Winfrey v. State: Evidence of Dog Scent Line-Up Identification, Standing Alone, Legally Insufficient to Support Conviction
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.
The San Deigo Police Foundation reports that police dogs work 8 ½ years before being retired and it costs $8500 to replace a retired canine. Dogs serve a legitimate purpose in crime prevention: their sense of smell is nearly 50 times stronger than humans and they can search an area 10 times quicker than a human. Dogs have a long history in law enforcement. For example, bloodhounds were used as early as the 18th century in Europe to track criminals. Germany and Belgium became the first European countries to formalize training of dogs in police work, mostly guard duty. German sheperds served Third Reich well in World War II and returning American soldiers brought this information home with them from the front lines. Following the lead of London and other large European police departments, major American city police departments also began to establish K-9 units in the 1970s, consisting mostly of German sheperds, in their crime-fighting duties.
But there’s a major difference between the use of dogs by police on the street to track or search and prosecutors using them as witnesses in a courtroom, “testifying” through their surrogate handlers. Some Texas prosecutors are strong supporters in what has become known as “dog scent evidence.” One of the most notorious dog scent evidence “experts” is a Fort Bend County Sheriff’s deputy named Keith Pikett who has used his array of dogs to identify criminal suspects in “dog scent” lineups and later testified in courts about the “positive” identifications made by his dogs.
The Texas Court of Criminal Appeals in a recent decision, Winfrey v. State, effectively kicked Pikett’s hounds out of the courtroom.
There is no doubt that Murray Wayne Burr died a horrible death in 2004. He was stabbed 28 times and received multiple blunt force blows so strong that they broke his jaw and right eye socket. The police found Burr’s body in the bedroom although the evidence indicated he had been attacked in the living room. They found no forced entry into his San Jacinto County home. The only thing missing from Burr’s home was a Bible.
Investigators secured they crime scene. They found a bloody fingerprint, a bloody shoe print, and several hair samples. With this forensic evidence, investigators were able to put together a DNA profile of the killer.
In July 2006, a couple years after the killing, investigators received information from an informant named David Campbell who was in the Montgomery County jail. Campbell claimed that his cellmate, Richard Lynn Winfrey, told him that “some kind of gun and some kind of knife collection” had been taken from Burr’s home. Winfrey also reportedly told Campbell about details he had of the murder, including the victim’s body being dragged from one room to another. Winfrey did not tell Campbell he had committed the murder.
This information intrigued investigators because Winfrey and his two children, a16-year-old daughter and a 17-year-old son, had been “persons of interest” early in the investigation. Investigators interviewed Winfrey several weeks after the murder. Winfrey told investigators that while he had known Burr for several years, he had never been inside the victim’s home. None of the forensic evidence matched Winfrey (or his children), and the eventual DNA profile excluded him and his children.
It was at this point that investigators turned to Deputy Pikett and his dogs for help. They asked him to conduct a “dog scent” lineup some three years after the murder. This was in August 2007. Pikett decided to use three of his bloodhounds: Quincy, James Bond, and Clue. Investigators provided Pikett with a scent sample from clothing worn by the victim on the night he was murdered and scent samples from six white males, including Winfrey. All three dogs were “pre-scented” with the scent from the victim’s clothing. The dogs were then paraded past six paint cans containing the scent samples of the six white males. All three dogs “alerted” on the paint can containing Winfrey’s scent sample.
Based on the positive “bloodhound” scent identification, Winfrey and his two children were indicted for capital murder. The prosecution used Pikett as its chief witness who testified that Winfrey’s scent was on the victim’s clothing worn at the time of his death, although he stated on cross-examination the dogs’ positive alert did not “necessarily indicate person-to-person contact.” Pikett’s testimony was essentially the state’s entire case against Winfrey. Prosecutors tried to bolster Pikett’s testimony by calling one of the investigators who testified that during the initial interview with Winfrey several weeks after the murder, Winfrey made a statement to the effect that he was probably the “number one suspect” in Burr’s murder. The prosecution also called Campbell who testified about what Winfrey had reportedly him during their jailhouse conversation.
Until its recent reversal, the conviction of Richard Lynn Winfrey stood as an embarrassment to the Texas criminal justice system. What actually is dog scent evidence? The Federal Bureau of Investigation’s publication, Forensic Science Communication, defines it as “[i]dentifying someone’s scent at a crime scene [which] is not an indication of complicity. It establishe[s] a direct or indirect relationship to the scene.” Even Deputy Pikett testified that the dog scent identification of Winfrey proved only that Winfrey’s scent “was on the victim’s clothes, not that [Winfrey] had been in direct contact with the victim.”
Despite this readily available and well-known evidence, the San Jacinto County District Attorney’s Office erroneously concluded the very opposite: that the dog scent identification was evidence that Winfrey at some point had had direct contact with Burr on the date of his death. The District Attorney filed capital murder charges against Winfrey and his two children. Even the jury was somewhat skeptical. They sent a note to District Court Judge David Wilson which asked: “Is it illegal to convict solely on the scent pad evidence?” Obviously Winfrey’s jurors listened to Deputy Pikett’s testimony 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.”
But apparently Judge Wilson was not convinced. He allowed the jurors to consider the case under the erroneous impression that they could infer “direct contact” between Winfrey and the victim based solely on the dogs’ “testimony.” Otherwise, there was absolutely no evidence connecting Winfrey to the crime. The jury convicted Winfrey and Judge Wilson sentenced him to 75 years in prison in December 2007. And even more incomprehensibly a three judge panel of the Texas Court of Appeals, Eastland, eighteen months later ruled that the identification of Winfrey by Deputy Pikett’s dogs placed Winfrey in direct contact with the victim’s clothing. The Eastland appeal court was following the lead of the 14th Texas Court of Appeals in its 2002 decision in the case Marcus Omar Winston which held that “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.”
Clearly, the Texas Courts of Appeals were not keeping track of expanding case law concerning dog scent evidence. The U.S. Supreme Court in 2005 in Illinois v. Caballes held that “[t]he infallible dog … is a creature of legal fiction.” Two decades earlier the Florida Supreme Court in Ramos v. State held that “[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.” In recent years at least three state supreme courts, Illinois, Montana, and Indiana, have ruled dog scent identifications unconstitutional while two others have concluded that, standing alone, dog scent evidence is insufficient to sustain a conviction: New Hamsphire and Missouri.
The Texas Court of Criminal Appeals finally elected to follow the lead of the other states’ courts, saying: “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 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.”
Although we are disappointed the Court gave dog-scent lineup evidence any role in our court system, the reversal of Mr. Winfrey’s case and his court ordered acquittal is enough to cause a criminal defense attorney to want run to the highest mountain and shout, “hallelujah!” We can only hope that Mr. Winfrey’s daughter, Megan, who was also convicted of capital murder and conspiracy with this flimsy evidence will see her case reviewed and reverse immediately.
It’s tragic that so many lower court judges and prosecutors and law enforcement officials swore a blind allegiance to such an overwhelmingly discredited forensic science involved in dog scent lineups. We commend the Court of Criminal Appeals for its first step toward removing this “witchcraft” kind of evidence from Texas court rooms. It will truly prevent innocent criminal defendants from being wrongfully convicted—a practice the State of Texas has the unfortunate distinction of leading the nation.
We love Lassie and Old Yeller, but they have no business identifying criminal suspects with their noses and testifying in court rooms through their handlers. Period. The End.
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair.