENCE" INCLUDING MICHAEL BUCHANEK CASE;

"Pikett is also named in a lawsuit filed in 2008 by Victoria lawyer Rex Easley, who represents former Victoria County Sheriff Capt. Michael Buchanek, 55.

Easley contends Pikett and others violated his client's Fourth Amendment rights. The suit alleges scent dogs led to an unlawful search and seizure of Buchanek's property, and that inaccurate information was provided to a magistrate to secure a search warrant.

Of Wednesday's ruling, Easley said people can sleep better knowing their Constitutional rights are recognized and protected.

"It's a really big deal," the attorney said. "It is important to have relevant and reliable evidence - instead of junk science.""

VICTORIA ADVOCATE STAFF AND ASSOCIATED PRESS;

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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. Winfrey is serving 75 years in prison. 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. No physical evidence tied Richard Winfrey Sr. to a brutal 2004 murder in East Texas. No witnesses placed him at the crime scene. 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. Winfrey's lawyers had asked Texas's highest criminal court to toss out the conviction, saying it's unsupported by reliable evidence. They also asked that lower courts be ordered to apply more rigorous scientific standards when prosecutors seek to introduce dog scent lineups.

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"DALLAS - The Texas Court of Criminal Appeals acquitted a man convicted of murder and who was imprisoned primarily because three bloodhounds allegedly matched his scent to the crime scene," the Victoria Advocate story published on September 22, 2010 begins, under the heading, "Court reverses conviction in dog scent case."

"The appeals court reversed the 2007 guilty verdict against Richard Winfrey Sr. on Wednesday, ruling such evidence is legally insufficient to convict," the story continues.

"The main evidence in the 2004 murder of Murray Burr was a positive scent identification from bloodhounds named Quincy, James Bond and Clue. The dogs belong to former Fort Bend Sheriff's Deputy Keith Pikett, who retired this year.

Pikett is a defendant in at least three lawsuits from men who say they were wrongly jailed after his dogs linked them to crimes they did not commit. He did not immediately return a message left by The Associated Press.

Pikett is also named in a lawsuit filed in 2008 by Victoria lawyer Rex Easley, who represents former Victoria County Sheriff Capt. Michael Buchanek, 55.

Easley contends Pikett and others violated his client's Fourth Amendment rights. The suit alleges scent dogs led to an unlawful search and seizure of Buchanek's property, and that inaccurate information was provided to a magistrate to secure a search warrant.

Of Wednesday's ruling, Easley said people can sleep better knowing their Constitutional rights are recognized and protected.

"It's a really big deal," the attorney said. "It is important to have relevant and reliable evidence - instead of junk science."

Victoria County District Attorney Steve Tyler applauded the ruling and Easley's work, which helped bring national attention to scent dog practices.

Easley helped to unearth patterns in similar cases and attract help from groups such as The Innocence Project, which works to exonerate wrongfully convicted people, the district attorney said.

"It improved our criminal justice system," Tyler said. "I think that's really important."

Additionally, former Victoria Advocate reporter Leslie Wilber first reported suspicions surrounding Pikett, his scent dogs and the techniques used to incriminate and convict suspects.

Her work also unearthed related patterns in other cases, and spurred spinoff coverage by some of the nation's biggest newspapers and magazines.

The State Bar of Texas recognized Wilber and the newspaper for this work during its 2010 Texas Gavel Awards.

Buchanek's lawsuit, meanwhile, goes to trial early next year. Will Wednesday's ruling help the case?

"I cannot comment," Easley said."

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The story can be found at:

http://www.victoriaadvocate.com/news/2010/sep/22/dogscent_identification_092310_112083/?news&police-courts

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

CAMERON TODD WILLINGHAM; MAJOR DEVELOPMENT; LAWYERS FOR HIS RELATIVES FILE LAWSUIT TO SECURE HIS POSTHUMOUS EXONERATION;

"The lawsuit was filed with state District Judge Charlie Baird, who last year issued the state’s first posthumous DNA exoneration in a rape case originally tried in Lubbock. Any hearing in the Willingham case would be equally extraordinary. Baird is a trial judge who previously had nothing to do with the Cole or Willingham cases."

REPORTERS STEVEN KREYTAK AND CHUCK LINDELL: THE STATESMAN;

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BACKGROUND: (Wikipedia); Cameron Todd Willingham (January 9, 1968 – February 17, 2004), born in Carter County, Oklahoma, was sentenced to death by the state of Texas for murdering his three daughters—two year old Amber Louise Kuykendall, and one year old twins Karmon Diane Willingham and Kameron Marie Willingham— by setting his house on fire. The fire occurred on December 23, 1991 in Corsicana, Texas. Lighter fluid was kept on the front porch of Willingham’s house as evidenced by a melted container found there. Some of this fluid may have entered the front doorway of the house carried along by fire hose water. It was alleged this fluid was deliberately poured to start the fire and that Willingham chose this entrance way so as to impede rescue attempts. The prosecution also used other arson theories that have since been brought into question. In addition to the arson evidence, a jailhouse informant claimed Willingham confessed that he set the fire to hide his wife's physical abuse of the girls, although the girls showed no other injuries besides those caused by the fire. Neighbors also testified that Willingham did not try hard enough to save his children. They allege he "crouched down" in his front yard and watched the house burn for a period of time without attempting to enter the home or go to neighbors for help or request they call firefighters. He claimed that he tried to go back into the house but it was "too hot". As firefighters arrived, however, he rushed towards the garage and pushed his car away from the burning building, requesting firefighters do the same rather than put out the fire. After the fire, Willingham showed no emotion at the death of his children and spent the next day sorting through the debris, laughing and playing music. He expressed anger after finding his dartboard burned in the fire. Firefighters and other witnesses were suspicious of how he reacted during and after the fire. Willingham was charged with murder on January 8, 1992. During his trial in August 1992, he was offered a life term in exchange for a guilty plea, which he turned down insisting he was innocent. After his conviction, he and his wife divorced. She later stated that she believed that Willingham was guilty. Prosecutors alleged this was part of a pattern of behavior intended to rid himself of his children. Willingham had a history of committing crimes, including burglary, grand larceny and car theft. There was also an incident when he beat his pregnant wife over the stomach with a telephone to induce a miscarriage. When asked if he had a final statement, Willingham said: "Yeah. The only statement I want to make is that I am an innocent man - convicted of a crime I did not commit. I have been persecuted for 12 years for something I did not do. From God's dust I came and to dust I will return - so the earth shall become my throne. I gotta go, road dog. I love you Gabby." However, his final words were directed at his ex-wife, Stacy Willingham. He turned to her and said "I hope you rot in hell, bitch" several times while attempting to extend his middle finger in an obscene gesture. His ex-wife did not show any reaction to this. He was executed by lethal injection on February 17, 2004. Subsequent to that date, persistent questions have been raised as to the accuracy of the forensic evidence used in the conviction, specifically, whether it can be proven that an accelerant (such as the lighter fluid mentioned above) was used to start the fatal fire. Fire investigator Gerald L. Hurst reviewed the case documents including the trial transcriptions and an hour-long videotape of the aftermath of the fire scene. Hurst said, "There's nothing to suggest to any reasonable arson investigator that this was an arson fire. It was just a fire. Legendary "Innocence" lawyer Barry Scheck asked participants at a conference of the National Association of Criminal Defence Lawyers held in Toronto in August, 2010, how Willingham, who had lost his family to the fire, must have felt to hear the horrific allegations made against him on the basis of the bogus evidence, "and nobody pays any attention to it as he gets executed." "It's the Dreyfus Affair, and you all know what that is," Scheck continued. "It's the Dreyfus AffaIr of the United States. Luke Power's music video "Texas Death Row Blues," can be found at:
http://smithforensic.blogspot.com/2010/09/cameron-todd-willingham-texas-death-row_02.html

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"Lawyers for relatives of Cameron Todd Willingham, executed for the 1991 arson murder of his three young daughters in Corsicana, on Friday petitioned a judge in Travis County to hear evidence and determine whether Willingham was wrongly convicted," the story begins under the heading, "Willingham lawyers ask for exoneration hearing in Travis County."

"The lawsuit was filed with state District Judge Charlie Baird, who last year issued the state’s first posthumous DNA exoneration in a rape case originally tried in Lubbock," the story continues.

"Any hearing in the Willingham case would be equally extraordinary. Baird is a trial judge who previously had nothing to do with the Cole or Willingham cases.

Willingham’s execution has caught national attention for the specter that Texas may have killed an innocent man. Several arson experts in recent years have rejected the science that the investigators who testified at Willingham’s trial used to determine that the fire that killed his daughters was intentionally set.

