Is Rover Reliable?

by Katherine Scardino

I have recently been reviewing some material having to do with some evidence that the State of Texas wants to introduce in a death penalty trial scheduled to begin in October 2009. I am truly astounded that the prosecutors would even consider this evidence as appropriate for a case where a man can lose his life.

I have always heard of dogs sniffing cars, purses or other belongings of citizens to see if they are “holding” drugs. Dog scent evidence is pretty commonplace around the courthouses where I practice law. Lawyers are always trying to figure out a way to outsmart these drug-sniffing dogs who have been trained to find controlled substances - and they usually do. I once had a dog alert on me at the Houston international airport, because I had an apple in my purse that I had purchased in Mexico but “smuggled” into the United States.

My client was accused of capital murder in 1992. He was tried in 1994, and because of other circumstances that we do not need to discuss in this article, his case was overturned by the Fifth Circuit and remanded for a new trial in 2006. From 1994 until 2006, this man lived on Texas’ Death Row. Now, he is in the county jail where the offense occurred awaiting trial.

So, we are working on his case; things going along pretty normally. About a month or so ago, I received an email from the prosecutor advising me that he has obtained a search warrant from some magistrate (not the district court judge who will hear this case) to go to that county jail and obtain scent evidence from my client through swabs of certain areas of his body. That all sounds like it might be OK - except that the prosecutor plans on having a dog smell my client’s scent and then attempt to connect my client’s scent to the scent of this 1992 evidence that has been stored in cans in an abandoned jail since 1994. In case your math is about like mine - that is 15 years ago. So, the bottom line is this: can a dog small your scent and then sniff the 15 year old evidence and make a valid connection between your scent and the evidence? And, if one assumes that this is legitimate science and credible, then it is proof that the defendant is connected to the crime.

The defense team is obviously not going to take this lying down - right? So, we do some research. One of the interesting articles we found is from Florida and from the Orlando Sentinel newspaper today. The article discusses three men who spent twenty-something years in prison for crimes that DNA now proves they did not commit. Each of these three men was convicted by the prosecution using a German shepherd named “Harrass”. The articles indicates that the only way the owner of Harrass was discredited was by the judge testing the dog himself. Is that what it really takes? Does a judge have to step down off the bench, take the dog by its leash, and see if the dog actually alerts to a valid scent without his owner/trainer. Apparently, the dog did not alert to anything when the judge was testing him.

We have in our jurisdiction an owner/trainer of three dogs who are just as wrong as Harrass was in Florida. We have a situation where my client could be sentenced to death and part of the State’s case will rely on the dog sniffing lineup of 15 year old evidence. Do you think a dog can connect a scent to evidence that is this old?

What about the legal “reliability” of scientific evidence? Is it really scientific evidence - or is it just junk science? And, if it is just junk science, why are we using it to possibly execute a citizen?

But, the real problem has to do with the mindset of the prosecutors who are willing to use this evidence to convict a man of capital murder and possibly obtain a death sentence. Am I the only one who is scared to death about people in our world who would be willing to present this evidence to a jury and argue to this jury that the evidence is valid and reliable?

I need a judge who is willing to step off the bench and get his hands dirty - like the judge in Florida.....

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