CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

January 5, 2012

“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT

Filed under: Houston Criminal Lawyer — Tags: , , , — johntfloyd @ 5:31 pm

Defense Lawyers Need to Challenge Questionable Expert Testimony and Conclusions

By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair

In October 2010 we posted piece titled “Dog Witnesses Kicked Out of the Courtroom” concerning a capital murder case in San Jacinto County. The accused, all members of the same family—Richard Lynn Winfrey Sr. and his son, Richard Jr., and daughter, Megan—were arrested in 2006 for the brutal murder of Murray Wayne Burr, a longtime custodial worker at the high school attended by the Winfrey siblings. Local law enforcement officials considered Winfrey and his two children as “persons of interests” shortly after Burr was murdered in his home, even though DNA evidence found at scene excluded the Winfreys. The proverbial “break in the case” came in 2006 when Richard Sr., who was housed in the Montgomery County jail, told another inmate David Campbell that “some kind of gun and some kind of knife collection” had been taken from Burr’s home, as well as other details about the murder, including the victim’s body being dragged from one room to another. Campbell repeated this information to the authorities.

This new information spurred San Jacinto County investigators into action. Not deterred by the fact that the DNA evidence excluded the Winfreys, the police turned to what they believed was infallible science—the nose of specially trained dogs. They called in a renowned law enforcement bloodhound “expert” named Keith Pickett to conduct what is called a “dog scent lineup.” The lineup was conducted in 2007 at which time Pickett used three of his hounds: Quincy, James Bond, and Clue. Investigators provided Pickett with a scent sample from clothing worn by the victim on the night he was murdered and scent samples from six white males, including Richard Sr. 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 Richard Sr.’s scent sample and later “alerted” on Richard Jr. and Megan’s scent sample as well. All three were tried and convicted of murder.

In 2009 the Texas Court of Criminal Appeals, in Winfrey v. State, threw out Richard Sr.’s conviction, saying the dog “scent” identification was insufficient evidence upon which to base a criminal conviction. The Texas Tribune reported on December 4, 2011 that Richard Jr.’s conviction has also been thrown out. Both men have been released from prison. And the Court of Criminal Appeals will soon decide Megan’s fate, most likely with the same result reached in other two Winfrey cases. She is now into her third year of a life sentence.

On December 15, 2011 the Texas Tribune also reported that the Court of Criminal Appeals had remanded two death penalty cases (Steven Butler and John Matamoros) back to the trial courts for review of the evidence used to determine they were “intellectually competent” to stand trial.

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October 6, 2010

DOG WITNESSES KICKED OUT OF THE COURTROOM?

Filed under: Houston Criminal Lawyer — Tags: , , , , , — johntfloyd @ 5:22 am

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.

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July 29, 2010

CAMERON TODD WILLINGHAM: IMPROPER OR WRONGFUL CONVICTION?

Filed under: Federal Defense Attorney — Tags: , , , , , , — johntfloyd @ 1:09 pm

Texas Forensic Science Commission Concludes Flawed Science Used In Trial That Led To Conviction and Execution

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

It was December 1991 in Corsicana, Texas. Cameron Todd Willingham was alone in his residence with his three small children—Amber 2, and one-year-old twins, Karmon and Kameron. A fire broke out in the residence. Willingham managed to escape the fire. The three children did not, dying a horrible death trapped in the flames that quickly engulfed the residence. Willingham was immediately targeted as a suspect for arson murder. He was indicted on January 8, 1992. After turning down an opportunity to plead guilty for a life sentence, he was tried, convicted, and sentenced to death in August 1992. He was executed on February 17, 2004, angrily telling all those present that he was an innocent man. The political and media fallout from Willingham’s execution began before his remains were laid to rest. The case’s controversial history can be found on Billy Sinclair’s blog here, here, here, here, here, here, here, and here. But essentially Willingham was convicted and executed because state officials involved in the case—and with a lot of help from the condemned inmate himself—successfully portrayed him as a “monster” throughout the trial and execution process. The basis for this portrait was:

  • According to neighbors who witnessed the fire at the Willingham residence, he “crouched down” in his front yard and refused to make any effort to rescue his children from the fire despite repeated pleas by neighbors for him to do so. These statements, of course, influenced arson investigators at the scene of the fire to conclude Willingham must have had something to do with the fire.
  • When the fire blew out the windows of the house, Willingham reported hollered out concern about his car which was parked close to the residence. Witnesses said he jumped up, ran toward it, and moved it away from the house so it would not be damaged by the fire.
  • Willingham did not express any grief over the loss of his children at the fire scene or at the hospital after the fire.
  • Willingham reportedly expressed upset to firefighters at the scene that his dart board had been lost in the fire.
  • The morning after the fire, which was Christmas Eve, Willingham and his wife went to their burnt out house and were seen by neighbors laughing as they pored through the debris with loud music blaring from their nearby vehicle.
  • A neighbor testified that Willingham had once beaten his pregnant wife in an effort to induce an abortion, but his wife testified at the trial and disputed the neighbor’s claim by saying Willingham had never beaten her, much less when she was pregnant.
  • Another witness said he once saw Willingham slap his wife, but Willingham’s wife denied the incident ever happened.
  • Willingham reportedly bragged to a friend that he once brutally killed a dog.
  • Willingham reportedly told a “jailhouse snitch” that he killed his children to cover up evidence of abuse. Willingham’s wife, however, testified that her husband never abused the children.
  • Dr. James Grigson, a prosecution “expert,” testified at Willingham’s trial, telling the jury that Willingham was a violent sociopath who did not have a conscience and had no regard for other people’s property or for other human beings (even though there was nothing in Willingham’s criminal history to support this violent assessment).
  • In April 1986 Willingham was arrested for carrying a concealed weapon and public intoxication. He was sentenced to four days in the county jail, and ordered to pay a fine and court costs.
  • In May 1986 Willingham was arrested for second degree burglary. He was placed on probation and assigned to a Non-Violent Intermediate Offender Act.
  • In May 1986 Willingham was again arrested: this time for entering a building with unlawful intent and contributing to the delinquency of a minor (supplying paint to a 12-year-old to sniff). He was sentenced to 15 days in the county jail, ordered to pay restitution, and placed on probation for six months.
  • In November 1986 Willingham was arrested for contributing to the delinquency of a minor (supplying paint to a 12-year-old and an 11-year-old to sniff). He was sentenced to 60 days in the county jail.
  • In April 1987 Willingham was arrested for grand larceny. He was sentenced to 60 days in the county jail and placed on two years probation.
  • In November 1988 Willingham was arrested for driving under the influence of drugs (sniffing paint). He was sentenced to one year probation on the condition that he would check into an in-patient rehabilitation program for paint abuse.
  • In February 1989 Willingham was arrested for shoplifting. His probations for the previous 1987 grand larceny and 1988 DUI convictions were revoked and he was placed in a special boot camp program, given a 2-year sentence with all but 74 days suspended on the conditions that 1) he complete a substance abuse program, 2) attend AA once a week, and 3) undergo urinalysis every week and a half.

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June 9, 2010

HOUSTON LAW ENFORCEMENT FACES TOUGH TIMES

Filed under: Homicide Crimes Lawyer — Tags: , , , , , — johntfloyd @ 2:50 pm

Decreased Police Budget: Increased Unsolved Crime, Botched Investigations, Wrongful Arrests and Convictions

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Thomas Hargrove, Scripps Howard News Service, reported last month that 6,000 homicides go unsolved in this country each year. Hargrove said the number of “unsolved homicides” has risen at an alarming rate even though the nation’s homicide rate has decreased to levels last seen in the 1960s. Most of these unsolved homicides occur in dozens of the nation’s largest cities.

“This is very frightening,” Bill Hagmaier, Executive Director of the International Homicide Investigators Association, said of the Scripps Howard study which involved a detailed examination of crime records provided by the FBI.  “We’d expect that – with more police officers, more scientific tools like DNA analysis and more computerized records – we’d be clearing more homicides now.”

Network television shows like CSI and NCIS, which hail the so-called marvels of “forensic evidence,” have lulled Americans into thinking that crime fighting will surely catch the bad guys and put them away. Not so, and it is indeed “frightening” to realize that between 1980 and 2008 nearly 185,000 homicides in this country went unsolved. The Scripps Howard study reported “experts” as saying the traditional “crimes of passion” involving assailants who are quickly identified have been replaced with “drug-and-gang related” killings in areas where lack of witness cooperation is a major problem. The “don’t snitch” mentality.

Valencia Mohammed lives in Washington, D.C., an area with a significant number of unsolved homicides relating to drug/gang violence. “When my first son was killed,” she told Hargrove, “I was embarrassed and ashamed. Why did this happen to me? But when my second son died, I decided I’d had enough and wanted to be an advocate for murder victims.”