The Texas Forensic Science Commission began reviewing the Willingham case in 2006 but has not reached any conclusions. Williamson County District Attorney John Bradley, the chairman of that commission since last year, said that Baird does not have the legal authority to consider the Willingham case.

“I would say the political end for this one is to abolish the death penalty,” Bradley said.

Baird agreed to hear the Lubbock case, centered on the wrongful conviction of Timothy Cole, under a provision of the Texas Constitution that states that “All courts shall be open, and every person for an injury done him in his … reputation shall have remedy by due course of law.”

The Willingham lawsuit was filed in part under a similar legal claim. Also, the suit asks that Baird open a court of inquiry in the case to determine whether probable cause exists to charge unnamed Texas officials with official oppression. The suit claims that those officials committed that crime by failing to consider prior to Willingham’s execution the fact that he was convicted on discredited arson science.

“We are not looking or asking for anything other than a fair and impartial review of the facts and the law in this case,” said San Antonio lawyer Gerald Goldstein, who represents Willingham’s relatives along with former Texas Governor Mark White and Barry Scheck, co-founder of the Innocence Project.

Baird, at right, said he would review the filing and if he deemed it worthy he would hold an evidentiary hearing next month.

Willingham, above right, was convicted of murder in 1992 in the deaths of his children —1-year-old twins Karmon and Kameron and 2-year-old Amber — who died of smoke inhalation after a fire at the family’s house in Corsicana, about 55 miles northeast of Waco.

He maintained his innocence until his 2004 execution.

Willingham’s lawyers have claimed that local and state fire investigators relied on faulty scientific methods in concluding that the fire at Willingham’s house had been intentionally set.

They say those claims were first presented to officials in the office of Texas Gov. Rick Perry in the days before Willingham’s execution.

Since 2006, they have pursued their case with the Texas Forensic Science Commission, whose hired expert last year issued a report identifying numerous scientific shortcomings in the Willingham fire investigation,

At a meeting this month, members of the commission wrestled with the scope of their investigation into the case. Commission Chairman John Bradley, district attorney of Williamson County, had supported a draft report that said investigators of the Corsicana fire could not be held accountable for relying on arson indicators now known to be unreliable or misleading because they were following the best available practices of the time.

But some of the commission’s scientists said they wanted to look at other issues, including whether the state fire marshal’s office, which investigates fires statewide, had a duty to reopen cases once it realizes that earlier investigative practices had been “debunked” by scientific advancements.

The commission has agreed to convene a panel of fire experts at a November meeting.

The Willingham family lawyers wrote in the petition they filed with Baird on Friday that they want a clear determination of whether Willingham was wrongfully convicted and whether there is probable cause to believe that Texas laws have been violated by state officials in handling his case.

The lawsuit is 62-pages long, was filed with hundreds of pages of exhibits and indicates that copies have been delivered to Perry’s office, the State Fire Marshal’s Office, the Navarro County District Attorney’s office and the Office of the State Prosecuting Attorney, which represents the state in cases at the Court of Criminal Appeals.

It is unclear if officials in those offices would be made to participate in the inquiry or what a hearing in Baird’s court on the Willingham case would otherwise look. They could not be immediately reached for comment.

Goldstein declined to say whether he planned to seek to subpoena any officials if Baird agrees to hold a hearing.

The February 2009 hearing on the Cole case lasted two days and included testimony from Michele Mallin, the woman who Cole was convicted of raping. Baird also heard testimony from Jerry Johnson, a prison inmate serving a life term who said he was the one who raped Mallin and who was implicated in a later DNA test.

In addition, Baird heard from an expert on potential bias in the commission of photographic lineups, which he later blamed in part for the wrongful conviction.

Lawyers for the Innocence Project of Texas questioned the witnesses. No one cross-examined them. The Innocence Project represented Cole and Mallin, who supported Cole’s petition.

In the Willingham case, Corsicana officials stand by their investigation and conclusions and say they continue to believe he was guilty. Willingham’s trial defense lawyer also has said he believes his former client was guilty.

If Baird holds a hearing in October, it would come before the Texas gubernatorial election pitting Perry, a Republican, against Democratic challenger Bill White. Election Day is Nov. 2.

Willingham was executed during Perry’s tenure and Perry was accused of playing politics with the case last year when he replaced three members of the nine-member Texas Commission on Forensic Science, including the chairman, Austin defense lawyer Sam Bassett. The members, whose terms had expired, were replaced just days before the commission had been scheduled to hear the findings of the expert they had hired to evaluate the case. That presentation was postponed indefinitely.

Baird, who did not seek re-election to his 299th District Court bench, is a Democrat whose term expires at the end of the year."

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The story can be found at:

http://www.statesman.com/blogs/content/shared-gen/blogs/austin/courts/entries/2010/09/24/willingham_lawyers_ask_for_hea.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

RICHARD WINFREY SR: THE UNANIMOUS TEXAS COURT OF CRIMINAL APPEALS DECISION DIRECTING AN ACQUITTAL; DECISION PUBLISHED BY LEAGLE;

"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.

The judgment of the court of appeals is reversed, and a judgment of acquittal is entered."

TEXAS COURT OF CRIMINAL APPEALS: HERVEY J. FOR THE COURT: LEAGLE: Leagle, Inc. informs us that it is dedicated to making legal content and the knowledge contained therein more accessible and discoverable than ever before – anytime, anywhere, for anyone, through innovative, relevant web-based and mobile-media solutions."

PHOTO: FORMER DEPUTY KEITH PIKETT;

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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. Winfrey is serving 75 years in prison. 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. No physical evidence tied Richard Winfrey Sr. to a brutal 2004 murder in East Texas. No witnesses placed him at the crime scene. 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. Winfrey's lawyers had asked Texas's highest criminal court to toss out the conviction, saying it's unsupported by reliable evidence. They also asked that lower courts be ordered to apply more rigorous scientific standards when prosecutors seek to introduce dog scent lineups.

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PUBLISHER'S NOTE: As a rule I try to avoid publishing entire decisions on the Charles Smith Blog. However, the Texas Court of Criminal Appeals decision in the Winfrey case has such huge implications - not just Richard Winfrey but also the many other individuals in the United States who have been convicted on the basis of dog-scent "evidence - that an exception is warranted in this case. Read on!

HAROLD LEVY: PUBLISHER; THE CHARLES SMITH BLOG.

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"Charged with the capital murder of Murray Wayne Burr, appellant was convicted of the lesser offense of murder and sentenced to seventy-five years in prison. We reverse the court of appeals and render an acquittal," Hervey J's decision for the Court published on September 22, 2010 begins.

"I. Factual & Procedural Background: In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed twenty-eight times and had received multiple blunt-force injuries, including a broken right-eye orbit and a broken jaw," the decision continues.

"There was no evidence of forced entry into the victim's home. The evidence indicated that the victim was dragged from his living room to his bedroom where his body was found. Family members reported that the only item missing from the victim's home was a Bible.

Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members.[ 1 ] Appellant's children, Megan (then 16 years of age) and Richard Winfrey Jr. (then 17 years of age), became persons of interest in the murder investigation. Texas Rangers interviewed appellant approximately two weeks after the murder. Appellant was not considered a suspect at this time. During the interview, appellant stated that he had known the victim, that he had never been in the victim's house, that he had not seen the victim in four to five years, and that he assumed he was the number one suspect.[ 2 ]

In July 2006, the Sheriff's Department received new information about the Burr murder from David Campbell, an inmate in the Montgomery County Jail. Campbell testified at the trial that, while he was sharing a cell with appellant, appellant relayed information that he claimed to have heard about the murder; specifically, that "some kind of gun and some knife collection" were taken from the Burr residence. Appellant related other details to Campbell that he claimed to have heard about the murder, such as the victim's body being dragged from one room to another and the lack of forced entry. Appellant did not tell Campbell that he was involved in the murder.

To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff's office. Deputy Pikett testified about a "scent lineup" that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were "pre-scented" on the scent samples obtained from the victim's clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant's scent sample.[ 3 ]

Based on this, Deputy Pikett concluded that appellant's scent was on the victim's clothing. Deputy Pikett testified on cross-examination that an alert only establishes some relationship between the scent and objects and that scent detection does not necessarily indicate person-to-person contact.[ 4 ] Deputy Pikett also testified on cross-examination that his understanding of the law was that convicting a person solely on a dog scent is illegal.

