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“JUNK SCIENCE” ONCE AGAIN PUTS TEXAS IN NATIONAL FOREFRONT

Jan 05 2012
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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

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    Excellent service and a lawyer that doesn't lie. He does what he says. JW recommends him.
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    One of the best services Ive used in awhile. Thank you for all the help and answers. You got my life back. Thank youPositive
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    John represented me in court for roughly 2 years. I won't (and shouldn't) get into any serious details, but let me tell you that I couldn't have chosen anyone better. … More Seriously.Every appearance in court I felt very comfortable. The judge and DA's had a high regard for his reputation. There is a time I recall where simply his presence greatly impacted the court's interpretation of my case and persons. We were in front of the stand and the judge could not stop talking about John's prestige and past accomplishments and how that took in relation to my case. I kept silent in front of the judge, but I observed then that John's popularity and reputation within the court had already given me a better looking rapport with the judge. Let me tell you, I never had more confidence then, knowing that the judge held him in such high regard.This is not to mention how personable John is. I'll be honest that during the stress of court, sharing a laugh with your lawyer helps a lot. This may sound a lot, but I really appreciated the relationship we had then. This is also not to mention that he was able to deal very well with any DA that rotated over the years. Seriously, John was great, prompt with information and very hands on with my case. I had great peace those 2 years until everything wrapped up.If you're looking for a lawyer, I highly, HIGHLY recommend the John T. Floyd Law Firm. He IS nationally renowned, you know. He'll get the job done to the utmost confidence. He's very experienced and has a great record to boot. I am glad to have had him represent me in court and trust me that I never thought I'd ever say that (and whoever does?). We explored every avenue of victory together and I personally enjoyed the experience, despite the seriousness of the accusation.If you have a case that needs to be represented at the highest levels, choose John T. Floyd. He's a good man and very good at what he does. Him and his team has the experience you need to make the best decisions and options to get the best outcome for your case. We got the best result I could possibly ask for, thank God.Seriously. Hire John. He knows what he's doing.Seriously.
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    One of the few honest lawyers I have ever talked to. His complimentary consultation was knowledgeable and thorough. He knew exactly what the issue was and how to handle it. His candid … More appraisal of the situation and how to proceed saved me thousands of dollars in legal fees. If you have a case requiring expertise in John's area of practice, look no further. Hire this man!
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    He gave me one of the most honest answers I have received in a very long time about any issue I was having with anything. Legal or not legal. I highly recommend giving him a call and … More will be referring him to friends and family if they have any issues in the future.Positive
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    He took time out of his day to answer my legal questions and didn’t even charge me. I would definitely recommend him to you.
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    Gave free consultation on getting gun rights back. He truly cares about gun rights and getting you the help you deserve. 100% worth a callPositive
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    Very professional, great quality work, and very friendly and helpful. Overall, their service is phenomenal. I recommend Mr. Floyd to anyone.
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    Mr. Floyd took the time to explain his experience with the law to me in layman's terms. Definitely give him a call.Positive
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    He was honest , knowledgeable , and professional about what we talked about. Most lawyers are just about the money , but not john.Positive
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    He was very truthful and honest with us very great man I would recommend him and we would use him again
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    Very professional honest and works hard currently working my husband’s appeal I pray he does his best workPositive
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    I contacted John T. Floyd Law firm and I was very satisfied with service extremely helpful and friendly thank you Mr. FloydPositive
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    I would highly recommend Mr Floyd. He was very helpful and knowledge with a legal question I had.Positive
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  • Avatar Eddie Villarreal ★★★★★ 3 years ago
  • Avatar Neil Productions ★★★★★ 4 years ago
    Had the pleasure speaking with John Floyd on a personal matter, he was very responsive, nothing but exceptional, and he really cares about you with sincerity and most importantly knows … More what is he talking about! No games or bs, his approach to my situation even though I knew it was probably way smaller then what he normally takes on, he was extremely helpful and didn't care about the size of the matter like other attorneys do. He really looked out for my best interests. You can tell he has decades of experience doing what he does just by chatting with him. I would highly recommend him.
