There but for the Grace of God 
Kick Up Your Heels 
Weird Science
Testimony from forensic experts can be the most persuasive evidence presented at trial, but often juries don’t realize that the analysis of hair, fire, and even fingerprints may not be so scientific. And as the story of deputy Keith Pikett, master of the dog-scent lineup, shows, investigations can sometimes lead to the greatest crime of all: putting innocent people behind bars.
Charles Linch says: Many things in forensic science have changed since 1994. Hair comparison microscopy is still very useful as a screening tool but should never be entered into court without supporting DNA analysis. I have published many papers regarding this. That implementation was 2 years too late for the Blair case since mtDNA testing only started in the U.S. 1996. Ordinary DNA testing only got good in 1998. In addition, now libel by false impression is legally action in Texas. It unfortunately was not in May, 2000. The sky is not falling, it is getting more clear. (April 27th, 2010 at 10:27pm)
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Science came too late for Cameron Todd Willingham, but it arrived just in time for another death row inmate, Cathy Lynn Henderson. Henderson was babysitting three-month-old Brandon Baugh in her Pflugerville home in January 1994 when the baby fell and died from multiple skull fractures. Henderson said she had accidentally dropped Brandon while reaching to answer the phone, but Travis County medical examiner Robert Bayardo disagreed. At the time, most scientists believed that a simple skull fracture indicated an accidental fall, whereas multiple fractures suggested some kind of violence, and he ruled that the baby’s fractures indicated homicide. At trial the assistant DA asked Bayardo if a fall from Henderson’s arms could have caused the fractures. “No,” he replied. “That’s incredible.” For injuries as bad as those, Bayardo testified, “He would have to have fallen from a height higher than a two-story building.”
Henderson was found guilty in May 1995, sent to death row, and eventually given a June 2007 execution date. But between 1994 and 2007 a lot of things changed in the field of infant head trauma; biomechanical research had led some pathologists and doctors to conclude that babies could get severe head injuries with far less force than anyone had previously thought. In other words, a short fall could cause catastrophic skull injury—and Henderson could have been telling the truth. Her lawyers showed this research to Bayardo, who filed a stunning affidavit in May 2007. “Based on the physical evidence in the case,” he wrote, “I cannot determine with a reasonable degree of medical certainty whether Brandon Baugh’s injuries resulted from an intentional act or an accidental fall. In fact, had the new scientific information been available to me in 1995, I would not have been able to testify the way I did . . .” Two days before Henderson was scheduled to die, the Court of Criminal Appeals granted a stay of execution and sent the case back to the trial court.
“Reckless Disregard”
Last June the cracks finally started appearing in Pikett’s world: Not only did the state lose a case in which he’d testified, but for the first time a judge refused to allow him to take the stand. “Deputy Pikett’s methods fail the reliability test,” wrote Brady Elliott, of the Fort Bend County district court, “and therefore I will not qualify him as an expert.” In October the attorney general’s office—which had been pursuing both the Saul and Graves cases—declared that it had “imposed a moratorium prohibiting the use of scent evidence.” (The investigations of both men are ongoing.) Then came the media scrutiny, including a long story in the New York Times. It was all too much for Pikett, who retired in February. “When all those things hit,” Sheriff Wright told me, “none of the agencies wanted to call him for work because they were afraid of being sued.”
Indeed, fifteen years of relying on an unreliable expert finally caught up with the State of Texas. In 2009 Buchanek, Curtis, Johnson, Bickham, and Miller all filed federal civil rights suits against the cities of Victoria and Houston and the counties of Victoria and Fort Bend, as well as various law enforcement officers, including, of course, Pikett. The suits accuse them of negligence, poor methodology, and outright fraud, of acting “unreasonably and in reckless disregard for the truth.” The scent lineups, one suit declares, were “rigged to be result oriented.”
Three noted dog experts analyzed a video of the fourteen lineups used against Buchanek; all three agreed that the dogs didn’t go anywhere near some of the cans Pikett said they’d alerted on. “This is the most primitive evidential police procedure I have ever witnessed,” Robert Coote, an English police-dog expert, wrote in an affidavit for Buchanek. “If it was not for the fact that it is a serious matter, I could have been watching a comedy.” Doug Lowry, of the National Police Bloodhound Association, also provided an affidavit in which he argued that Pikett had been telling his dogs what to do; Coote agreed, adding, “It appears that it was Mr. Pikett who actually stopped walking when reaching the cans containing the suspect scent.” Steven Nicely, the owner of K9 Consultants of America, described Pikett in an affidavit as “an unprofessional charlatan.” All three saw nothing to indicate that the dogs had alerted on anything. Kevin Kocher, of the National Bloodhound Training Institute, who also saw the video, told me, “Those dogs showed none of the behaviors that dogs that are ‘working’ show. If a dog is working, you’ll see the behavior, either a passive alert or an aggressive one. I mean, a dog is a dog.”
