Thursday, October 27, 2011

“Putative” Experts Don’t Impress Federal Judge, But Were Canine Issues Fairly Resolved by Summary Judgment?

Sometime in late 1980 I was representing a man found not guilty by reason of insanity for hacking at several people with a machete in a shopping mall. Each side had retained a psychiatrist for expert testimony on the issue of the level of security appropriate for the facility in which he would be placed. After becoming more and more annoyed with the direction of the prosecutor’s interrogation of his own expert, despite overruling most of my objections, the judge called both counsel into chambers.

Standing before the judge's desk, we both knew that at least one of us, perhaps both, was about to take some heat. This was obvious because the judge kept himself, and us, standing.

“Money talks, bullshit walks,” he said, looking first at me, then at my opponent.

For anyone not politically aware in 1980, the expression was coined by Angelo Erichetti, once Mayor of Camden, New Jersey, during his prosecution in the ABSCAM (a contraction of “Abdul scam”) case where FBI agents posed as employees of a non-existent sheikh and got various government officials, including Erichetti, to take money in exchange for favors. Erichetti was sentenced to eight years for his involvement.

We were in a courthouse in New Jersey, where Erichetti’s failings still created raw emotions in many politicians who felt his taint had spread to them, but neither the prosecutor nor I thought we were going to have a conversation about Angelo Erichetti or his colorful language.

“At least Ensminger’s expert doesn’t sound like he memorized his brief. Can your psychiatrist think for himself?”

The prosecutor cleared his throat. “Well, my brief probably reflects his thinking more than the other way around.”

“Even the legal terms? He doesn’t know what they mean, but he’s putting them in every chance he gets. If I needed legal advice, I’d ask one of you. On second thought, I wouldn’t.”

“Well, I had to describe the case to him,” the prosecutor continued searching for a way to leave the room. “I suppose I used my own terminology, which he picked up.”

The judge made a derisive snort, but he had cooled slightly. He looked at me again.

“Part of your job, if you’re representing your client, is to sell the expert to me, or the jury, but it’s just me here, unfortunately for both of you. Tell your guy to think for himself or I’m throwing him out. I’ll be out after I call my wife, which will probably not put me in a good mood. Make me happy, ---------.”

“Yes, your honor,” my opponent said.

The judge looked at me.

“Yes, your honor,” I chimed. I wasn’t sure if the same warning applied to me, since my witness had left the stand the day before and there had been no threat to exclude his testimony.

I lost the case, by which I mean that I was unsuccessful in moving my client from a maximum security ward in a mental hospital to a halfway house. Despite the interaction I’ve just described, the judge’s order made my expert sound like the weaker witness. Perhaps he was, in the judge’s opinion, but I thought then, and I think now, that the judge needed a way to reject my expert and accept the prosecutor’s. It meant he was not making the decision on his own and he didn't want to be responsible if my client came across another machete.

A recent case concerning a dog’s alert in Union Station, Chicago, included a scathing evaluation by the court of two experts. Counsel for individuals suspected of drug activities had not sold them to Judge Elaine E. Bucklo of the federal district court for Northern District of Illionois.

Incident at Union Station, Chicago

DEA Task Force Agent Officer Romano, searching the passenger manifest of a train scheduled to depart Chicago’s Union Station for Seattle on December 6, 2002, noticed that a passenger, Vincent Fallon, had purchased a one-way, first class ticket with cash less than 72 hours before departure, which fit a drug-courier profile.

Romano and another DEA agent, Officer Terry, approached Fallon’s compartment, identified themselves, said they were conducting a routine check, and asked if they could ask a few questions. Fallon complied. The officers asked if Fallon was carrying drugs, weapons, or large sums of money, to which he replied he was not. Romano noticed Fallon was sweating.

Fallon said that the backpack and briefcase in the compartment were his, and consented to a search of the backpack. Romano then reached into Fallon’s compartment and picked up the briefcase. “Finding it locked, he asked Mr. Fallon about its contents.” Fallon said he did not have a key to the briefcase and that he opened with a knife, but that it only contained personal effects. Thus, Romano attempted to open the briefcase very early in the encounter before probable cause could have been established.