  • Avatar S A ★★★★★ 4 years ago
    Words can’t describe how grateful I am for working with John, he went above and beyond my expectation. I was wrongly accused and hired many lawyers before hiring John Floyd but they … More all disappointed me, I had lost hope until a friend of mine referred me to John. From the start he had my best interest in mind and gave helpful advice, he explained the process and guided me. He put more work and time than all my previous lawyers that cost me thousands of dollars. He was constantly communicating with court and defended me more than all lawyer i had hired before him. Don’t waste your time and money like I did, believe me when I say I hired countless lawyers before him and no one came close to John. I’m forever thankful for him for fighting for my innocence and getting my case dismissed. Thank you so much🙏🏼🙏🏼
  • Avatar Gary Watch ★★★★★ 4 years ago
    I called Mr Floyd and left a message, with in the hour I received a call back with much more information then I could have ever expected. Mr Floyd was very informative on every question … More I had for him. He seemed like he cared, instead of like most attorneys that you talk to that are just out for a quick buck. If you want someone that is going to shoot strait with you, and has your best interest in hand, this is you guy. This was the best experience that I have ever had with an lawyer.
  • Avatar Saman Daftarian ★★★★★ 4 years ago
    I can state with confidence that Mr. Floyd and his team are the most competent and professional lawyers one can hope for. My case was quite complex and I admit that as a law student … More I was not the most patient client. Mr. Floyd did a phenomenal job of managing the bench, prosecution and myself! The result was above expectation, and I will never hesitate to recommend this firm regardless of the caliber of the case at issue.
  • Avatar calvin robinson ★★★★★ 4 years ago
    It was a pleasure working with Mr. Floyd. I contacted him regarding a legal matter and he was extremely knowledgeable about the law, and responded in a timely manner. I appreciated … More the fact I did not feel rushed, and he made sure he thoroughly answered all questions I had. I would highly recommend him!Positive
    Responsiveness, Professionalism …More
  • Avatar Alan Howk ★★★★★ 4 years ago
    Spoke with John Floyd about a 45 year old criminal case I was involved in. I had very little information about the case and John helped me search what records were available and gave … More me guidance to find more information. He was very professional and took his time helping me. I may need to hire a lawyer on this case and Mr. Floyd will be the man.Thanks John.
  • Avatar CMCustom Cycles ★★★★★ 4 years ago
    Very professional and straight forward. He's not going to waste your time or money. Very knowledgeable in a large range of possible matters one could face living in these days … More and times. If ever you need legal assistance, this is who I would suggest. Awesome!Positive
    Responsiveness, Quality, Professionalism, Value …More
  • Avatar Greg Page ★★★★★ 4 years ago
    I called about some legal questions I needed to get clarified and John was able to give me clarification and sound advice. I will definitely contact John for all future legal questions … More and issues.Thank you John!Positive
    Responsiveness, Professionalism, Value …More
  • Avatar Kristen Rankin ★★★★★ 4 years ago
    Knows his stuff and well respected with DA and judges. I have referred him a couple times and every client has been satisfied
  • Avatar Kedar Puranik ★★★★★ 4 years ago
    John is beyond knowledgeable! If I decide to pursue my case any further I would only have him represent me.
  • Avatar Joseph Sivadon ★★★★★ 4 years ago
    What a great attorney, this guy really took time out of his day to answer my questions and explain my case to me. Very grateful, thank you so muchPositive
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  • Avatar Lex Strider ★★★★★ 4 years ago
    Absolutely a very professional lawyer. Very well read in the current law and more than willing to help if needed.
  • Avatar karim khalifa ★★★★★ 4 years ago
    Mr. John he’s a professional he knows what he’s doing and he’s patient they recommend Him stronglyPositive
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  • Avatar James Haggard ★★★★★ 4 years ago
    Great service, very knowledgable and happy to help with any questions I had
  • Avatar David Sustaita ★★★★★ 4 years ago
    Quick to action and helpful and knowledgeable with entertainment industry based issues!
