Monday, June 15, 2009

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.....

10 comments:

Professor Hale said...

I agree with you that the reliability of the dog sniff test needs to be tested. If not by the judge then by the defense team.

As you alluded to, this is not the critical evidence on which the case turns.

I am puzzled by your attitude that this being a capital case makes it more important. A life sentence for an innocent man is every bit as important as a death sentence. On the other hand, if you know the client is guilty, then aren't you intentionally trying to pervert justice?

I know that it is not the common attitude among lawyers, but the role of the defense team, when defending a guilty person, is merely to ensure that the process is followed, the prosecution is competent, and the penalty is not out of line with the crime committed. There really is no doubt that the defendent is guilty, is there?

The right to a fair trial is suppossed to mean that guilty people are found guilty and innocent people are acquitted.

Anonymous said...

Why would you assume the client is guilty?

katherine scardino said...

Professor Hale: Would it be "fair" for a defendant in a criminal trial to be convicted on less than reliable evidence? What does it matter whether he is guilty or not? Would it be ok for the cops to beat a confession out of a guilty person? My job is not to just be sure that his sentence is "fair" but that he has had a trial where the evidence has been reliable, credible, obtained in a procedurally correct manner and rises to the level of "beyond a reasonable doubt". I do not think dog scent evidence is sufficient. But, since you brought it up, in this specific case, I do not believe my client is guilty at all. So, this questionable evidence could be used to convict an innocent person. Is that ok?

Leah said...

There are many things that can make a person's body scent change. Diseases and medicines are among them. I hope you can so something about this Katherine.

Professor Hale said...

..this questionable evidence could be used to convict an innocent person. Is that ok?

more than OK. That is your strongest argument. I understand how the legal profession has strayed from first principles so that they now believe the object of the vigerous defense is winning.

It would be superflous to beat a confession out of a guilty person. The purpose of having a 5th amendment is to protect innocent people from having a confession beaten out of them.

Your desire to get reliable, credible evidence that was obtained procedurally correct is the safeguard for your client, given the assumption he is innocent. Our legal traditions accept as a matter of course that the accused is in fact innocent until such reliable and compelling evidence is presented.

I assumed he was guilty because you, the lawyer, never made the claim otherwise, when that was the strongest argument you could have used. Perhaps not refering to your client's guilt is a lawyer custom. I suppose it would be come superfluous for every defense lawyer to state openly that her client was innocent while every prosecutor said the opposite.

Anonymous said...

Professor Hale, you are an idiot of the first degree.

She didnt claim innocence or guilt or her belief of because the case could be made public obviously.

And you sure have a lot of assumptions. Based on nothing that was in this article.

A Voice of Sanity said...

This is the worst sort of junk science. Show me compelling statistical studies which prove that dogs can be reliable witnesses. This sort of study would need 10,000 dogs and 1,000,000 tests.

When a dog is scented and leads the handler to a body or drugs or whatever, that's fine. But when there is a claim that someone, anyone, can read the dog's mind and tell us what it is 'thinking' then you have returned to trial by ordeal. How do you know it isn't responding to Snausages - or another dog's butt?

Professor Hale said...

Anon,
I'll try harder next time.

Albany Lawyer said...

I just had a suppression hearing involving a dog sniff. The two cops testified very differently about what the dog did. The dog handler testified the dog had never had a false negative, but also testified that the dog alerted to two places on the defendant's car, one of which was not where the drugs were.
Meanwhile, the other cop testified he smelled marijuana himself. The pot was vacuum-sealed, then closed inside larger zip-lock bags, then in a garbage bag, in the trunk of a Mercedes. It had been placed in that care only 10 minutes before the traffic stop. The officer who made the stop did not testify.
Despite all this, suppression denied. Maybe I have PTSD.

A Voice of Sanity said...

I confidently expect that, any day now, some prosecutor will bring on an 'expert witness' who determines guilt by reading the entrails of a chicken.

Don't laugh. Just wait. They'll have a 'degree' from a mail order college in entrail-ology.