On further questioning, Fallon said the briefcase contained about $50,000 in cash, with which he said he planned to purchase a house in Seattle. Romano told Fallon that the briefcase would be seized and Fallon himself detained and asked him to come back into the station where he was frisked, fingerprinted, and photographed. The interaction had developed into an investigatory stop. In a suppression hearing, it was found that a Miranda warning had not been given to Fallon 361 F.Supp.2d 757) (N.D. Ill. 2005).

It was later learned that neither the briefcase nor the money belonged to Fallon but rather to Nicolas Marrocco, who had given the briefcase to Fallon to deposit in a safe deposit box in Seattle. Marrocco, when later challenged to explain the source of the cash, was largely unable to do so. (Another stage of the case determined that Marrocco owned the funds, but the connection of the funds to drug trafficking had not then been established. 494 F.Supp.2d 960 (N.D. Ill 2007).)

Romano requested that a drug detection dog be brought to the station. Before the dog arrived, Romano used a knife to open the briefcase and saw that it contained bundles of cash. He closed it without removing its contents. What was the point of opening the briefcase at this stage, given that the dog would soon arrive and an alert would provide a sufficient reason for opening the case? The effect of opening the case could have been to move air inside the case to the outside, making it easier for the dog to detect the odor of drugs, though there is no evidence that this was why Romano did it. The issue should have been of concern to counsel for the claimants.

Chicago Police Canine Officer Richard King arrived at the station. “After a brief discussion with Officer Romano, during which Officer King observed the briefcase containing the money, Officer King left to retrieve his dog, ‘Deny.’” Viewing the potential target by the handler should not have been permitted. This informed King that the dog would be sniffing for currency and gave him a visual clue about the size and shape of the object that Deny would be given the chance to alert to in the next stage of the investigation. Knowing the size of the case gave King some idea of what sort of space would be necessary to hide the case, and where it could not be hidden, which raises the issue of cueing as to the subsequent sniff.

Romano hid the briefcase in the “roll call room,” which contained a counter top beneath which were storage cabinets with hinged doors. The briefcase was placed in one of the cabinets. Officer King and Deny then entered the room and King commanded Deny to search for drugs. Where was Romano at this point? One of the experts later suggested he was within sight of the dog. If so, third-party cueing is possible. Romano could have avoided this problem by having someone else hide the briefcase. Arguably, the dog should have been given a zero trial, as would be done in a scent lineup, by entering the room first before the briefcase was hidden in it.

It is not clear why Romano hid the briefcase. Some sniffs of packages and luggage have involved putting the item in a room or row of similar packages, including packages containing currency, but here the idea may have been to try to avoid cueing since King had seen the briefcase and knew something about its contents.

“Whether Deny went straight to the cabinet containing the briefcase or, instead, sniffed about the roll call room before proceeding to the cabinet is in dispute. But the evidence is uncontroverted that Deny ‘alerted’ to the cabinet door by scratching and pulling at it, then, after opening the cabinet door, alerted to the briefcase itself by scratching and biting it.”

Deny did not alert anywhere else in the roll call room. Counsel for the claimants argued that Deny did not go straight to the cabinet where he alerted, but the judge correctly noted that this was immaterial as a systematic search of the room before alerting did not indicate any failure on the canine team’s part. Ironically, counsel for the claimants might have made a stronger argument by suggesting that Deny went straight to the case because he was matching the odor of Romano, whom he had been near, to Romano’s scent on the briefcase, which Romano had tried to open and carried for a brief period. Thus, it could have been argued that the investigation had turned into a sort of tracking test or article search.

In challenging the canine evidence, the claimants seeking to avoid forfeiture of the cash argued that there were three genuine factual disputes regarding that evidence:

(1) Whether Deny was properly trained and certified to discriminate between innocently contaminated currency and currency that has been used in connection with a narcotics transaction.
(2) Whether Deny alerted to the odor of methyl benzoate or instead to the odor of circulated currency innocently contaminated with cocaine.
(3) Whether the methodology of the “sniff-search” in this case adequately protected against cross-contamination or the possibility of a false positive alert.