  • Avatar Chad Groves ★★★★★ 4 years ago
    Responded on a holiday week. Very knowledgeable and reassuring.
  • Avatar Mark Fein ★★★★★ 4 years ago
    Very professional
  • Avatar Bthomason903 Bthomason903 ★★★★★ 4 years ago
  • Avatar Anton Jasser ★★★★★ 4 years ago
  • Avatar Alma Garza ★★★★★ 4 years ago
  • Avatar Victory 2020 ★★★★★ 6 years ago
    I want to thank John T. Floyd and all of his team. He is the best lawyer who cares aboutHis clients and fights really hard to get the best outcome. He is a fighter and he is awesome!!!I … More recommend if any one needs criminal defense , he is the BEST. We had a really serious caseAnd we are very thankful for the outcome. Thank you John!!!!! God bless you!!!!!!
  • Avatar Alma Garcia Cunningham ★★★★★ 6 years ago
    The attorneys at John T. Floyd Law Firm work diligently to achieve the best possible results for their clients. They are caring and knowledgeable professionals. Their expertise in the … More law and their experience as trial attorneys makes them the right choice as a defense attorney. I recommend this law firm highly.
  • Avatar Rajiv Patel ★★★★★ 6 years ago
    From beginning to end this firm handled my case like the top tier professionals they are. I would not trust ANYONE else with my legal needs after having less than stellar experiences … More with other teams. Thank you Floyd!!!
  • Avatar Jose Tapia ★★★★★ 6 years ago
    I really felt like the team cared about my case and am super satisfied with the outcome. Would not recommend anyone else!
  • Avatar Sagar Patel ★★★★★ 6 years ago
    These guys do amazing work and have phenomenal service! Hands down best in the Houston area!!
  • Avatar RAYNINN ★★★★★ 6 years ago
    John and Chris are true professionals! Love those guys like family!
  • Avatar Virginia Martin ★★★★★ 6 years ago
    Mr. Floyd and his team are very knowledgeable, informative, and helpful.
  • Avatar Darla Latham ★★★★★ 6 years ago
    A team you can depend on to stand up and fight for you to prove the truth the whole truth!
  • Avatar Veronica Elorza ★★★★★ 6 years ago
  • Avatar Karetta Lux ★★★★★ 7 years ago
    Mr. John T. Floyd represented me.I couldn't be happier with the outcome he managed to achieve on an VERY Important case that was dismissed the day of Trial. He is patient & … More very knowledgeable of the legal system. I HIGHLY recommend him to anyone in need of a lawyer!John, I am forever grateful & satisfied with the effort you put forth & all you did for me. Thank you isn't enough!God bless you & your family!
  • Avatar GM ★★★★★ 8 years ago
    The John T. Floyd Law Firm assisted me, and I can tell you that the attorney took the time to answer my questions, and I didn't feel rushed or dismissed as I have experienced in … More the past with attorneys. The attorney was very nice and extremely knowledgeable. Initial impressions and continued excellent customer service are big factors for me and as such I would highly recommend this firm.
  • Avatar Sandra Bivens ★★★★★ 8 years ago
    I thank you for your efforts to help Felons regain their Civil rights, and for the information on possession , I am A convicted Felon, no violent history. I am an expert shot, I am … More 76 yoa, and very concerned about the present lake of Security in our State and Country. God Bless and Prosper you in your efforts, Your friend, Sonny Bivens
  • Avatar Mike Kittelson ★★★★★ 8 years ago
    I really appreciated both Chris and John helping with my legal questions and concerns. Both are good guys and I would not hesitate to recommend them.
  • Avatar Robert Hair ★★★★★ 8 years ago
    Extremely helpful!!! Helping me understand the law.

John T. Floyd is Board Certified in Criminal Law By the Texas Board of Legal Specialization

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