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Stories Added - April 2010
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DA defends evidence in murder case
San Jacinto News- Times
COLDSPRING – Appearing before the Court of Criminal Appeals, Austin, last week, San Jacinto County Criminal District Attorney Bill Burnett defended evidence used to get a murder conviction against Willow Springs resident Richard Winfrey Sr. in the Aug. 7, 2004 murder of Murray Burr. Winfrey is currently serving 75 years in prison although no physical evidence tied him to Burr’s brutal murder and no witnesses placed him at the crime scene. What did tie him to the crime scene was a canine scent line-up conducted by now retired Fort Bend County sheriff’s Deputy Keith Pikett and his three bloodhounds. Pikett, a self-taught dog handler, presented evidence to a San Jacinto County jury in 2007 showing his bloodhounds alerted to Winfrey’s scent pads, indicating his odor was on the clothing in which Burr was murdered. Although Winfrey Sr., was charged with capital murder, jurors found him guilty of murder, rejecting the capital murder charge that accused him of killing Burr during the course of “committing or attempting to commit the offense of robbery of Murray Wayne Burr.” Winfrey Sr. appealed his conviction, contending that the evidence against him at trial was legally insuffi cient and, alternatively, factually insuffi cient to sustain his conviction for murder. The court of appeals affi rmed the conviction. Two of his children were also tried for capital murder in separate cases for Burr’s murder. His daughter, Megan, was found guilty of capital murder. His son, Richard Jr., was acquitted. Citing the only difference in the three cases, defense lawyer Shirley Baccus-Lobel, while initially representing Richard Winfrey Jr, introduced evidence from a forensic scientist that attacked Pikett’s training, scent lineup methods and conclusion. “The court of appeals applied the wrong standard in evaluating the reliability of the dog scent lineup. Issues of hard science are presented when the nature of scent and canine olfactory detection capacity are considered and when issues of scent transference and how long scent lasts are presented through purported expert testimony. “The expert testimony should have been evaluated in accordance with the standards of Kelly, not the less rigorous standards of Nenno. Under Kelly, novel scientifi c evidence must be shown to be reliable or it is not admissible. To be considered reliable, the scientifi c theory must be valid; the technique applying the theory must be valid; and the technique must have applied the theory properly on the occasion in question. Even if reliable, the proffered evidence may not be helpful because its probative value is substantially outweighed by the risk, for example, of misleading the jury, undue prejudice or confusion,” Baccus-Lobel stated. Currently representing Richard Winfrey Sr., last week she asked the Court of Criminal Appeals to throw out his conviction as legally and factually insufficient based on the unreliability of Pikett’s scent lineups. In briefs presented to the Court of Criminal Appeals, Baccus-Lobel said none of the evidence at Winfrey’s trial implicated him in the murder and that includes the dog scent lineup evidence. “The reliability of dog scent lineup evidence and Pikett’s qualifications are not adequately demonstrated by the record. Simply put, the dog scent lineup conducted cannot make legally insufficient evidence legally sufficient. Guilt in a criminal case must be proved beyond a reasonable doubt. The court of appeals applied the wrong standard in evaluating the reliability From page 1A of the dog scent lineup. Issues of hard science are presented when the nature of scent and canine olfactory detection capacity are considered and when issues of scent transference and how long scent lasts are presented through purported expert testimony,” Baccus-Lobel stated. Burnett, on the other hand, argued the proper Nenno standard was utilized and the court of appeals properly evaluated the canine scent evidence under the Nenno standard when evaluating the legal and factual sufficiency of the evidence. “The court of appeals properly applied the Nenno standard in evaluating the canine scent evidence and it is certainly true that the canine scent evidence indicating that Richard Winfrey Sr., had been in contact with the victim provided, as the court of appeals pointed out, ‘direct evidence’ of Winfrey’s contact with the Burnett said Baccus- Lobel argues that the court of appeals incorrectly applied the Nenno standard in the case and urges that the Kelly standard should be used when the nature of scent and canine olfactory detection capacity are considered. “The Nenno standard evolved to address fields of study aside from the hard sciences such as the social sciences or fields that are based primarily on experience and training as opposed to the scientific method. Through Nenno, the court refined the Kelly framework to provide a more adequate means of analyzing the reliability of scientific evidence based on soft sciences. “The use of canines to discriminate scents is now commonplace in law enforcement. Dogs have been trained and utilized throughout the United States to find drugs, detect bombs, locate cadavers, detect the presence of hydrocarbons in suspected arsons, to locate trails and track individual suspects and to perform scent discrimination lineups. In all instances where canine scent discrimination is used by law enforcement, it is a forensic tool used in the field. When drug sniffing dogs alert on suspected drugs, that alone is not sufficient for conviction. The drugs are weighed and evaluated by competent laboratories t confirm the alert by the dog. An affirmative link must be established between the drugs and a particular suspect. In all other instances where canine scent discrimination comes into play there must also be some corroboration of the dog’s alert and other evidence to obtain a conviction. Dog scent discrimination is not meant to be, nor can it conceivably be, a laboratory science subject to rigorous Kelly analysis. It is what it is, a valuable field for investigators to locate contraband, identify suspects and assist law enforcement in apprehension and prosecution,” Burnett stated. Baccus-Lobel contends that Winfrey was denied by the court of appeals a proper factual sufficiency review because the court erred as a matter of law by analyzing scientific evidence under a Nenno standard. “Accordingly, the court of appeals’ judgment must be vacated and this case remanded so that the court of appeals can evaluate the scientific evidence offered against appellant under an appropriate standard of reliability and can consider the evidence which forms the basis of Winfrey’s challenge to the sufficiency of the evidence,” she stated. She asked that the court reverse the decision of the court of appeals and remand the case for dismissal due to legal insufficiency of the evidence and entry of a judgment of acquittal or, alternatively, remand the case to the court of appeals for a proper factual sufficiency review and application of the correct standard of law. Burnett concludes that the court of appeals properly evaluated the evidence at trial in regard to legal and factual sufficiency. “The court of appeals properly evaluated the canine scent evidence under the Nenno standard. The court of appeals properly relied on canine scent evidence in reaching its conclusions,” Burnett stated. He is asking that the decision of the court of appeals affirming the judgment of the trial court against Winfrey Sr., be upheld. A decision from the Texas Court of Criminal Appeals in Austin is expected in about three months, Burnett said.