The court, in denying a previous motion for summary judgment by the government, had noted that the government admitted in its reply supporting that motion that "the dog sniff evidence is the sine qua non of its case...." The phrase "sine qua non" seems to suggest that the canine evidence here is more than corroborative, being almost the government's entire case. The court, while denying the government's motion at the time, did so with leave to file a renewed motion supported by expert evidence regarding the sniff, as well as challenging the claimants' expert evidence, which consisted of two canine experts. The court seemed to be showing the way that the government could win on motion, without having the canine evidence examined in a full trial, which is what has now happened.

Training and Certification

The court found it “undisputed” that the canine team had received 500 hours of training, including narcotics detection for marijuana, cocaine, heroin, ecstasy, and methamphetamine, and had been certified in 1998 and remained so until he retired in 2007. In pre-certification training, the pair conducted 116 sniff searches in which he alerted to the presence of drugs or money. In training sessions where currency was sniffed, Deny alerted to tainted currency but not untainted, circulated currency.

The court dismissed a challenge to the government’s evidence as follows:

“Claimants purport to dispute this evidence based on their expert, Mr. Kroyer's, own interpretation of the 'dog log.' … But Mr. Kroyer has no personal knowledge of that document, and his interpretation of it is insufficient to controvert the sworn testimony of Officer King, who created the log and participated in the events it records, and who affirmatively disputes Mr. Kroyer's interpretation. The evidence is thus undisputed that on three separate occasions during his training, Deny alerted to currency contaminated with narcotics but did not alert to untainted currency.”

The wording is a little curious in reaching the conclusion that the evidence was undisputed because the expert had no personal knowledge. A log book should be sufficiently understandable that "personal knowledge" would not be necessary to understand it. In any case, it would seem that there was in fact a dispute. It should be perhaps be noted here that where a dog fails to alert to currency, the currency will often not be tested for cocaine residue, meaning that a false negative could easily go undetected.

Field Records

The court states that after certification, Deny “performed approximately 309 sniff searches (in training and in the field) and gave 259 positive alerts. In fifty searches, Deny did not alert. Of Deny’s 259 positive, post-certification alerts, ninety-three were in training exercises. Eighty-two of these revealed hidden drugs, and ten revealed drug-scented currency.”

The numbers should have been explored more by counsel for the claimants. The dog had a nine-year working life, from 1998 to 2007. The average training time per month is probably around 16 hours (four hours/week), or about 192 hours per year, and 1,728 hours over a career of nine years. It would seem that with this much training (more or less), Deny should have only had the opportunity to alert to actual drug odor 93 times, about once a month. This is a very low number. Counsel for the claimants should have explored what amount of narcotics training was really going on.

The court then refers to the team’s statistics in the field:

“Deny also made 166 positive, post-certification alerts in the field, forty-five of which revealed narcotics. There is a dispute over whether Deny made 113 or 115 positive alerts to currency in the field, but this dispute is immaterial because even if Deny alerted 115 times to currency (as claimants contend), and even if every single one of these alerts was a false alert, it is nevertheless undisputed that drugs or currency known to be tainted with the scent of drugs was found after 137 of his 259 positive, post-certification alerts (ninety-two times in training and forty-five times in the field), making his reliability no less than 52.8%.”

The court’s approach was to look at all post-certification alerts, whether training or field alerts, and calculate the dog’s accuracy based on the finding of drugs and on alerts to currency known to be drug-tainted. If, instead, one were to look solely at field alerts which revealed narcotics, one would have 166 alerts resulting in the discovery of drugs in 45 instances. This would be an accuracy rating of 27.1%, excluding possible residual odor alerts. Instead, finding an accuracy rate of 52.8% (or 67.5% if pre-certification results are included), the court concluded that this was sufficient to meet the standard the Seventh Circuit set in U.S. v. Limares, 269 F.3d 704 (7th Cir. 2001).

