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.


The prosecution used a highly questionable analysis from Dr. George Denkowski, a career “expert” used by state prosecutors in 14 other death penalty cases to conduct “intellectual disability evaluations”—in all of which he determined the accused were not mentally retarded and capable of understanding the proceedings against them. Two of those condemned inmates have since been executed.  And therein is the tragedy inherent in “junk science,” popularized by such television crime dramas as NCIS and CSI.


Last April the Texas State Board of Examiners of Psychologists (TSBEP) reprimanded Denkowski for his widely criticized retardation evaluation methods. Denkowski was fined $5500 and agreed not to conduct any more “intellectual disability evaluations,” all the while defending his methods and refusing to admit to any wrongdoing. The Texas Tribune had this to say about Denkowski:


“Prosecutors regularly relied on Denkowski to perform psychological evaluations to determine whether a murder suspect would be eligible for execution. But n 2009, other psychologists and defense lawyers complained to the TSBEP that Denkowski used unscientific methods that artificially inflated intelligence scores to make defendants eligible for the death penalty.


“In his 2006 evaluation of Steven Butler, who was convicted in the shooting death of a store clerk, Denkowski rejected other IQ test scores that indicated Butler was well below average intelligence. He discounted behavioral evaluations from Butler’s family and friends, who said Butler couldn’t understand the rules of basketball, had to have others read menus for him and that he had failed basic classes.


“The U.S. 5th Circuit Court of Appeals stayed Butler’s execution pending the outcome of the complaint against Denkowski. And on Wednesday, the Texas Court of Criminal Appeals said it was acting on its own initiative to remand the case to the trial court in Harris County and ‘allow it the opportunity to re-evaluate its initial findings and conclusions, and recommendations in light of the Denkowski Settlement Agreement.’


“The U.S. 5th Circuit Court of Appeals had also stayed the execution of Matamoros, who was convicted in 1992 of stabbing to death a 70-year-old Houston man. As in the Butler case, the criminal appeals court said it was taking initiative to send the case back for re-evaluation based on the psychologists reprimand.”


Kathryn Kase, interim executive director of the Texas Defender Services, which provides legal assistance to condemned inmates, told the Texas Tribune: “What we’re seeing is a growing awareness on the part of the Court of Criminal Appeals for scientific integrity in criminal cases. The evidence of retardation in both these cases is pretty compelling.” Case added that she hoped the appeals court would remand the other death penalty cases Denkowski testified in. “Exonerations, I think, have caused the court to become concerned about the integrity of forensic evidence,” she added to the Tribune


“That’s really, really important here, where the decision about whether someone has retardation is a matter of life and death.”


While we applauded the Court of Criminal Appeals for its “dog scent lineup” repudiation and its concern about Denkowski’s flawed “expert” testimony, the Duane Buck case causes to stop short fully endorsing Ms. Kase’s assessment that there is a “growing awareness” by the court for “scientific integrity in criminal cases.” Buck was convicted in Harris County in 1997 for the 1995 double murder of his girlfriend and her companion. During his capital murder trial, Buck’s trial attorney called a psychologist named Walter Quijano to testify during the punishment phase of the trial. During cross-examination of the psychologist, prosecutors elicited testimony from Quijano that because Buck is black, he posed a greater risk of “future dangerousness” in the prison setting—testimony which obviously contributed to the jury’s decision to return the death penalty.


Current Texas Republican Senator John Cornyn was the state’s attorney general in 2000 who, following an intensive review, found Buck’s case was one of six in which Quijano had introduced race into jury deliberations. Cornyn opined that all six condemned inmates were entitled to a new punishment hearing. Hearings were granted in five of those cases by federal and state courts, resulting in all five being re-sentenced to death with one being executed. However, Buck stands alone in not receiving a new punishment hearing from either federal or state courts. He barely escaped execution this past September when the U.S. Supreme Court issued a stay just hours before the lethal cocktails of drugs was about to be administered.