Appellant complained on direct appeal that the evidence is legally and factually insufficient to support a conviction of murder. In its published opinion affirming the trial court, the court of appeals addressed the sufficiency of the evidence in a two-paragraph analysis. Concluding that the evidence was legally and factually sufficient, the court of appeals specifically found: (1) Deputy Pikett's canine-scent testimony provided direct evidence placing appellant in direct contact with Burr's clothing; (2) the jury could have reasonably concluded that appellant was in Burr's house at the time of the murder and that he had significant physical contact with Burr; (3) appellant shared information about the murder with Campbell that was not known, even by the police; and (4) appellant identified himself as the "number one suspect" in the murder at a time when the police did not consider him a suspect. Winfrey v. State, 291 S.W.3d 68, 75 (Tex.App.-Eastland 2009).

Pursuant to Rule 68 of the Texas Rules of Appellate Procedure, appellant timely filed a petition for discretionary review. We granted review to address the following grounds presented to this court:

(1) An important question implicating the administration of justice is presented by the Court of Appeals' reliance upon a dog scent lineup to sustain the legal sufficiency of the evidence without regard to the inherent limitations of such evidence.

(2) An important question implicating the administration of justice is also presented by the Court of Appeals' failure to properly evaluate the factual sufficiency of the evidence by addressing the inherent limitations of dog scent lineup evidence.

Appellant contends the evidence, when viewed in a neutral light, is factually insufficient to support a conviction of murder. He further contends that the evidence, even when viewed in the light most favorable to the verdict, is legally insufficient to support a conviction of murder. The State argues that the court of appeals applied the proper standards of review for legal and factual sufficiency and that a jury could have reasonably concluded that appellant murdered Murray Wayne Burr.
II. Standard of Review

We begin our analysis by addressing the question of legal sufficiency. When reviewing a case for legal sufficiency, we view all of the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Consequently, we "determine whether the necessary inferences are reasonable based upon the combined and cumulative force of all the evidence when viewed in the light most favorable to the verdict." Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007) (citing Hooper v. State, 214 S.W.3d 9, 16-17 (Tex. Crim. App. 2007)). It has been said, quite appropriately, that "[t]he appellate scales are supposed to be weighted in favor of upholding a trial court's judgment of conviction, and this weighting includes, for example, the highly deferential standard of review for legal-sufficiency claims." Haynes v. State, 273 S.W.3d 183, 195 (Tex. Crim. App. 2008) (Keller J., dissenting) (citingJackson v. Virginia, 443 U.S. at 319). We must therefore determine whether the evidence presented to the jury, viewed in the light most favorable to the verdict, proves beyond a reasonable doubt that appellant intentionally or knowingly caused the death of Murray Wayne Burr.
III. Analysis
A. Appellant's Statement to Authorities

During trial, Texas Ranger Grover Huff testified that he interviewed appellant in 2004 and that appellant indicated that he was the number one suspect.

Q. And did he indicate whether he had ever been in Murray Burr's home?

A. He stated that he had never been inside of Murray Burr's residence.

Q. Did he indicate whether he thought he was a suspect?

A. Yes.

Q. What did he indicate?

A. His statement to me was he was the number one suspect.

In closing arguments, the prosecution emphasized this statement as evidence of appellant's guilt.

I think defense counsel said in closing there is nothing to put Richard Lynn Winfrey, Sr., in that trailer. Nothing to put Megan Winfrey or Richard Winfrey, Jr. First of all, early in the investigation, when they were looking at Megan Winfrey and Richard Lynn Winfrey, Jr., Ranger Huff said he went and talked to Richard Sr. They were looking at the kids. Kind of interesting, what was Richard Lynn Winfrey, Sr.'s, words, "Well, I guess I'm the primary suspect here." He said he is the primary suspect at that point in time.

In its briefs to the court of appeals and to this Court, the State relies on appellant's statement as evidence of his guilt.[ 5 ] Indeed, in affirming appellant's conviction, the court of appeals relied on appellant's statement, concluding that "appellant identified himself as the `number one suspect' in the murder at a time when the police did not consider him a suspect." Winfrey, 291 S.W.3d at 75. This statement is not tantamount to an admission of guilt. At no time during the interview did appellant admit to any involvement. Nor did the police consider him a suspect, much less a primary one. The Texas Ranger who interviewed appellant placed little emphasis on the statement and acknowledged that even after the statement, appellant was not a suspect. In fact, he was not arrested until nearly three years later.
B. Cellmate

The court of appeals also found it significant that appellant "shared information about the murder with Campbell that was not even known by the police" and that "would only be known by the murderer or murderers." Winfrey, 291 S.W.3d at 74. According to the court of appeals, appellant "told Campbell that `some kind of a gun and some knife collection' had been taken from Burr's house."[ 6 ] id.

The evidence, however, is that appellant told Campbell that he heard that "some kind of a gun and some knife collection" were taken from the victim's home. That appellant stated that he had heard that a gun or knife collection was taken is a subtle, yet significant distinction. Appellant never told Campbell that he was involved in the murder. Campbell himself made it clear that his entire testimony was based on information that appellant had heard.

Q. [Defense] The things that you said that Mr. Winfrey told you while in Montgomery County jail was [sic] things that Mr. Winfrey told you that he had heard; is that correct?

A. [Campbell] Yes.

Q. [Defense] Things that he had heard, it had been two years since the death of Mr. Burr. And the things that Mr. Winfrey told you was [sic] things that he told you that he had heard?

A. [Campbell] Yes, that's what I said, hearsay.

* * *

Q. [State] When he told you about Murray being beaten and stabbed, no one in law enforcement had contacted you?

A. [Campbell] It was all hearsay what I heard from him, just hearsay.

Q. [State] And he told you about the penis,[ 7 ] nobody had talked to you about anything?

A. [Campbell] It is just hearsay from what he was going to be charged with.

Q. [State] And when he told you that somebody had let the actor in the house, nobody from law enforcement had talked too [sic] you about a murder at that time?

A. [Campbell] No sir, just hearsay directly from him.

The court of appeals found that appellant "told Campbell that `some kind of a gun and some knife collection' had been taken from Burr's house. Before Sheriff Rogers's interview of Campbell, the police had no information that guns had been taken from the house. Thus, appellant shared information about the murder with Campbell that was not even known by the police." Winfrey, 291 S.W.3d at 74. Appellant never admitted involvement in the murder and claimed only to have heard information about the crime not known to the police. Thus, it is possible that the information appellant heard could have come from the actual murderer or murderers.
C. Dog-Scent Lineup

At the request of the Texas Rangers, Deputy Keith Pikett performed the dog-scent lineup.[ 8 ] Deputy Pikett, a certified peace officer who specializes in canine handling, testified that he had been training bloodhounds since 1989. At trial, Deputy Pikett explained the scent lineup procedure:

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.

On August 22, 2007, a scent lineup was conducted, and appellant's scent was placed in paint can number four. Deputy Pikett had no knowledge where appellant's scent was placed. He used three bloodhounds during this scent lineup: James Bond, Quincy, and Clue. All three alerted to appellant's scent in paint can number four.

This however, is not proof positive that appellant came in contact with the victim. Even when viewed in the light most favorable to the verdict, the dog-scent lineup proves only that appellant's scent was on the victim's clothes, not that appellant had been in direct contact with the victim, as the court of appeals decided.

This important distinction is highlighted in the Federal Bureau of Investigation's publication, Forensic Science Communications, which explains that "[i]dentifying someone's scent at a crime scene is not an indication of complicity. It simply establishe[s] a direct or indirect relationship to the scene." Rex A. Stockham et al., Specialized Use of Human Scent in Criminal Investigations, 6 Forensic Sci. Comm. 3, 6 (2004). This sentiment was echoed in Deputy Pikett's testimony.

Q. [Defense Counsel] All it does is establish a scent relationship between the articles?

A. [Deputy Pikett] You mean between the person and the clothing?

Q. [Defense Counsel] The scent matches, yes.

A. [Deputy Pikett] Yes.

During his testimony, Deputy Pikett acknowledged, "It's possible to transfer scent. . . . If I shake hands with you, I can give you the scent on my hand." The ease of transferring scents is well documented and is also accepted by law enforcement agencies such as the FBI. Id. at 1 ("Because human scent is easily transferred from one person or object to another, it should not be used as primary evidence. However, when used in corroboration with other evidence, it has become a proven tool that can establish a connection to the crime.").

At oral argument, the State conceded that "dog scent alone is not enough [to convict the defendant]." Deputy Pikett also recognized the limitations of the scent lineup in his testimony when he stated that: "We never convict anybody solely on the dog. It is illegal in the State of Texas. . . . You cannot convict solely on the dog's testimony." However, the record indicates, and the State acknowledged, that the jury gave significant weight to the canine-scent evidence. The jury submitted a note asking, "Is it illegal to convict solely on the scent pad evidence?"[ 9 ] No eye witnesses put the appellant at the crime scene. The State was unable to match the appellant to the fingerprint or to any of the footprints found at the crime scene. The appellant did not match the DNA profile obtained from the crime scene. Criminologists microscopically compared seventy-three hairs recovered from the crime scene, yet none of the hairs were consistent with appellant's. None of the victim's belongings were found in appellant's possession. Not a Bible, a gun, or a knife collection. Winfrey, 291 S.W.3d at 72 ("In summary, none of the items tested at the DPS crime laboratories tied appellant to the murder scene.").