Since Pikett’s dogs consistently put innocent people at the scenes of violent crimes, it’s impossible to escape the conclusion that Pikett was, in Lowry’s words, “cueing his dogs.” In a reply to Buchanek’s suit, Pikett filed a motion for summary judgment, in which he denied “intentionally implicat[ing]” Buchanek in the lineups, saying he hadn’t known which cans held his scent. As to why his dogs consistently matched Buchanek’s scent to the crime scene, he stated, “There certainly could be non-incriminating reasons why Buchanek’s scent/his skin cells could be detected/present on the victim’s body.” Pikett also defended his dogs’ alerts. There is, he wrote, a “unique and intimate relationship between the dogs and their handler, wherein the means of communication becomes clear and obvious between them, although it might appear subtle, incomprehensible, or undetectable to others.”
In his complaint, Buchanek claims the dogs didn’t follow any scents to his or Blackwell’s homes. They were “reportedly directed there” by Pikett and other officers. Sheriff O’Connor, who was part of the caravan following Pikett, denies this. “I watched it all very closely,” he told me. “I saw those dogs pulling him. Sure it was unusual, but I’ve trained hunting dogs. I’ve seen a Brittany dog track a bird for a mile.” Pikett insisted that he “was not leading or directing his bloodhounds, but rather he was following the dogs, during their trailing activities.” He also contended, “‘Vehicle trails’ are not impossible,” adding that his dogs had done them before three dozen times, at least in practice sessions.
“Dogs just can’t do that,” says Ed Frawley, a famed breeder and trainer. Echoing the other experts, Frawley noted the 24 hours that had elapsed between the time Blackwell’s body had been dumped and the dogs started on the trail, the 5.5-mile distance, the heavy March wind (up to 28 miles per hour), and the estimated 13,000 vehicles traveling along Loop 463 that day. “Dogs cannot follow the scent of a person in a car.”
How did Keith Pikett, a well-intentioned chemistry teacher who just wanted to help the police, become Deputy Pikett, “unprofessional charlatan”? And how much did law enforcement enable him? Attorney Jeff Blackburn, who represented numerous defendants in the notorious Tulia drug cases against a lying undercover detective, says, “There will always be careerist cops bold enough to seize an opportunity to make names for themselves by testifying against someone. They get too big for their britches, become the star of the show in their mind. Before you know it, they’re inventing stuff.” Shirley Baccus-Lobel, an appellate lawyer for Richard Winfrey Sr.—who was convicted of a bloody 2004 murder on the testimony of a jailhouse snitch and several Pikett lineups, one of which took place three years after the murder along the third-base line of a Little League baseball diamond—says law enforcement can be part of the problem: “The police are doing it because it’s easy. It’s easier than the grunt work involved in walking the streets, developing leads. ‘Just call the dog guy. He can do it in an hour!’” Even Sheriff Wright agreed with this notion: “My opinion of what happened in some of these cases is that some of the investigators relied too much on dogs and not enough on shoe leather to beat out the evidence.”
I asked Wright if any of the controversy had made him doubt Pikett’s work: “Not necessarily. We’ve known in the past he’s missed some.” Of course, the big question now is, How many?
Hard science
Even the most vocal critic of the criminal justice system wouldn’t argue that we should give up on using forensic science to solve crimes because of practices such as scent lineups or officers like Pikett. Crime is messy, crime scenes are imperfect, and we shouldn’t be slaves to the needs of perfect science—or “quantified random match probability data.” Fingerprints, for all their problems, are essential to the crime-solving process. Even things like dog-scent lineups, if done as the Dutch do them, can help investigate crimes, exclude suspects, and nail the bad guy. As Siegel says, “Just because some of the methods used in the analysis of scientific evidence haven’t been scientifically validated yet doesn’t mean they are invalid.”
But if the system is going to be fixed, putting some actual hard science into forensic science would be a good place to start. The NAS report made several recommendations for reform in the labs, such as creating a new federal agency to oversee various disciplines, establishing rules that standardize the terminology experts can use in court, and removing labs from the control of law enforcement agencies. State representative Gallego held a hearing in January to discuss changing the rules of evidence to keep things like dog-scent lineups out of the Texas courts. He thinks the way to fix the system is to put more responsibility on judges: “We need to find a way to make judges more cautious, to make sure the gatekeeper keeps the gate—lets in the good evidence, keeps out the bad, like these scent lineups.”
A little more caution, or even skepticism, on the part of law enforcement in the quest to solve crimes wouldn’t hurt either. If the history of forensic science has shown us anything, it’s this: Whether we’re talking about voice prints, hair, or the smells that waft from our bodies, if it sounds too good to be true, it probably is.
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