Experts for the Claimants

It was mentioned above that the court rather dismissed Kroyer, an expert for the claimants, but it gets much worse for him:

“Furthermore, Deny's reliability is not materially challenged by claimants' putative experts. David Kroyer, a dog trainer whose esoteric credentials are summarily, and rather unhelpfully, described in the first paragraph of his short affidavit, … first suggests that Deny's certification by the Chicago Police Department is deficient, opining that it is 'normal' for dogs to be certified by outside agencies. Mr. Kroyer further opines that Deny's certification, or his handler's affidavit, should reflect which odors he is certified to detect, and the standards he is required to meet for certification…. Mr. Kroyer then opines that Deny's training was deficient. None of these opinions materially controverts the evidence of Deny's reliability, however, which is based not on his paper credentials, but on his actual performance in training and in the field…. Moreover, Mr. Kroyer's opinion that Deny was inadequately trained, is based on his own interpretation of the 'dog log,' a document of which, as noted above, Mr. Kroyer has no personal knowledge. In short, Mr. Kroyer's opinions relating to Deny's certification and training do not controvert the government's evidence of Deny's reliability.”

Putative experts? There is more “opining” here than I have ever seen in a single paragraph. The court reproduces Kroyer’s “unhelpfully described” “esoteric credentials” from his affidavit:

“Owner, President, Certified Training and Behavior Consultant, Master Trainer and Training Director of Canine Headquarters Police K9 division. Eleven years training experience. Placed green and finished K9 detection dogs for Law Enforcement, Military, and Homeland Security/Border Patrol. Trained and placed handlers for Law Enforcement, and Military. One Hundred percent (100%) passing rate under NNDDA certification. Conducted seminars and workshops nationally and internationally on detection dog training. Assisted in developing a program for mine detection rats at Bogota University, Columbia (sic).”

Certainly Kroyer needs a marketing consultant, and he should at least spell out National Narcotic Detector Dog Association, but I do not recall ever seeing such contempt for an expert.

Dr. Lawrence J. Myers of Auburn did not fare much better. The court quotes from Myers’ affidavit, which states that there “are no records of replicated, controlled, randomized, double-blind tests performed to determine reliability.” Moving on, the court then states:

“And Dr. Myers' opinion suffers from additional flaws that do not require expert rebuttal to perceive. For example, Dr. Myers suggests that Deny's ability to distinguish contaminated currency from general circulation currency—despite having been established on three separate occasions in Deny's pre-and post-certification training exercises—should be disregarded because ‘[t]here is no evidence of numerous non-alerts by the canine, Deny, to circulated U .S. currency.’ This suggests, of course, that some number of non-alerts to circulated currency would be enough to establish Deny's ability to distinguish between tainted and untainted currency. But if three times is not sufficiently ‘numerous,’ how many times would be? Ten? Fifty? One hundred? The Myers affidavit verily begs the question, but then proceeds to its conclusion that Deny's alert is unreliable without even the hint of a response. For the same reason, Dr. Myers' opinion regarding the need to ‘proof’ a detector dog off circulated currency—even were it not in conflict with the court's holding in Limares (reliability based on ‘how dogs perform in practice,’ not ‘how they were trained and “proofed off” currency’), … and based largely on the discredited ‘currency contamination theory’ (more on this below)—rings hollow on this record.”

The court is correct that an alert should not be rejected merely because there were not enough opportunities in a dog’s history to make false alerts, when there is no indication that false alerts would necessarily be made. Myers is correct, however, that a narcotics detection dog’s training should regularly involve proofing, such as using currency line-ups in which only some of the stations are tainted.