The Jackson v. Virginia legal-sufficiency standard requires the reviewing court to view the evidence in the light most favorable to the verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson, 443 U.S. at 319. At most, the evidence here shows: (1) appellant indicated that he believed he was the number one suspect in a murder investigation; (2) appellant shared information with Campbell that appellant claimed to have heard about the murder; and (3) appellant's scent was on the victim's clothes. It is the obligation and responsibility of appellate courts "to ensure that the evidence presented actually supports a conclusion that the defendant committed the crime that was charged." Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App. 2007). Furthermore, "[i]f the evidence at trial raises only a suspicion of guilt, even a strong one, then that evidence is insufficient [to convict]." Urbano v. State, 837 S.W.2d 114, 116 (Tex. Crim. App. 1992), superseded in part on other grounds, Herrin v. State, 125 S.W.3d 436, 443 (Tex. Crim. App. 2002). Based on our review of this record, we find that the evidence, even when viewed in the light most favorable to the verdict, merely raises a suspicion of guilt and is legally insufficient to support a conviction of murder beyond a reasonable doubt. Because we find the evidence legally insufficient, we need not address appellant's factual-sufficiency claim.

We note, however, that the science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have been employed for detecting narcotics and explosives, for tracking trails, in search-and-rescue operations, for locating cadavers, and for discriminating between scents for identification purposes. In thousands of cases, canines and their handlers have performed with distinction. Despite this success, we acknowledge the invariable truth espoused by Justice Souter that "[t]he infallible dog, however, is a creature of legal fiction." Illinois v. Caballes, 543 U.S. 405, 411 (2005) (Souter J., dissenting).

This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, "there is little distinction between a scent lineup and a situation where a dog is required to track an individual's scent over an area traversed by multiple persons." Winston v. State, 78 S.W.3d 522, 527 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd) (citing Roberts v. State, 469 A.2d 442, 447-48 (Md. Ct. App. 1983)). Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking. Ramos v. State, 496 So. 2d 121, 123 (Fla. 1986) ("[I]t is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.").

Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence.People v. Cruz, 643 N.E.2d 636, 662 (Ill. 1994); Brafford v. State, 516 N.E.2d 45, 49 (Ind. 1987); State v. Storm, 238 P.2d 1161, 1181-82 (Mont. 1952); Brott v. State, 97 N.W. 593, 594 (Neb. 1903). Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held that dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. Carter v. Mississippi, 64 So. 215, 215 (Miss. 1913). And as recently as 1983, the Supreme Court of Washington agreed. State v. Loucks, 656 P.2d 480, 483 (Wash. 1983). In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction. State v. Taylor, 395 A.2d 505, 507 (N.H. 1978); State v. Cheatham, 458 S.W.2d 336, 339 (Mo. 1970); State v. Green, 26 So. 2d 487, 489 (La. 1946); Buck v. State, 138 P.2d 115, 123 (Okla. Crim. App. 1943); Copley v. State, 281 S.W. 460, 461 (Tenn. 1926).

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. "Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups." Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L.J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that "[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence." Loucks, 656 P.2d at 482. To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive.

The State argues in its brief:

During the videotaped canine scent lineup on August 22, 2007, all the dogs made positive hits on [appellant's] scent pads, indicating that [appellant] had been in contact with the clothes [the victim] was wearing at the time of his death.[ 10 ] This is significant because in the earlier interview with [appellant] in 2004, he indicated that he had NEVER been in [the victim's] home and had not seen [the victim] in five years.

An effort was made by defense counsel to advance a theory of "transferred scent" or "casual contact" to explain how [appellant's] scent would be on the clothes the victim had on at the time of death. Keith Pikett testified that the scent is essentially from skin cells sloughed off by the provider of the skin cells.[ 11 ] Pikett testified that, based on the scent lineups, [appellant's daughter, appellant's son and appellant] had left their scent on the clothes the victim was wearing at the time of his death. Following cross-examination, Pikett also indicated that a boyfriend and girlfriend would have significant contact with each other, more than with family members. But none of the dogs hit on Christopher Hammond's scent pads. In that regard the jury could certainly draw the inference that if [appellant's daughter's] boyfriend at the time of the murder was Christopher Hammond, then under the transferred scent or casual contact theory, it would be MORE likely that if she touched [the victim's] clothes, Hammond's scent rather than her father, [appellant's] scent would have been transferred.

(Emphasis in original and record reference omitted).

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.

The judgment of the court of appeals is reversed, and a judgment of acquittal is entered. Burks v. United States, 437 U.S. 1, 18, (1978) (holding if the record evidence is legally insufficient under the Jackson rule, the reviewing court must render a judgment of acquittal).

COCHRAN, J., filed a concurring opinion, in which WOMACK, JOHNSON and HOLCOMB, JJ., joined.

Appellant did not object at trial to Deputy Pikett's "dog scent line-up" testimony. Therefore, neither the court of appeals nor this Court has had an occasion to review or determine the admissibility of that evidence under either Kelly v. State[ 12 ] or Nenno v. State.[ 13 ] But, as the majority holds, even if Deputy Pikett's testimony concerning the "dog scent line-up" was properly admissible under Rule 702, the evidence is still legally insufficient to support appellant's conviction.

With that understanding, I join the majority opinion.
1. According to appellant's discretionary-review petition: 1) appellant and both his children (Megan and Richard Jr.) were indicted for the capital murder of Murray Wayne Burr, 2) Megan was convicted of capital murder and conspiracy and her appeal is currently pending, and 3) Richard Jr. was acquitted of capital murder and conspiracy.
2. The videotaped interview was not included in the appellate record, although the Texas Ranger who interviewed appellant discussed the conversation in his testimony.
3. An "alert" occurs when the canine matches the scent from the victim's scent pad to the suspect's scent pad. A similar "scent lineup" was conducted in August 2004 on scent samples from appellant's children with two dogs, Quincy and Jag. Both of these dogs alerted on the children's scent samples.
4. The State seems to claim that Pikett testified that the results of the dog-scent lineup established direct contact between appellant and the victim's clothes at the time of the victim's death. We do not so read Pikett's testimony. Pikett testified on direct examination:

Q. [State] Now, based on the results of that final scent lineup, do you believe that the scent of [appellant] is on the scent on the clothing of [the victim]?

A. [Pikett] Yes.

Pikett testified on cross-examination:

Q. [Defense Counsel] All it does is that it establishes a relationship, does it not?

A. [Pikett] It puts that person in contact with something.

Q. It puts the person in contact with something, not necessarily person-to-person, does it?

A. No. Without knowing the specifics of anything, no, you can't say that.

Q If I come up and I shake your hand, am I going to get some of your skin cells?

A. Yes.

Q. Now, if I come over here and grab [one of the prosecutors] on the arm, have your skin cells transferred to him?

A. Yes.

Q. Did you touch him?

A. No.

* * *

Q. Again, an alert by a dog is nothing but to establish some sort of a relationship between the scents and the objects, would you agree?

A. Yes.

On redirect examination, Pikett testified:

Q. [State] So that's essentially what you've been testifying to all along, physical contact?

[Defense] I object to that, Your Honor, physical contact made between objects, if you would clarify that.

