The Texas Court of Criminal Appeals reversed a murder conviction based upon a dog scent lineup run by a former deputy sheriff. The opinion in Richard Lynn Winfrey v. State of Texas is in Adobe .pdf format. Judge Cochran wrote a concurring opinon.
"Texas court reverses conviction in dog scent case," is the AP report via Google News. It's written by Jeff Carlton. Here's an extended excerpt:
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."
Today's New York Times runs an excerpt of the AP filing as, "Texas: Bloodhounds’ Evidence Ruled Insufficient."
Chuck Lindell writes, "Appeals court frees man convicted of murder based on dog scent lineup," for today's Austin American-Statesman.
Wednesday's decision means prosecutors can continue to introduce scent lineups at trial, but only if the conclusions are supported by other, corroborating evidence.
The Court of Criminal Appeals declined to delve into the bigger question of whether dog scent lineups should be admissible in court at all. Because Winfrey's lawyer failed to object to the lineup at trial, the issue was not eligible for review by the appeals courts, a concurring opinion by four judges noted.
Instead, the court ruled 8-0 that prosecutors had failed to present any credible evidence, beyond the dogs' identification, tying Winfrey to the crime.
"I am so glad to know that they saw that poppycock stuff," said Shirley Baccus-Lobel , Winfrey's appeals lawyer. She said the Winfrey family was "deliriously happy" to hear the news.
On their own, scent lineups do not provide enough evidence to support a conviction beyond a reasonable doubt, said the opinion by Judge Barbara Hervey . Scent is easily transferred and is "not proof positive that (Winfrey) came in contact with the victim," she wrote.
Several other justices, during oral arguments in April, also noted that prosecutors could not prove that Winfrey's scent, even if present on the victim's clothing, was transferred during the crime.
"We acknowledge the invariable truth espoused by (U.S. Supreme Court) Justice (David) Souter that 'the infallible dog, however, is a creature of legal fiction,'\u2009" Hervey wrote. "We conclude that scent-discrimination lineups, when used alone or as primary evidence, are legally insufficient to support a conviction."
The unanimous opinion overturned a lower court that affirmed Winfrey's conviction in the murder of Murray Burr, who was badly beaten and stabbed 28 times in his home. No witnesses saw Winfrey at Burr's house. He did not match DNA, fingerprints, a bloody footprint or any of the 73 hairs taken from the crime scene. None of Burr's possessions were found with Winfrey, Hervey noted.
From 1993 to 2009, Pikett and his dogs conducted hundreds of scent lineups for about 20 Texas counties, the Texas Rangers, the state attorney general's office and federal agencies, court documents show. Pikett trained a half-dozen of his bloodhounds — sporting names such as Columbo, Quincy, James Bond and Clue — to conduct scent lineups using methods he created or learned from dog training seminars.
The Houston Chronicle reports, "Overturned Coldspring murder case muzzles canine lineups," by Mike Tolson.
Advocacy groups as well as other professional scent dog handlers have denounced Pikett and his dogs, which have proved useful in securing convictions in jurisdictions throughout the state over the last decade.
Last year the Innocence Project of Texas issued a scathing report on Pikett's work, calling it nothing more than "junk science." It cited cases in which Pikett's dogs found scent associations of suspects with crime scenes, only to have further investigation exonerate the suspect of any involvement. In some of those cases, the suspects were jailed and charged with the crime before being cleared.
Jeff Blackburn, chief counsel of the Innocence Project of Texas, hailed the ruling as a big step toward eliminating dog scent evidence from courtrooms, even if the court did not go that far.
"I think we've done a lot of damage — and this case does a lot more damage — to the use of this nonsense in Texas courts," Blackburn said. "I think this is a real opening. With the Court of Criminal Appeals, you have to measure progress in baby steps. Anyone looking to them for big changes in the criminal justice system is looking in the wrong place. But if you understand that, it's a real big step forward. At the very least, I think we have effectively put this guy out of business."