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January 29, 2010

MORE EVIDENCE OF BAD EVIDENCE – AGAIN

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 4:51 pm

Criminal Defense Attorneys Must Question Findings, Conclusions of Forensic Experts

By:  Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have posted a number of blogs about the “junk science” associated with forensic evidence—a science popularized by network television with drams like “CSI” and its spin-offs. It would indeed by an ideal world if all the evidence-gathering and analysis reflected in these TV programs reflected the real world of crime and criminal prosecutions. The reality is that while these shows may entertain their legion of loyal viewers, they do a tremendous disservice to our criminal justice system. http://www.newscientist.com They contribute to the popular acceptance among most jurors that “forensic evidence” is infallible when, in truth, the evidence analysis methodologies used in most of this science have never been validated and the end results have been tragic. According to the New York-based Innocence Project, nearly half of all the DNA exonerations in this country involved “false forensics,” not to mention the horrific way this flawed process undermines the integrity of our truth-seeking, albeit adversarial justice system.

For example, KCBD television in Lubbock recently reported that Paul Shrode, the city’s former Deputy Medical Examiner, lied on his resume to secure the position of Chief Medical Examiner in El Paso County. The Texas Medical Board has indicated it will investigate the complaint filed by an Austin documents analyst named David Fisher (who frequently works with criminal defense attorneys) against Shrode with the medical board concerning the “resume doctoring”.

The Paul Shrode revelation comes on the heels of a series of fine investigative reports by Fort Worth Star-Telegram investigative reporter Yamil Berard about statewide problems dealing with medical examiners and the flawed nature of their forensic work, particularly when it comes to autopsies performed by these “medical forensic experts.” After Tarrant County District Attorney Joe Shannon told the newspaper that his office relied upon the county’s medical examiners “a great deal,” Yamil pointed out the flawed nature of the evidence analysis methodology of medical examiners:

“ … even though medical examiners rule as to how people die, that is an opinion based on interpretation of available evidence. In some cases, critics say, justice may be trumped by outside influences and by speculation that goes beyond hard scientific evidence. There are even questions about how much ‘science’ is in forensic science. In a report to Congress [last] year, the National Academy of Sciences said that there is a dearth of studies establishing the scientific validity of many forensic methods and that invalid interpretation of forensic evidence is a serious problem.

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October 2, 2009

THE JUNK SCIENCE OF DOG SCENT LINEUPS

Filed under: Houston Criminal Lawyer — Tags: , , , , — johntfloyd @ 9:16 am

Popular Law Enforcement Dog Handler Discredited After False Results, Exaggerated Claims of Accuracy Exposed

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

We have blogged (False Forensics: An Attorney’s Worst Nightmare, May 1, 2009) in the past about the dangers of “false forensic” evidence being used in courtrooms to convict innocent people. The New York-based Innocence Project reported in 2007 that 65% of the nation’s first 200 DNA exonerations in this country involved fraudulent, unreliable or limited forensic science. Wrongful convictions based on false forensics—or what is commonly referred to as “junk science”—in the State of Texas occur with the same or at a greater frequency.

And what is “junk science?”

In an September 21, 2009 special report titled “Dog Scent Lineups: A Junk Science Injustice,” the Texas Innocence Project (TIP) provided the following illustrative definition: “Even before the television show ‘CSI’ became popular, juries and judges have tended to believe what ‘scientific experts’ say in criminal cases—especially if these ‘experts’ are police officers or prosecution witnesses. One study found that ‘about one quarter of jurors who were presented with scientific evidence believed that had such evidence been absent, they would have changed their verdicts—from guilty to not guilty.’ In the hands of a skilled prosecutor, scientific-sounding testimony from any source, no matter how fraudulent, can be played to great dramatic effect and win convictions.

“Prosecutors have taken full advantage of the gullibility of jurors and the willingness of courts to allow the use of these techniques. In case after case, prosecutors have used phony ‘experts’ with little or no training or education, false results from shoddy labs and dubious ‘theories’ with no basis in fact to get convictions. Taken together, these abusive practices have come to be known as the use of ‘junk science.’ The use of this ‘evidence’ is not limited to the courtroom: law enforcement agencies have come more and more to rely on it in making arrests and getting indictments.”

There is no greater “junk science” than “dog scent lineups” and the phoniest “expert” involved in this particular junk science is a Fort Bend County deputy sheriff named Keith Pikett. A native of New York, Pikett served six years in the Navy after he graduated from high school before taking a job at a ship yard in the early 1970s in Mobile, Alabama, according to TIP. He then graduated from the University of South Alabama with a chemistry degree and in 1984 received a master’s degree in “Sport Science” at an Alabama institution called United States Sports Academy. (more…)

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