Q. [State] Physical contact where someone else leaves their scent on someone else through physical contact.

A. Yes.

* * *

Q. And that's what we're talking about, significant physical contact.

A. Yes.

Q. And that's all your dogs are looking for; is that correct?

A. Yes.

On recross-examination, Pikett testified:

Q. All it does is establish a scent relationship between the articles.

A. You mean between the person and the clothing?

Q. The scent matches, yes.

A. Yes.

5. In its brief to the court of appeals, the State argued that "Richard Winfrey Sr. indicated to Texas Ranger Grover Huff that he was the primary suspect early in the investigation when Huff was focusing on Winfrey's children." In its brief to this Court, the State argues "Coupled with the statements made during the interview with Ranger Huff, when Petitioner stated he had never been in the Burr home and had not seen Burr in five years, and at the same time stated he was the `number one suspect,' the jury, as trier of fact, could certainly attach a great weight to the canine scent evidence in light of Petitioner's contradictory statements."
6. In the summer of 2006, the Sheriff's Department interviewed Jessie Oates, the victim's brother-in-law. Oates informed the Sheriff's department that the victim owned a rifle and a shot-gun, which the victim showed to him about six months before the murder. Oates did not know if these guns were in the victim's home when he was murdered. Neither of these guns nor a knife collection was ever recovered. It is questionable whether the evidence would support a finding that these guns were taken from the victim's house at the time of the murder. We will, however, assume that, viewed in the light most favorable to the verdict, the evidence supports a finding that "some kind of a gun and some knife collection" were taken from the victim's home.
7. Appellant also told Campbell that he had heard that the victim's penis had been mutilated, a statement that was inaccurate.
8. A scent lineup is a forensic tool where dogs use their enhanced sense of smell to match scents. Using a gauze pad, scent exemplars are obtained from the crime scene or from an object found at the crime scene, as well as from a suspect. The gauze pad with the suspect's scent is then placed in a "lineup" with several other scents. Before doing the lineup, the dog sniffs the gauze pad from the crime scene. The dog then walks the lineup and alerts if it recognizes any of the scents.
9. In a written response, the trial court replied, "I can only refer you to the instructions in the charge."
10. We do not read the phrase, "indicating that [appellant] had been in contact with the clothes [the victim] was wearing at the time of his death," as necessarily meaning that appellant had direct contact with the victim's clothes at the time of the victim's death. Consistent with Pikett's testimony, we understand this phrase to mean that appellant's scent was on the victim's clothes at the time of the victim's death.
11. Pikett testified that "human beings lose probably conservatively 15 million skin cells a day" and "that's what the dog is smelling." Pikett also testified that the dog is trained to smell human skin cells but that he did not know what "ingredient" the dog is smelling. The State argued during closing jury arguments that it could not tell the jury "the mechanics of how the dogs do what they do, but they sure do it."
1. 824 S.W.2d 568 (Tex. Crim. App. 1992) (setting out standards for the admissibility of scientific expert testimony under Tex. R. Evid. 702).
2. 970 S.W.2d 549 (Tex. Crim. App. 1998) (setting out standards for the admissibility of non-scientific expert testimony under Tex. R. Evid. 702)."

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The decision can be found at:

http://www.leagle.com/unsecure/page.htm?shortname=intxco20100922571

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

RICHARD WINFRY SR: OUTSTANDING NEWS FOR THOSE CONCERNED ABOUT THE USE OF SHODDY SCIENCE IN CRIMINAL COURTROOMS; GRITS FOR BREAKFAST;

"Outstanding news for those concerned about the use of shoddy forensics in criminal courtrooms: As of today, dog-scent lineups are no longer adequate to secure a criminal conviction in Texas."

GRITS FOR BREAKFAST; GRITS FOR BREAKFAST: "Grits for Breakfast says it "looks at the Texas criminal justice system, with a little politics and whatever else suits the author's (Jeff Blackburn) fancy thrown in. All opinions are my own. The facts belong to everybody." Its motto: "Welcome to Texas justice: You might beat the rap, but you won't beat the ride."


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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. Winfrey is serving 75 years in prison. 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. No physical evidence tied Richard Winfrey Sr. to a brutal 2004 murder in East Texas. No witnesses placed him at the crime scene. 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. Winfrey's lawyers had asked Texas's highest criminal court to toss out the conviction, saying it's unsupported by reliable evidence. They also asked that lower courts be ordered to apply more rigorous scientific standards when prosecutors seek to introduce dog scent lineups.

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"Outstanding news for those concerned about the use of shoddy forensics in criminal courtrooms: As of today, dog-scent lineups are no longer adequate to secure a criminal conviction in Texas," the Grits for Breakfast post published on September 22, 2010 begins, under the heading, "Dog scent lineups discredited at TX Court of Criminal Appeals."

"In a move that long-time court-watchers may find shocking, the Texas Court of Criminal Appeals today reversed a murder conviction which had resulted in a 75-year sentence and ordered the defendants acquittal based on the unreliability of dog-scent lineups by Deputy Keith Pikett from Fort Bend County, whose bizarre and unreliable practices are well-known to long-time readers of this blog," the story continues.

(See initial coverage from AP and the Austin Statesman);

"Richard Winfrey, Sr. was was represented on appeal by Dallas attorney Shirley Baccus-Lobel (who in the interest of full disclosure happens to be a boardmember at one of my former employers, the Innocence Project of Texas). The ruling was unanimous, with the exception of Judge Meyers who did not participate in deliberations.

The entire case against Winfrey was based on two pieces of particularly shoddy evidence: A dog-scent lineup and a jailhouse snitch. (See the court's opinion, authored by Judge Barbara Hervey.) However the attorney at trial had not challenged the scent lineups, Baccus-Lobel emphasized when I spoke to her this afternoon, so the CCA could only rule on the legal sufficiency of the evidence, which they found inadequate. Here's how Judge Hervey described the case:

In August 2004, Murray Wayne Burr was found murdered in his home. Evidence at trial indicated that the victim had been stabbed twenty-eight times and had received multiple blunt-force injuries, including a broken right-eye orbit and a broken jaw. There was no evidence of forced entry into the victim's home. The evidence indicated that the victim was dragged from his living room to his bedroom where his body was found. Family members reported that the only item missing from the victim's home was a Bible.

Investigators collected a variety of forensic evidence from the crime scene including: a partial bloody fingerprint, a bloody shoe print, and several hair samples. Neither the prints nor the hair samples matched appellant. Investigators were able to obtain a DNA profile from evidence at the crime scene, however, the profile excluded appellant and his family members. (1) Appellant's children, Megan (then 16 years of age) and Richard Winfrey Jr. (then 17 years of age), became persons of interest in the murder investigation. Texas Rangers interviewed appellant approximately two weeks after the murder. Appellant was not considered a suspect at this time.

Then in 2006 a jailhouse informant came forward to claim Winfrey, Sr. had told him information he had "heard" about the murder, most of which turned out to be false. The informant said Winfrey Sr. told him a gun and knife collection had been stolen (the victim's family said only a Bible was missing) and that Burr's penis had been mutilated (untrue). At this point:

To assist in the investigation, Texas Ranger Grover Huff contacted Deputy Keith Pikett, a dog handler with the Fort Bend County Sheriff's office. Deputy Pikett testified about a "scent lineup" that he conducted nearly three years after the murder in August 2007. He used his three bloodhounds, Quincy, James Bond, and Clue. This involved obtaining scent samples from clothing that the victim was wearing at the time of his death and from six white males, including appellant. The dogs were "pre-scented" on the scent samples obtained from the victim's clothing. The dogs then walked a line of paint cans containing the scent samples of the six white males. All three dogs alerted on the can containing appellant's scent sample.

Based on this, Deputy Pikett concluded that appellant's scent was on the victim's clothing.

That was enough for the jury, who convicted Winfrey and sentenced him to 75 years. Winfrey's son, Richard Jr., was also accused but was acquitted at trial. However, Winfrey's daughter, Megan, who was 16-years old when the murder occurred and knew the victim, who worked at the school she attended, was certified to stand trial as an adult and convicted of capital murder and conspiracy to commit murder based on essentially similar evidence. She received a life sentence on the capital murder and 45 years on the conspiracy charge. Her direct appeal is presently pending, according to her lawyer Scott Pawgan, who told me he plans to file a supplemental brief in the wake of her father's acquittal. So it's possible this may not be the last reversed conviction stemming from this case before all is said and done.

Deputy Pikett, whose magic dogs provided the main testimony (Woof woof!) against Winfrey, retired earlier this year after the Innocence Project of Texas published a highly critical report (pdf) about his dog-scent lineup practices, revealing among other things that he'd exaggerated his professional credentials in the precedent-setting court case that established his dogs' testimony as admissible forensics. Judge Cathy Cochran wrote a short concurrence emphasizing that the Court could not consider the admissibility of the dogs' testimony because it hadn't been challenged at trial, but this ruling sets the stage for them to do so in the future when the appropriate case finally reaches them. Judge Hervey's ruling already will substantially limit scent-lineups use in the future, as evidenced in this notable excerpt:

We note, however, that the science underlying canine-scent lineups has been questioned; thus, we think it proper to briefly address the issue. Law-enforcement personnel have long utilized canines in crime management. For example, dogs have been employed for detecting narcotics and explosives, for tracking trails, in search-and-rescue operations, for locating cadavers, and for discriminating between scents for identification purposes. In thousands of cases, canines and their handlers have performed with distinction. Despite this success, we acknowledge the invariable truth espoused by Justice Souter that "[t]he infallible dog, however, is a creature of legal fiction."