A couple days before Buck’s scheduled execution, and just after the Texas Board of Pardons and Paroles had refused to issue a reprieve, Katherine Black, one of the condemned inmate’s attorneys, told the Houston Chronicle that the board of pardons “fails to recognize what the highest legal officer in the state of Texas had acknowledged: No one should be executed based on a process tainted by considerations of race … The decision as to whether Mr. Buck’s execution will go forward now lies squarely with Governor Perry, who has the power to issue a 30-day reprieve, and District Attorney (Pat) Lykos, who has the power to ask for a withdrawal of the execution date.”


It would seem that DA Lykos would have requested a withdrawal of Buck’s execution date, especially since one of her office’s former prosecutors, Linda Geffin, who was involved in Buck’s prosecution, had informed the board of pardons that Buck’s case was tainted by impermissible race considerations. However, Assistant District Attorney Lynn Hardaway told the Chronicle at the time that Lykos would not ask that Buck’s execution date be withdrawn. This decision made despite the fact that the newspaper editorialized against the execution until a new punishment hearing could be conducted. The Chronicle called Buck’s death sentence a “tainted judgment.”


It is shocking to say the least that the Court of Criminal Appeals, as well as the Fifth Circuit Court of Appeals, were quite prepared to allow Buck’s execution after Cornyn and prosecutor Geffin had called for the execution to be halted and a new punishment hearing held. Little wonder that the New York Times on December 24, 2011 waded in on the use of “junk science” in Texas courtrooms like that presented by Dr. Quijano. The Times piece, written by Brandi Grissom, opened with this frank assessment of “junk science” in criminal courtrooms:


“Undigested bits of mushrooms and tomatoes from Christine Morton’s last meal – a celebratory birthday dinner she had with her husband – were still in her stomach when the medical examiner performed his autopsy in 1986.


“Those remnants, the prosecutor told the jury during Michael Morton’s trial, ‘scientifically proved’ that Mr. Morton had beaten his wife to death.


“Twenty-five years later, DNA science revealed that someone else had actually killed Mrs. Morton and that her husband’s murder conviction and more than two decades in prison were a tragic mistake. His exoneration based on DNA evidence is the 45th in Texas, alone.


“Before he dismissed the wrongful murder charges against Mr. Morton last week, Judge [Sid] Harle recounted the faults the case exposed in the Texas Criminal justice system. Among them: the use of so-called junk science in the courtroom.


“’The courts and sitting judges need to be ever mindful about their role as gatekeeper in regard to the admission of science,’ Mr. Harle said. ‘Your case illustrates the best and the worst of what can happen.’


“Despite scientific advancements like DNA testing, the use of unreliable scientific techniques in the criminal justice system persists. While some judges say they work to ensure only reliable scientific evidence is presented to juries, criminal justice advocates say that more must be done to root out an array of pseudoscientific practices that can life-or-death consequences.


“’What passes for science in courtrooms is not always, in fact, science,’ Kathryn Kase, interim executive director of the Texas Defender Service [told the Times].”


Ms. Kase hit the proverbial nail on the head. As we pointed out in a January 2010 post, “given the overall state of dispute of forensic sciences (fingerprinting, ballistics, blood splatters, dog sniffing, to name a few), we have no reason to believe that the out-sourcing of these [HPD crime lab) ‘backlog’ cases will produce more reliable results. It boils down to this: the most recent Paul Shrode episode, and the recurring problems with the HPD crime lab, convinces us that there is doubtful credibility in the field of ‘forensic sciences,’ and for this reason, criminal defense attorneys must vigorously challenge every shred of forensic evidence presented in a Harris County courtroom for its reliability. Criminal defense attorneys can no longer accept ‘expert’ testimony as per se reliable, regardless of whether the trial court accepts the witness as ‘qualified’ to the expert testimony in question.”


We close with this observation State Senator Rodney Ellis (D-Houston) gave to the Times: “To have a justice system we can have faith convicts the guilty and protects the innocence, we need scientific evidence that’s based on real science, not some guy saying he has magic dogs that can solve crimes.”  Well said…


By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
John Floyd is Board Certified in Criminal Law by the Texas Board of Legal Specialization