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Does the State ever know when to give up?


You probably thought you heard the last of dog scent line-up line-ups right? I’m still amazed that they ever got admitted in the first place – but that’s a different topic. The picture of a dog sniffing around and picking someone out is something you would only see in comics. That is of course unless it’s the State, and the dogs can provide evidence of guilt.

To say that Deputy Keith Pikett and his magic dogs have been discredited is an understatement. The Innocence Project of Texas was the first point out the problems in a comprehensive report issued in September 2009 . It appears that judges finally got the message, and started excluding the evidence. Which brings us the case of Jason Smith who was indicted for murder in Ft. Bend County – Keith Pikett’s home base. Not wanting to give up on a good thing, the State wanted to use scent evidence. The defense filed a motion to exclude, which was granted. Not to be deterred, the State appealed. Their argument was basically that the the same type of evidence had been challenged before and rejected, and that decision had been upheld on appeal. In other words, once admissible always admissible.

Decisions on admitting evidence are reviewed for what is called abuse of discretion. Basically, a judge’s ruling is upheld if he had at least some logical reason for his holding. It’s an extremely lenient standard, which makes challenging decisions regarding the admission of evidence almost impossible. The State learned this in Smith, and the Court of Appeals refused to overturn the trial judge.

What strikes me about this case is the mental gymnastics the State will go through to justify the use of evidence. To be fair, they aren’t alone. Defense lawyers due it too – it’s part of human nature. They occupy a different role though, because their position is not supposed to be strictly adversarial. They are supposed to operate with the goal of securing justice. Unfortunately. that often takes a backseat to the desire to win.

No one can seriously claim that dog scent evidence is even remotely reliable. It’s time to give it up. Yes, it means you have to discard evidence that nails the defendant – but the problem is that might not be accurate. Find some real evidence and go with that.

Giving credit to lawyers for being smarter than they really


Occasionally you read a decision and your draw drops; just when you think you’ve seen everything, you learn something knew. I had that experience earlier this week when I read the Court of Criminal Appeals decision in Niswanger v. State. It seems Mr. Niswanger was at a grocery store selling raffle tickets to supposedly benefit firefighters and soldiers returning from Iraq. The local mayor complained, so an officer went to investigate. Mr. Niswanger told the officer he had the store’s permission, and after explaining the charity asked the officer if he wanted to buy a ticket. The officer asked for his identification, and as Mr. Niswanger was retrieving his license a Volunteer fire department badge appeared. The officer asked Mr. Niswanger if he was fireman, and he said he was.

So what happened next? Mr. Niswanger was arrested for impersonating a public servant. The state alleged he claimed he falsely claimed to be a fireman to dupe the officer and sell raffle tickets. The problem Mr. Niswanger had was that he had a prior criminal history, which the State of course threatened to use against him. Not wanting to face 25 years to life, he agreed to 10 years. So for carrying a volunteer fire department badge he gets to go to prison for 10 years. Talk about being tough on raffles!

Mr. Niswanger filed a writ of habeas alleging his lawyer was ineffective.  Counsel apparently agreed that he told Mr. Niswanger the state’s case was “rock solid” and that he was facing a sentence of 25 years to life.  Mr. Niswanger alleged his lawyer didn’t do an adequate job of investigating the case, and had he done so he would have realized that there was at least an issue as to whether selling raffle tickets was an “official act” and whether a volunteer fire fighter was a “public servant”.  Here’s where the reasoning goes off track. Counsel stated that there was no way to investigate the case because it was essentially a policeman said vs. defendant said case. Huh? The court accepted that explanation, explaining that given the uncertainty about what the evidence would show, and the certainty about the possible punishment, it was reasonable to advise the defendant to plead guilty.

The problem I  have with that logic is that counsel has a duty to investigate, which involves more than reading the police reports. There is no indication that counsel did that in this case. What’s worse is that the failure to investigate and learn about the case is used as the  reason for recommending a guilty plea. Surely we require more from lawyers than that.

The opinion gets better, because the lawyer all the sudden is given credit for being pretty bright. Mr. Niswanger alleged his lawyer should have challenged the indictment. The Court agreed there may have been defects, but that if they were challenged the State would have just re-indicted. They ignore the fact the new indictment may have contained information that was not included in the original – e.g. the facts they were relying on to show it was an offense. The Court also assumes that if that was done the State may have withdrawn the 10 year offer – even though there was absolutely no evidence that was the case. The court also assumes the lawyer considered those possibilities, and chose not to challenge the indictment. My guess is it never crossed his mind.

The end result is that a defendant gets 10 years for something that might not even be an offense. Can anyone truly say thats fair? Of course that’s not the right question, because habeas corpus is not concerned with fairness. This case shows just how hard it is to obtain relief – even when it should be granted.

Does Innocence Matter on Appeal?


One of the hardest things to explain to clients is that an appeal is not about guilt or innocence – in fact, it is rarely an issue. I don’t know how  many times I have heard people say “if they will just look at the case they’ll see he (she) is innocent”. That statement couldn’t be farther from the truth. The appeal court does not look for innocence – they assume you are guilty, since that is what the jury decided.

There are rare case though where innocence is clear – or at least there are questions. The case of Megan Winfrey is one of those. Ms. Winfrey and her father – Richard Winfrey, Sr. – were convicted of murdering a high school janitor. A big part of the case was dog scent evidence – which thankfully has been revealed for what is – a bunch of crap. The Texas Court of Criminal Appeals agreed with that assessment last year, and reversed Mr. Winfrey’s conviction. The State refused to concede and retried Mr. Winfrey – again using dog scent evidence. This time the lawyers did a great job of discrediting the evidence and the jury let the State know what it thought about it – acquitting Mr. Winfrey in thirteen minutes.

You might think that would be good news for Ms. Winfrey – but you would be wrong. Her case was argued before the same court – the Texas Court of Criminal Appeals – in April. Six months later there is still no decision – and she is still in jail.

So why s that? I certainly don’t know the answer, but I do know how Court’s operate. Just because they believe the State used junk science – which they would be hard pressed to reverse court and find otherwise – doesn’t mean the conviction is reversed. They still have to decide whether that made a difference – i.e. was it harmless error. The State claims her “suspicious behavior” supports the guilty verdict; always a popular argument when you don’t have any real facts.

Whatever the reason, it’s hard to ignore the jury’s finding – if her father didn’t do it, is it reasonable to think she did? Unfortunately, “reasonable” isn’t usually a consideration on appeal. Let’s hope this time it is – and they reverse her conviction soon.