This case pertains to canines used to discriminate among human scents in order to identify a specific person in a lineup. This process is often referred to as human-scent discrimination. Some courts, including the Fourteenth Court of Appeals, have determined that for purposes of admissibility, "there is little distinction between a scent lineup and a situation where a dog is required to track an individual's scent over an area traversed by multiple persons." Other courts, such as the Supreme Court of Florida, have distinguished scent lineups from dog tracking. ("[I]t is important to recognize that using a dog to track a human or to detect the presence of drugs or explosives is distinctive from using a dog to directly identify a specific human from items in a lineup.").

Cases involving the use of dogs, usually bloodhounds, to track humans are abundant and the law is well settled in regards to admissibility of such evidence with only a minority of courts outright rejecting bloodhound evidence. Fewer courts have addressed the question of whether dog evidence is sufficient to sustain a conviction when it is the only evidence. However, as early as 1913, our colleagues at the Supreme Court of Mississippi held that dog tracking evidence, alone and unsupported, to be insufficient to affirm a conviction. And as recently as 1983, the Supreme Court of Washington agreed. In fact, our research suggests the courts that have passed on this issue have concluded that dog-scent evidence, when admissible, is insufficient, standing alone, to sustain a conviction.

Like our sister courts across the country, we now hold that scent-discrimination lineups, whether conducted with individuals or inanimate objects, to be separate and distinct from dog-scent tracking evidence. "Even the briefest review of the scientific principles underlying dog scenting reveals that, contrary to the conclusions of many courts, there are significant scientific differences among the various uses of scenting: tracking, narcotics detection, and scent lineups." Andrew E. Taslitz, Does the Cold Nose Know? The Unscientific Myth of Dog Scenting, 42 Hastings L.J. 15, 42 (1990) (explaining that drug detection canines need only determine whether a specific scent is present. Tracking dogs, on the other hand, have the benefit of using both vegetative scents and human scent, while canines performing scent lineups must find one specific scent among many competing, similar scents). The FBI agrees, noting that tracking canines use human scent and environmental cues to locate the track of an individual. Allison M. Curran, et al., Analysis of the Uniqueness and Persistence of Human Scent, 7 Forensic Sci. Comm. 2 (2005). Accordingly, we conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction. Like the Supreme Court of Washington, we believe that "[t]he dangers inherent in the use of dog tracking evidence can only be alleviated by the presence of corroborating evidence." To the extent that lower-court opinions suggest otherwise, we overrule them and expressly hold that when inculpatory evidence is obtained from a dog-scent lineup, its role in the court room is merely supportive. (Legal citations omitted.)

IPOT's Chief Staff Attorney Natalie Roetzel wrote this afternoon in an email, "Needless to say, we are very excited about this development today. We have a good handful of dog-scent lineup cases in the hopper, and we are optimistic that there may be some more exoneration stories in the works."

Congrats to Baccus-Lobel and Mr. Winfrey, and for that matter to the Court of Criminal Appeals for taking what's for them a highly unusual step. Now what's needed is for somebody, somehow, by some means, to vet other old cases involving Deputy Dawg Pikett's so-called forensics. It's a virtual certainty these aren't the only cases where Pikett offered the main or only evidence on which Texas prosecutors obtained convictions."

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The story can be found at:

http://gritsforbreakfast.blogspot.com/2010/09/dog-scent-lineups-discredited-at-tx.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

RICHARD WINFREY SR. MAJOR DEVELOPMENT; TEXAS COURT OF APPEAL ACQUITS HIM; CONVICTED OF MURDER ON DOG SCENT "EVIDENCE" OF FORMER DEPUTY KEITH PIKETT;

"The main evidence in the 2004 murder of Murray Burr was a positive scent identification from three bloodhounds named Quincy, James Bond and Clue. The dogs belong to former Fort Bend Sheriff's Deputy Keith Pikett, who retired this year.

Pikett is a defendant in at least three lawsuits from men saying they were wrongly jailed after his dogs linked them to crimes they did not commit..........

FROM EXTENDED AP STORY: (BELOW);

"Jeff Blackburn, the chief counsel for the Innocence Project of Texas, has led the charge against dog scent identification and other types of "junk science" in Texas. He said he believes there are dozens of innocent people behind bars statewide because of similar dog scent cases.

"This puts out a strong message from the court about junk science in this state," Blackburn said. "This is really the first time the court has rejected the use of this junk.""

REPORTER JEFF CARLTON: THE ASSOCIATED PRESS;

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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. Winfrey is serving 75 years in prison. 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. No physical evidence tied Richard Winfrey Sr. to a brutal 2004 murder in East Texas. No witnesses placed him at the crime scene. 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. Winfrey's lawyers had asked Texas's highest criminal court to toss out the conviction, saying it's unsupported by reliable evidence. They also asked that lower courts be ordered to apply more rigorous scientific standards when prosecutors seek to introduce dog scent lineups.

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"DALLAS (AP) — The Texas Court of Criminal Appeals has acquitted a convicted murderer imprisoned primarily because a trio of bloodhounds allegedly matched his scent to the crime scene," Associated Press reporter Jeff Carlton reported earlier today under the heading, "Texas appeals court acquits convicted murderer who was sent to prison on dog scent evidence."

"The appeals court reversed the 2007 guilty verdict against Richard Winfrey Sr. on Wednesday, ruling the evidence was legally insufficient to convict," the story continues.

"The main evidence in the 2004 murder of Murray Burr was a positive scent identification from three bloodhounds named Quincy, James Bond and Clue. The dogs belong to former Fort Bend Sheriff's Deputy Keith Pikett, who retired this year.

Pikett is a defendant in at least three lawsuits from men saying they were wrongly jailed after his dogs linked them to crimes they did not commit. He did not immediately return a message left by The Associated Press."

The story can be found at:

http://www.39online.com/lifestyle/sns-ap-tx--dogscentidentification,0,7129017.story

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EXTENDED AP STORY:

Texas court reverses conviction in dog scent case

By JEFF CARLTON
ASSOCIATED PRESS WRITER

DALLAS -- A man convicted of murder after three bloodhounds allegedly matched his scent to the victim should be set free because the evidence against him was not legally sufficient, the Texas Court of Criminal Appeals ruled Wednesday.

The court acquitted Richard Winfrey Sr., reversing his 2007 conviction in the murder of high school janitor Murray Burr in the small town of Coldspring, about 60 miles north of Houston.

Under the ruling, prosecutors will not be allowed to retry the case.

Winfrey remained in state prison Wednesday. His attorney, Shirley Baccus-Lobel, said she planned to immediately file a motion for his release with the state appeals court. It is possible he could be freed by Friday, his 57th birthday.

"We thank God first and then Shirley second," said Vicky Winfrey-Daffern, the defendant's sister. "We are so overjoyed. Everybody's turning flips."

The main evidence against Winfrey in the 2004 murder was a positive scent identification from three bloodhounds named Quincy, James Bond and Clue. The dogs belong to former Fort Bend Sheriff's Deputy Keith Pikett, who retired earlier this year after being targeted by the Innocence Project of Texas, a group that claims the ex-lawman passes off junk science as legitimate investigative techniques.

Pikett is a defendant in at least three lawsuits from men saying they were wrongly jailed after his dogs linked them to crimes they did not commit. He did not return a message left by The Associated Press.

Trained dogs are routinely at border checkpoints and airports to smell for drugs, bombs or other contraband. They're used by search and rescue teams and in other police work, such as to chase suspects.

In Winfrey's case and other Texas cases, however, Pikett's bloodhounds use a "scent lineup" to link defendants to crimes.

Three years after Burr's death, Pikett's dogs sniffed clothing worn by the murder victim when he was killed. Authorities then took scent swabs from six individuals and placed them in separate coffee cans. The dogs alerted Pikett when they sniffed the coffee can containing a swab taken from Winfrey, the deputy testified.

The appeals court ruled that "scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction."

No eyewitnesses put Winfrey at the crime scene, and fingerprints, footprints and hairs were not a match to the defendant, according to court records. The scent ID was the primary evidence in the case.

"It cannot be denied that the jury and the court of appeals found the dog-scent lineup evidence in this case to be compelling," the appeals court wrote in its opinion.

"Hallelujah," said Baccus-Lobel, Winfrey's attorney, who praised the court for doing the "right thing."

The district attorney of San Jacinto County pointed out that Winfrey told police that he thought he was their top suspect at a time when authorities did not consider him one. A jailhouse snitch also testified that Winfrey told him about certain details of the crime, according to court records. The appeals court, however, did not find those points sufficient to uphold the conviction.

The DA, Bill Burnett, died earlier this year. The county's acting DA, Jonathan Petix, did not return a message left by the AP.

Jeff Blackburn, the chief counsel for the Innocence Project of Texas, has led the charge against dog scent identification and other types of "junk science" in Texas. He said he believes there are dozens of innocent people behind bars statewide because of similar dog scent cases.