Myers then raises the possibility of cueing, which the court also dismisses:

“Nor does Dr. Myers' discussion of scientific studies involving ‘the potential for cuing’ by a detector dog's handler or other individuals raise a genuine dispute over the reliability of Deny's alert in this case. Whatever the validity of such studies, the only bases Dr. Myers cites for his opinion that this particular alert may have been a response to some ‘cue,’ rather than to Deny's detection of the scent of narcotics, are that ‘the handler knew and saw the object of the search,’ and that the officer who had hidden the briefcase was ‘visible in the doorway of the room in which it had been placed.’ There is no dispute, however, that Deny's handler, Officer King, did not know where the briefcase was hidden, and thus could not have ‘cued’ Deny to alert to the cabinet door. And, without any explanation of how Officer Romano might have ‘cued’ Deny from the next room (much less any evidence that the dog actually saw the officer), the mere possibility that Officer Romano may have been visible through the doorway is far too speculative a basis for concluding that Deny's alert was the result of the officer's improper influence, rather than the dog's detection of narcotics.”

Myers was right to raise the issue of cueing, as we did previously in our analysis. If King was visible in the doorway, the possibility of third-party cueing is high, and King already knew the size of the object that had been hidden in the room. As the authors have discussed in a paper on cueing posted on the website of the Animal Legal and Historical Information Center of Michigan State University, cueing by no means only comes from the handler’s knowledge. Anyone visible to the dog can make a motion that can cue a dog.

The court summarizes the opinions of the experts of the claimants by saying that the effort to challenge Deny's training and certification "simply do not controvert the government's proffered evidence of Deny's reliability." It must be remembered that this conclusion is not one made after trial evidence, but rather on a motion that, in this case, will obviate the need for a trial. Although the effort of these experts to "controvert the proffered evidence" may not have been well stated, controverting there surely was.

Innocently Contaminated Currency?
The court also rejected an innocently contaminated currency argument, relying on U.S. v. $30,670 (7th Cir. 2005). a case the district court said “puts to rest any argument that dog sniffs are universally unreliable based on the ‘currency contamination’ theory.”

Finally, counsel for the claimants argued that cross-contamination might be involved, that is that “Deny’s alert may have accurately detected the odor of narcotics, but that the briefcase and currency seized from Mr. Fallon became contaminated with that odor only after it was seized.” The court rejected this argument in the absence of supporting evidence. It is not that the possibility of contamination did not exist, but it must be acknowledged that the claimants had the burden of producing evidence that there might be some such contamination. It is not clear whether claimants were suggesting some fraud on the part of the police or considered that the area where the briefcase was hidden held cocaine residue or that somehow residue was accidentally put on the briefcase. Perhaps they intended to suggest that Romano knew that it would reflect well on him if the large amount of currency he had seen were forfeited, though they would have needed more than just possible motive and opportunity to get anywhere with this.

Was Summary Judgment Appropriate?

The court concluded that “the opinions of claimants’ experts do not raise a triable dispute as to the reliability of Deny’s alert. Accordingly, Deny’s alert to the briefcase supports the government’s claim of ‘a substantial connection between’ the seized funds and the commission of the drug-related offense.” Rejecting other non-canine-related arguments, the court determined that “the totality of circumstances in this case leads to only one reasonable conclusion—that the subject funds were substantially connected to a narcotics-related offense—the government is entitled to summary judgment of forfeiture.”

There was other evidence that the currency was involved in narcotics activities, such as the inconsistent and illogical stories provided by the claimants, yet the court and the government accepted that the canine evidence was fundamental to the government's position. That evidence, though not handled under the best of standards, did produce an alert. The possibility of cueing existed and claimants, though not presenting their evidence as well as might have been desired, should have had the opportunity to explore that issue and the dog's reliability at trial.

U.S. v. Funds in the Amount of One Hundred Thousand and One Hundred Twenty Dollars, 2011 WL 4686066 (N.D. Ill. 2011). For an extensive discussion of the history of currency sniffs, including probable cause issues, see Chapter 15 of Police and Military Dogs.

This blog was written by John Ensminger and L.E. Papet.

Sunday, October 23, 2011

Station Identification as Forensic Procedure? California Court Strains Tracking Law in Drive-By Shooting Case

Tony Walker was sitting in a parked car in the afternoon on May 7, 2007, when a Dodge Intrepid came past with three bald-headed Hispanic men, at least one of which, according to a witness, had a gun. Multiple shots came from the Intrepid, killing Walker and Jamal Varcasia, who was running across the street at that moment.

The witness, Raeshel Shay, was frightened and did not immediately report what she had seen. Later she was in custody for having a fraudulent gift card when, during a monitored phone call to her sister, she mentioned the shooting. Using photographic six-packs, she identified Jose Elias as the driver, Joseph Ruiz as the rear passenger, and Eric Perez as the front passenger. At trial, she identified them again but said Elias had been in the back seat and Perez had been the driver.

Elias and Ruiz were also identified by Johann Montoya as being in a car near the scene of the May 7 shooting, though Montoya made this statement to an officer after he was beaten by some of the men in the car on or about May 11. At trial, Montoya denied making a statement about the May 7 incident.

Bullet casings were recovered from the scene of the murders. All casings were fired from the same Remington Peters 9mm Luger, and probably all the recovered bullets and fragments were fired from that weapon as well. A .32 caliber handgun was recovered later during the investigation at a different location. This was not the murder weapon but there was some evidence that a second gun had been in the Intrepid on May 7 and the police considered it possible that this gun had been in the car during the shootings.

Station Identification

A station identification was performed on May 16, 2007, by Ted Hamm, a civilian handler working for the police, and his dog, Bojangles. Detective Grant Curry had three detectives take the three defendants—Ruiz, Elias, and Perez—to the third floor of the Pasadena Police Station and put them in different rooms. The opinion states:

“Neither Detective Curry nor Hamm knew where on the third floor the defendants were. Detective Curry then gave Hamm three bullet casings recovered from the crime scene and the .32 caliber gun. Using a Scent Transfer Unit (STU), described as a modified dust buster, Hamm extracted scent from the three casings and placed it on a sterile guaze pad. Hamm did the same with the .32 caliber gun, placing its scent on a different gauze pad.”

It is not clear why Hamm felt it necessary to place scent from all three casings on the same pad since more than one person may have loaded different rounds and separate pads from each casing might verify this. In any case, the scent pad created from all the casings was used by the dog to identify two individuals. There was no discussion concerning whether this might indicate that one of the rounds was loaded prior to the incident on May 7, which could argue that one of the defendants might not have been present during the shootings.

“Hamm brought his dog, Bojangles, up the elevator to the third floor and let Bojangles smell the pad containing the scent from the casings. Bojangles immediately went down the hall, making turns, and led Hamm and the detective to Perez. After Bojangles smelled a pad with the scent from the casings again, Bojangles this time led them to Elias. But when the scent pad was reintroduced a third time, Bojangles did not move.”

Why did the dog not move after being scented a third time? Presumably we are to understand that the dog had completed its tracking, but this was not explained. Did Hamm and Bojangles begin each sniff in the same location? Once the dog alerted to a suspect, was the suspect removed? Was a replacement put in the same place as the identified suspect had been? How many choices did Bojangles actually have in terms of suspects or individuals who looked like suspects after being scented each time?

A third identification took place in the Pasedena Police Station parking lot:

“The other detectives then took Elias, Ruiz, and Perez to the parking area, and Hamm had Bojangles smell the scent pad from the .32 caliber gun. Bojangles led to Ruiz.”

This change of location should also be explained. A parking lot identification has some of the same concerns as a station identification and most of the same questions raised above should have been of concern to the police and defense counsel.

A jury convicted Elias and Ruiz of the murders in February 2010. Elias received a sentence of life without possibility of parole plus two consecutive 25 year terms. Ruiz was sentenced to two life terms, each with a 15 year minimum plus two consecutive 25 year terms.

Canine Evidence at Trial

In a pre-trial hearing, the court determined that a scent transfer unit (STU) is, in the words of the appellate court, “generally accepted in the scientific community as a collection device and that it can pick up scents from items that have gone through volatile events or scents.” The trial court also determined that a foundation had been laid for the handler and the scent dog.

