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scent lineups

“Beyond DNA”

The Dallas Observer has a good story about the state of the exoneration business now that most of the cases involving DNA have been handled.

Since Dallas County District Attorney Craig Watkins took office in 2007, incidents of wrongfully convicted men being released from Texas prisons have become almost commonplace. Dramatic scenes of innocent men finally walking free from county courtrooms are like nectar to reporters, who churn out stories praising Watkins’ creation of his office’s Conviction Integrity Unit, established in 2007 to review potential wrongful convictions. While most of these stories mention DNA testing and the fact that, unlike most counties, Dallas stored DNA evidence indefinitely, Duke’s case was different. Out of 17 exonerations in Dallas since 2007, his was one of only four cases without biological evidence, according to data from the Center on Wrongful Convictions at Northwestern University School of Law.

When Watkins became the county’s top prosecutor, he faced a backlog of about 500 cases involving DNA evidence that had previously been denied testing and that would, in many cases, prove guilt or innocence. In the first couple years of the Conviction Integrity Unit’s existence, DNA-based exonerations rolled out every few months. Most were old sexual assault cases in which semen from a rape kit was still available for modern-day tests. “The classic ‘DNA case’ is a stranger-on-stranger sexual assault. Nothing connects the defendant to the crime except for eyewitness ID obtained through questionable procedures, and the sexual assault kit is preserved years later,” says Mike Ware, who led the Conviction Integrity Unit from its inception until this summer.

After Ware resigned to return to private practice in Fort Worth, Russell Wilson, another long-time criminal defense attorney, took his place. Watkins’ first assistant, Terri Moore, also resigned this summer, and Michelle Moore, the public defender who worked with Watkins’ office on exonerations, left in October to help open a public defender’s office in Burnet County. Duke’s case was the first exoneration under the unit’s new leadership.

With all of the changes, Michelle Moore worries that the unit’s gears are sticking and cases that could be moving forward more quickly are stalled. “I think I see the tendency now to be overly cautious and it’s to the detriment of the innocent man,” she says.

“I get that sometimes it’s not as clear-cut as a simple DNA test, because that’s a gold standard, but there are cases … where there should be some things happening,” she says, though she wouldn’t mention any specifically, fearing they would take even longer. “[Russell Wilson] is a very well respected attorney; he’s the nicest man on the planet. I just want to see more action,” Moore says.

Granted, she concedes the system would naturally slow down as the DNA cases thin out and the question of guilt or innocence becomes thornier and more subjective. “I’ll be honest with you: We took the easiest cases first, the ones we could prove definitely by DNA testing,” Moore says, but she’s still concerned that the Conviction Integrity Unit is simply not visiting prisoners, administering polygraphs and calling victims as expediently as it once did.

In the meantime, the sheer number of DNA exonerations — and the efforts to uncover how the courts failed so miserably — have revealed troubling gaps in the criminal justice system: Eyewitnesses are more fallible than jurors might think; forensic evidence isn’t always reliable or interpreted correctly; the way police run lineups can lead to wrongful convictions. The trouble is, those problems may just as easily plague cases in which no DNA exists. Modern science has shown the justice system the tip of the iceberg, but how many innocent men and women are suffering in prison and likely to stay there because they have no evidence to test? Where do law enforcement and innocence advocates, faced with sorting out the guilty and innocent, go from here?

“There’s been a strong shift,” Wilson says. DNA-based cases are still filtering through his office, but for the most part, he says, “the newer cases are non-DNA. … It’s a lot more fact-intensive.”

The good news about DNA exonerations is that they have freed a bunch of innocent men from prison, and that they have forced people to recognize the fact that there are unjustly convicted people in prison. The bad news is that DNA is a factor in only a small number of cases, and it was preserved as evidence in a small share of those cases, so if DNA evidence has become the de facto standard for triggering the exoneration process, a whole lot of other innocent people will be left behind. As Grits points out, there are still many arson cases that need review, and an untold number of people whose convictions were due in part to the no-discredited “scent lineups” of former Fort Bend County Sheriff’s Deputy Keith Pikett. On top of that, as the Michael Morton case has so clearly shown us, prosecutorial misconduct is another potentially large and under-explored factor in unjust convictions. Local defense attorney Robert Fickman wrote an op-ed on that topic, but did not include any actual policy prescriptions for how to deal with it. Clearly, depending on the State Bar won’t do much, so it’s up to the Lege, and they will need good guidance. There’s still a lot of work to be done to ensure justice for those who have been wrongly convicted and those who could be in the future if nothing is done, and that work gets harder from here.

More on scent lineups

The Chron had a good story yesterday about “scent lineups” and the problems they’ve caused in criminal cases. Since one of the main arguments raised by the defenders of the Todd Willingham verdict seems to be that the experts involved are a bunch of bleeding heart liberals, I figured we’d take a look at what the experts are saying about Fort Bend County Keith Pikett and his incredibly accurate dogs.