"This puts out a strong message from the court about junk science in this state," Blackburn said. "This is really the first time the court has rejected the use of this junk."

Also prosecuted in the murder were Winfrey's children. His son, Richard Jr., was acquitted in 13 minutes. His daughter Megan, who was 16 at the time of the killing, was convicted of capital murder and conspiracy to commit capital murder and sentenced to life in prison.

Her appellate attorney, Scott Pawgan, said the ruling in the elder Winfrey's case could help free Megan Winfrey. Pikett's dogs also matched Megan's scent to the clothing word by Burr.

"I think this is voodoo science at its worst," Pawgan said. "It's scary that juries will rely on it to convict people."

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

SHAKEN-BABY SYNDROME: STATES SHOULD REVIEW ALL CONVICTIONS AS IS CURRENTLY UNDER WAY IN ONTARIO; DEBORAH TUERKHEIMER; OP-ED NEW YORK TIMES;

"What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.

In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States." (Publisher's note: Ms. Tuerkheimer is referring to the Goudge Inquiry which reviewed many case of the disgraced pathologist Dr. Charles Randal Smith.")

DEBORAH TUERKHEIMER; OP-ED; NEW YORK TIMES; Deborah Tuerkheimer, a professor of law at DePaul University, is a former assistant district attorney in Manhattan."

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Background: The inquiry focused largely on the flawed work of Dr. Smith — formerly the province's chief pediatric pathologist and a self-styled member of the prosecution team — whose "errors" led to innocent people being branded as child murderers. The 1,000-page report by Justice Stephen Goudge slammed Dr. Smith, along with Ontario's former chief coroner and his deputy, for their roles in wrongful prosecutions and asked the province to consider compensation. The provincial coroner's office found evidence of errors in 20 of 45 autopsies Dr. Smith did over a 10-year period starting in the early 1990s. Thirteen resulted in criminal charges. William Mullins-Johnson, who was among those cases, spent 12 years in prison for the rape and murder of his four-year-old niece, whose death was later attributed to natural causes. In another case, Dr. Smith concluded a mother had stabbed her seven-year-old girl to death when it turned out to have been a dog mauling. Several of the cases involved the harm caused to innocent persons because of Smith's use of the so-called "shaken-child syndrome" to ground a finding of criminality. The inquiry heard that Dr. Smith's failings included hanging on to crucial evidence, "losing" evidence which showed his opinion was wrong and may have assisted the accused person, misstating evidence, chronic tardiness, and the catastrophic misinterpretation of findings. The cases, along with other heart-rending stories of wrongful prosecutions based in part on Smith's testimony, also raised a host of issues about the pathology system and the reliance of the courts on expert evidence."

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"A WOMAN calls 911 to report that a baby in her care has gone limp. Rescue workers respond immediately, but the infant dies that night," the New York Times Op-Ed piece by Deborah Tuerkheimer published on September 20, 2010 under the heading, "Anatomy of a Misdiagnosis," begins.

"Though there are no external injuries or witnesses to any abuse, a jury convicts the woman of shaking the baby to death," the Op-Ed piece continues.

"More than 1,000 babies a year in the United States are given a diagnosis of shaken baby syndrome. And since the early 1990s, many hundreds of people — mothers, fathers and babysitters — have been imprisoned on suspicion of murder by shaking. The diagnosis is so rooted in the public consciousness that, this year, the Senate unanimously declared the third week of April “National Shaken Baby Syndrome Awareness Week.”

Yet experts are questioning the scientific basis for shaken baby syndrome. Increasingly, it appears that a good number of the people charged with and convicted of homicide may be innocent.

For the past 30 years, doctors have diagnosed the syndrome on the basis of three key symptoms known as the “triad”: retinal hemorrhages, bleeding around the brain and brain swelling. The presence of these three signs (and sometimes just one or two of them) has long been assumed to establish beyond a reasonable doubt that the person who was last taking care of the baby shook him so forcefully as to fatally injure his brain.

But closer scrutiny of the body of research that is said to support the diagnosis of shaken baby syndrome has revealed methodological shortcomings. Scientists are now willing to accept that the symptoms once equated with shaking can be caused in other ways. Indeed, studies of infants’ brains using magnetic resonance imaging have revealed that triad symptoms sometimes exist in infants who have not suffered injuries caused by abuse. Bleeding in the brain can have many causes, including a fall, an infection, an illness like sickle-cell anemia or birth trauma.

What’s more, doctors have learned that in many cases in which infants have triad symptoms, there can be a lag of hours or even days between the time of the injury and the point when the baby loses consciousness. This contradicts the idea that it’s possible to identify the person responsible by looking to the baby’s most recent caregiver.

Last year, the American Academy of Pediatrics recommended that the diagnosis of shaken baby syndrome be discarded and replaced with “abusive head trauma,” which does not imply that only shaking could have caused the injury.

The new understanding of this diagnosis has only just begun to penetrate the legal realm. In 2008, a Wisconsin appeals court recognized that “a shift in mainstream medical opinion” had eroded the medical basis of shaken baby syndrome. The court granted a new trial to Audrey Edmunds, herself a mother of three, who had spent a decade in prison for murdering an infant in her care. Prosecutors later dismissed all charges.

Troublingly, though, Ms. Edmunds’s case has been a rare exception. Most shaken baby convictions have yet to be revisited. New cases are still being prosecuted based on the outdated science.

Despite the shift in scientific consensus, debate about the legitimacy of the shaken baby syndrome diagnosis continues. Some scientists point to studies using dummies modeled on the anatomy of infants as evidence that shaking cannot possibly generate sufficient force to cause the triad of symptoms — or that it could not do so without also causing injury to the infant’s neck or spinal cord. But others challenge the validity of these studies and maintain the belief that shaking alone can (though it need not) cause the triad.

What’s needed is a comprehensive study of shaken baby syndrome to resolve the outstanding areas of disagreement. The National Academy of Sciences, which last year issued a comprehensive report on the scientific underpinnings of forensic science, would be the ideal institution to undertake such a study.

In the meantime, however, there remains the question of justice. In Ontario, an official investigation concluded that there are deep concerns about the science underlying the triad, and now the province is reviewing all convictions based on shaken baby syndrome. Similar inquiries should be conducted on a statewide level here in the United States.

For decades, shaken baby syndrome has been, in essence, a medical diagnosis of murder. But going forward, prosecutors, judges and juries should exercise greater skepticism. The triad of symptoms alone cannot prove beyond a reasonable doubt that an infant has been fatally shaken."

The Op-Ed piece can be found at:

http://www.nytimes.com/2010/09/21/opinion/21tuerkheimer.html

PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://www.blogger.com/post-edit.g?blogID=120008354894645705&postID=8369513443994476774

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;

SHARON KELLER; HER LAWYER SEEKS AN OUTRIGHT DISMISSAL - AS OPPOSED TO A NEW TRIAL; RULING EXPECTED BY OCTOBER 8, 2010; PLUS COMMENTARY: GRITS;

"Chip Babcock, Keller's lawyer, argued that the commission exceeded its authority in issuing the rebuke in the form of a "public warning." Under Texas law and the state constitution, the commission could issue the harsher punishment of censure, but not a warning, he said.

"Your only choice is what we're asking — dismiss this. Do not force Judge Keller to go through a new trial," Babcock said during the hearing at the Texas Supreme Court near the Capitol.

But the three judges, chosen at random to sit on the review panel, steered Babcock into a discussion about ways to reclassify the rebuke to conform to state law or the constitution.

"Is it just a (correctable) error?" asked Justice Elsa Alcala of the 1st Court of Appeals in Houston."

REPORTER CHUCK LINDELL: THE AMERICAN STATESMAN;

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BACKGROUND: Justice Sharon Keller has attained notoriety for allegations that she allowed convicted murderer and rapist Michael Richard to be executed on September 25, 2007 - notwithstanding his attempt to file a stay of execution - because the court clerk's office closes at 5. Keller is of particular interest blog because of the opinion she wrote for the majority in the Roy Criner case. Wikipedia informs us that: "Sharon Faye Keller (born in Dallas, Texas, 1953) is the Presiding Judge of the Texas Court of Criminal Appeals, which is the highest court for all criminal matters in the State of Texas. Because of her position, she has been involved in many high-profile and controversial cases, and has thus received widespread news coverage......In 1998, Keller she wrote the majority opinion in a 5-3 (one judge abstaining) decision that denied a new trial to Roy Criner. Criner had been convicted of sexual assault in 1990, but newly-available DNA testing had shown that the semen found in the victim was not his......Judge Tom Price, who ran for the Chief Judge seat, in a primary election, said that Keller's Criner opinion had made the court a "national laughingstock." Judge Mansfield, who had sided with the majority in denying Criner a hearing, told the Chicago Tribune that, after watching the Frontline documentary, reviewing briefs and considering the case at some length, he voted "the wrong way" and would change his vote if he could. "Judges, like anyone else, can make mistakes ... I hope I get a chance to fix it." He stated that he hoped Criner's lawyers filed a new appeal as he felt Criner deserved a get a new trial......Following the (appeal court's) refusal to order a new trial, the cigarette butt found at the scene (and not adduced at trial) was subjected to DNA testing.The DNA on the cigarette was not a match for Criner, but it was a match for the semen found in Ogg. Ogg's DNA was also found on the cigarette, indicating that she shared a cigarette with the person who had sex with her (and who presumably killed her). These results convinced the district attorney, local sheriff and the trial judge that Criner was not guilty. The Texas Board of Pardons and Paroles recommended he be pardoned and, citing "credible new evidence [that] raises substantial doubt about [Criner's] guilt," then-Governor George W. Bush pardoned him in 2000.