The appellate court found the assignment of error of the defendants regarding the canine evidence “imprecise,” but concluded that they were objecting to the STU on scientific grounds, but to the dog scent identification as lacking a proper foundation. The defense argued at trial that it had not been established that an STU could pick up multiple scents. It is not clear where the defense was going with this argument. Did someone on the defense team think that an STU selectively picked up only certain scents? In any case, the defense seems to have dropped this line, but then suggested that a dog could not differentiate multiple scents. The appellate court called this a foundational issue. In any case, canine detection is based on the knowledge that a dog can be scented to one odor and thereafter distinguish this odor from others that might be present at the same time. This was established scientifically by Otto Kalischer more than a century ago. Dogs can also be taught to remember multiple scents (up to 17 separate individuals were distinguishable by dogs in one experiment) and will continue to distinguish them for much longer than was required for the testing discussed here.

The appellate court concluded that the trial court did not abuse its discretion in finding that the prosecution established a foundation to admit the dog scent identifications. The court analyzed the history of dog tracking and scent lineups in California, describing cases reviewed extensively in Police and Military Dogs, including People v. Willis, 115 Cal.App.4th 379, 9 Cal.Rptr. 235 (2004), a station identification in which a California appellate court determined the admission of the identification using an STU was clear error, though harmless because of the other evidence. Despite the rejection of canine evidence in Willis, the appellate court here found that the testimony of the experts had provided an adequate foundation for admission of the scent identification evidence:

“We find that the trial court did not abuse its discretion in finding that the People laid an adequate foundation to admit the dog-scent identification evidence through the testimony of its expert witnesses: Dr. Kenneth Furton, a professor of Chemistry and Biochemistry; Rex Stockham, an FBI supervisory special agent who is the forensic canine program manager and research program manager for the evidence response team unit; and Ted Hamm, a civilian contract canine handler primarily employed by the Los Angeles County Sheriff's Department and Bojangles's handler and trainer.”

Hamm and Bojangles

The defense objected that there were no negative scent pads used, i.e., negative controls or zero trials in which the dog was scented on a pad unconnected with the case to verify that the dog would not start tracking if there was no scent related to the pad to be followed. One of the experts described his use of a negative scent pad to ensure his dogs are working properly, before the actual trailing is done. The court rejected this argument as follows:

“Using such ‘controls,’ however, is not common practice, and the only law enforcement agency that uses controls is the FBI. Hamm's failure to use a negative scent pad did not therefore establish that the procedure he used was a bad practice.”

Hamm is familiar with negative controls. In a 2005 case, the Los Angeles Superior Court cited several experts (including Stockham) regarding the value of negative controls and said that Hamm, a handler in that case as well, “uses negative checks and Knight responds reliably.” People v. Salcido, Docket No. GA052057 (Los Angeles Superior Court 2005). The authors are aware of law enforcement agencies other than the FBI using negative controls, but perhaps the court is correct as to California police practice.

The defense also argued that Hamm’s procedures were faulty because he only used one dog, not two. The court also rejected this:

“Stockham, however, merely testified that while he prefers to use more than one dog in his investigations, he uses single dogs too. Stockham did not testify that the only generally accepted practice is to use two dogs. In fact, Stockham praised Hamm as ‘very competent’ and in the ‘top echelon of experienced handlers in the U.S.’ He considers Hamm to be a leading expert in scent trailing.”

In a properly conducted scent lineup, it is our opinion that several dogs increase the reliability of an identification. (See draft paper of Ensminger, Jezierski, and McCulloch, pp. 58-63, describing how requiring three or more dogs for a positive identification significantly reduces the number of identifications, but also reduces the chance of a misidentification almost to zero).

The defense then argued that a finding of adequate training and reliability could not be made because Bojangles was not certified. The court rejected any certification requirement, and concluded that one of the experts in the case, Furton, though mentioning certification, had not meant that it was required:

“Defendants incorrectly assert that Dr. Furton testified that a dog must go ‘through certain blind tests and reach a set percentile of correct identifications’ to be certified in California. What Dr. Furton actually said was a California organization he belongs to requires a training log, blind tests, and a certain percentile of correct identification to certify a dog; he did not testify that California has a certification standard or process. Rather, there is no national standard for certification or training of scent dogs, and standards vary from state to state. Neither California nor the Los Angeles County Sheriff's Department have requirements for certifying trailing dogs. The Scientific Working Groups on Dogs and Orthogonal Detection Guidelines (SWGDOG), an international working group funded by the FBI, is developing best practice certification and assessment guidelines for police-related canine disciplines.”