As publicity spread about Pikett’s work, more and more police agencies and prosecutors began to use him. He has said he has no idea of how many cases his dogs have been involved in, but it numbers in the thousands. He also has testified that his dogs have almost never been wrong. One of them, “Clue,” erred once in 1,659, he has testified, while “James Bond” made one mistake in 2,266 tries.

Well-known police dog trainer Bob Eden, who has written two books on the subject and helped develop minimum training standards, calls such numbers incredible. Literally. Although dogs can perform with amazing consistency, Eden said, handlers are all but certain to make blunders and inadvertently tip the dog to the desired match, or to an incorrect match if the handler has no knowledge of the correct one.

Of equal concern, Eden said, is the absence of carefully recorded training records to demonstrate the dog’s proficiency and error rate. Pikett has acknowledged that he does not keep such records.

“Prosecutors should never put him on the stand without training records,” Eden said. “Everything that is done with that dog should have a training record.”

Three experts hired by the Innocence Project criticized Pikett’s work. The former head of police dog training in the United Kingdom, Bob Coote, reviewed a video of one of Pikett’s scent lineups and was appalled.

“This is the most primitive evidential police procedure I have ever witnessed,” Coote stated. “If it was not for the fact that this is a serious matter, I could have been watching a comedy.”

I look forward to hearing the epithets that will be hurled at Eden and Coote the first time there’s a big push to exonerate someone that was convicted by one of Pikett’s dogs. I suppose if there’s a bright side to this latest innocence frontier, it’s that a lot of the cases that have been publicized so far involved people who were freed before they faced trial, though not necessarily before they spent time in jail. The Victoria Advocate has a couple of good examples, such as this:

On Wednesday, prosecutors dismissed a case against 26-year-old Jamal Miller. Miller was accused in a 2008 bank robbery, based entirely on scent evidence, said his lawyer, Damiane Curvey Banieh.

Prosecutors had video of the robbery, Banieh said, and her client looked nothing like the man in the tape. Miller was 70 pounds thinner and had darker skin than the man in the tape, Banieh said.

Most notably, though, Miller was clean-shaven because he worked at a plant and federal safety regulations prohibited facial hair, Banieh said. The man in the video had a goatee and mustache.

“It’s amazing how bull-headed they were once they had the scent lineup,” Banieh said.

Harris County prosecutor Angela Welton said the case was dismissed because of lack of evidence.

“Scent evidence was one piece of evidence that was looked at,” she said.

You have to marvel at the idea that video of a crime that shows a perpetrator who looks nothing at all like the accused isn’t enough to outweigh a dog scent identification. I can just imagine the summary argument for the prosecution: “Who are you going to believe, our dog or your lying eyes?” Grits has more.

Yet another innocence frontier

Scent lineups.

The Innocence Project of Texas said Friday that scent identification lineups, in which trained dogs determine if a suspect’s smell matches the smell of crime scene evidence, are based on faulty science and have led to a number of wrongful convictions.

The group, which tries to free the wrongly convicted, said it will release a report next week detailing at least five cases in which innocent people were arrested following scent ID lineups conducted by a Fort Bend sheriff’s deputy who trains dogs. Two of the five were jailed for capital murder before the charges against them were dropped.

Deputy Keith Pikett has spent about 20 years training dogs named Clue, James Bond and Columbo to sniff out possible criminals in more than 2,000 scent identification lineups. But the lineups have come under attack from some in the legal community, and Pikett is being sued by two people who claim they were wrongly implicated in crimes because of Pikett’s scent lineups.

[…]

Texas and Florida are the only states that regularly use scent identifications, [Jeff Blackburn, chief counsel for the Innocence Project of Texas,] said. The Innocence Project of Florida is reviewing about 20 cases involving a now dead dog handler who worked on three cases that later resulted in exonerations. Florida has since begun to restrict the use of scent lineups.

During a scent lineup, an officer wipes individual pieces of gauze or cloth on a suspect and several other people, and then places them in separate coffee cans, according to the lawsuits against Pikett. A trained dog is presented a piece of crime scene evidence, and is then led by Pikett to each can for a whiff. The dog is supposed to signal Pikett if it sniffs a match.

[…]

The lawsuits aren’t the first time someone took action against Pikett. In 2008, a now former Harris County assistant prosecutor e-mailed his colleagues to warn them about the “unreliable evidence” that came from Pikett’s work with Houston police, according to an affidavit.

Dr. Alejandro del Carmen, the chairman of the University of Texas at Arlington’s criminology and criminal justice department, compared scent identification to primitive criminology theories that identified suspects by body type. The once-accepted theory was that skinny people were too shy and heavy people too lazy to commit crimes.

“As a trained criminologist and a Ph.D., I find it nerve-racking that the justice system would rely on the ability of a dog to predict someone’s guilt or innocence,” del Carmen said.

Go read about Clever Hans if you’re unfamiliar with the potential pitfalls of relying on animals in this fashion. Grits, who has been following this for awhile, has more. The fact that only Texas is doing this should raise red flags about this practice. Maybe when dogs can be called to the stand to be cross-examined it’ll be different, but until then I think they ought to stick to search-and-rescue and tracking fugitives.

UPDATE: More from Grits.