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.

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