The thorough, unabridged Wikipedia article on Keller can be found at:

http://en.wikipedia.org/wiki/Sharon_Keller

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"A special court of review plans to decide by Oct. 8 whether to dismiss a judicial ethics panel's rebuke of Judge Sharon Keller or move forward with her appeal," the American-Statesman story by reporter Chuck Lindell published on Monday September 20, 2010 under the heading , "Panel to decide on Keller rebuke by Oct. 8: Judge's lawyer says appeals process is unfair to her. Sharon Keller; Judge asked panel to toss out rebuke from state commission," begins.

"Keller appeared before the special court's three-judge panel Monday to push for dismissal now, avoiding a three-day trial at the end of November over the rebuke from the State Commission on Judicial Conduct," the story continues.

"The commission, which investigates misconduct allegations against Texas judges, ruled in July that Keller violated her judicial duties by closing the Texas Court of Criminal Appeals at 5 p.m. despite knowing that lawyers wanted to file an appeal in an imminent execution in 2007.

Chip Babcock, Keller's lawyer, argued that the commission exceeded its authority in issuing the rebuke in the form of a "public warning." Under Texas law and the state constitution, the commission could issue the harsher punishment of censure, but not a warning, he said.

"Your only choice is what we're asking — dismiss this. Do not force Judge Keller to go through a new trial," Babcock said during the hearing at the Texas Supreme Court near the Capitol.

But the three judges, chosen at random to sit on the review panel, steered Babcock into a discussion about ways to reclassify the rebuke to conform to state law or the constitution.

"Is it just a (correctable) error?" asked Justice Elsa Alcala of the 1st Court of Appeals in Houston.

Justice Charles Kreger of the 9th Court of Appeals in Beaumont pointed out that the commission noted that its warning was a "condemnation" of Keller's conduct in the appeal of Michael Richard, who was executed for the 1986 rape and murder of a Hockley woman.

"Doesn't that sound like a denunciation ... that can be construed as a censure?" Kreger asked.

Babcock gained more traction with a different argument — that the process for appealing the public warning is absurd and unfair to Keller.

Had the commission done its job properly and issued a censure, Babcock said, the three-judge panel would hear brief oral arguments and review the record of a trial held last year in San Antonio. But a warning is appealed only by holding a completely new trial — a needlessly expensive and time-wasting process, he said.

Alcala said she was sympathetic to the argument.

"We hear all the same evidence?" Alcala said. "You have to pay the lawyers' expenses; the citizens pay another fact-finder. It doesn't sound fair, and it doesn't feel fair."

But Mike McKetta, an Austin lawyer representing the commission, said the Legislature set up the process "for good or bad," adding that Keller's right to appeal the warning is protected by the arrangement.

If the special court denies Keller's motion to dismiss, a hearing will be set for Nov. 29 through Dec. 1. The court's order would specify whether it will hold an all-new trial or review the record from previous proceedings."

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The story can be found at:

http://www.statesman.com/news/texas-politics/panel-to-decide-on-keller-rebuke-by-oct-927620.html

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KELLER'S APPEAL: A COMMENTARY: GRITS FOR BREAKFAST;

"Monday, September 20, 2010;

Keller appeal marked by byzantine legal debates;

This afternoon I attended Sharon Keller's appellate hearing mentioned earlier today on Grits, and I must say I don't envy the three justices charged with deciding the obscure, narrow legal issues before them. The legal arguments were so byzantine nobody seemed to completely grok how all the different rules and statutes worked together, and it seemed to me the simplest solution might be for the court to remand the case back to the State Commission on Judicial Conduct for the equivalent of re-sentencing.

The hearing was lightly attended - just 21 people in the audience that I counted, including myself and three reporters (at least who I could identify). Quite a few of the others in attendance were employees of the attorneys working the case or the SCJC, plus a handful of anti-death penalty activists who'd been protesting with placards outside before the hearing began.

The justices shut down fairly quickly Keller's attorney Chip Babcock's efforts to reassess the merits of the case (he accused attorney David Dow of "lying" several times and declared at one point, "This is all a media creation based on a series of lies"). Instead the discussion mostly focused on whether the State Commission on Judicial Conduct improperly imposed an excessively lenient sentence on Judge Keller - giving her a "public warning" instead of subjecting her to "censure," which would have forbade her from sitting as a visiting judge after leaving office.

At the hearing before the Commission on Judicial Conduct earlier this year, it was Keller's attorney whose arguments suffered from "bad facts." Today it was the SCJC's attorney Mike McKetta who was more on the defensive, trying to explain why the Commission failed to follow its own written procedures distributed to judges about how such cases are handled and why SCJC Executive Director Seanna Willing had made public statements that seemed to support Keller's arguments about the proper range of punishments. See these prior Grits posts for more on that controversy:

* Texas Supreme Court to review 'lawless' leniency for Keller by Judicial Conduct Commission
* Special treatment for Keller may create 'bad law' around judicial misconduct
* More backstory on Keller public warning
* Three options in Keller case for Judicial Conduct Commission

The debate was confusing and confused even for the principals and the three jurists, mainly because the portions of the Government Code and the Supreme Court rules governing the process clearly never countenanced this situation. In some instances they plainly contradicted one another or used the same terms in different ways, particularly the word "sanction." (I stopped in at the Senate Criminal Justice Committee offices after the hearing to suggest they review the record from the proceedings and consider updating the Government Code to account for the inconsistencies identified this afternoon.)

McKetta made a somewhat persuasive argument that the broader array of punishment choices were justified. The portion of the Constitution Keller cited, he pointed out, listed censure or a recommendation for removal as the only possible outcomes, though everyone acknowledged that "dismissal" was also an option, which in fact was the outcome the Judge was pushing for. McKetta cited other examples where the Texas Constitution used the word "or" in that way - not to say definitively either-or but in a more de-limited fashion. But in this writer's non-lawyerly view, Keller's arguments were more persuasive that the leniency given her by the Commission in light of the damning findings of fact was probably improper.

Which brings us to the question: What now? Keller's attorney argued that the justices should simply dismiss all charges and that the Commission's ruling was "void" because they'd overstepped their authority. But two of the three justices expressed reservations on that score. Justice Elsa Alcala pointedly asked Babcock what they should do if they found the Commission's decision was "erroneous" but not "void." He insisted only the latter result was acceptable, and I found myself wishing they'd asked the same question of Mr. McKetta. I asked him myself after the hearing, but he refused to comment, adding, "You're asking the right question, though."

It's hard to guess the next move. The judges could outright dismiss the charges as "void," affirm the Commission's strange, "lawless" leniency and move forward with the appeal, or potentially (an outcome that wasn't discussed but which wouldn't surprise me) kick the case back down to the Commission with an order to pick a punishment from the three, constitutionally approved options.

To their credit, it didn't appear from the questioning that the justices involved came to the table with any preconceived notions about the outcome, which one certainly couldn't say for Special Master David Berchelmann who presided over the original fact finding in Keller's case. But these would be hard questions for anyone to answer. As I said, I don't envy them their task and I certainly didn't leave the room feeling as though there was an obviously "correct" decision I could easily identify. Quien sabe? We'll know soon enough, I suppose."

The commentary can be found at:

http://gritsforbreakfast.blogspot.com/2010/09/this-afternoon-i-attended-sharon.html

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PUBLISHER'S NOTE: The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be accessed at:

http://www.thestar.com/topic/charlessmith

For a breakdown of some of the cases, issues and controversies this Blog is currently following, please turn to:

http://smithforensic.blogspot.com/2010/08/new-feature-cases-issues-and_15.html

Harold Levy: Publisher; The Charles Smith Blog; hlevy15@gmail.com;