Hamm is presumably not opposed to certification. In Salcido, he used a dog named Knight that had been certified in 1998, apparently with the California Bloodhound Handlers Coalition, though Hamm did not purchase the dog until 2000. The court then summarized the position of another expert, Rex Stockham of the FBI, regarding training and certification:

“Although there are no national or specific state standards for training or certifying a scent dog, Stockham described his training process and how he determines a dog's reliability. Stockham keeps detailed training records to compare and contrast the milestones a dog should reach. To determine a dog's reliability, he relies on frequent observation of teams and blind testing, which the FBI routinely conducts. Before Stockham considers deploying a dog for a job, he subjects it to a series of tests and controls. The ‘best practice’ is for someone not routinely involved in the dog's training to assess its readiness for fieldwork. But a dog's handler also has the ability to determine whether the dog is positively or negatively trailing a scent. Once a dog is ready for fieldwork, the dog still requires maintenance training, and the industry standard is a scent dog should have 16 hours of maintenance training, although some people in the field believe that once a month is sufficient.”

Although some of Stockham’s comments would seem to provide a model different from what Hamm actually used, there was no further discussion of the disparity.

The defense also pointed out that Hamm had lost training logs dated before 2008 in a computer crash and argued that this meant that “Bojangles’s training and abilities were merely anecdotal.” The court responded:

“We disagree. Hamm testified extensively and specifically about his and Bojangles's background. Hamm has trained bloodhounds for 21 years and participated in over 2,000 investigations. He begins training a dog when it is a puppy. The dog first watches a person run away and then follows. Then the person drops an object that has his or her scent on it. Eventually, the person goes out of the dog's sight, and the dog must transition from visually following the person to using its nose to find the person. The length, age, and complexity of the trail is slowly increased. Hamm also works blind, meaning he doesn't know where the person is or what the result should be. The training process takes about two years, although a dog continues to do maintenance training even after it is ready to work. He tries to do maintenance training at least once a week and more often if he is able.”

Hamm is no doubt busy. In a 2008 opinion, the court cites the trial court’s description of Hamm as having been involved in 1,200 cases. People v. Alonzo, 2008 WL 2248628 (Ct. Appp. 2008). This suggests that Hamm works on at least 200 investigations a year, a significant number for a contract worker.

The absence of training records is not made trivial by a restatement of the training procedures preferred by the handler of the dog. Hamm has testified in many cases, and it would seem likely that prior records might have been introduced in other cases where he testified, but this possibility was not discussed. The court continued regarding Hamm’s training regimen:

“Hamm trained Bojangles in this manner, on trails fresher than 48 hours, to discriminate between human scents and to identify only the scent he's given. Bojangles has also been trained in different environments and on different surfaces. He's been trained with the STU and on a variety of scent articles, including spent cartridge casings. Bojangles frequently participates in a weekly maintenance training session. Hamm has been doing casework with Bojangles for three or four years with no history of falsely identifying targets in either blind testing or casework. Bojangles has confirmed cases, which are cases in which the dog's conclusion is confirmed by other sources, for example, witness statements, confessions, and DNA. To Hamm's knowledge, Bojangles has no confirmed negatives, where the dog found a scent and trailed to a subject who did not match the scent.”

The court apparently accepted Hamm’s testimony that Bojangles had “no history of falsely identifying targets,” and that “[t]o Hamm’s knowledge, Bojangles has no confirmed negatives.” Not many handlers could say this about the entire history of any dog. A footnote explains that “Hamm has been able to confirm approximately 40 of Bojangles’s cases out of 300.” This meant that the defense apparently had access to about 13% of the dog’s field work.

The defense also argued that there was no evidence that a bluetick coonhound had particular scent abilities. Here, the court correctly observed that “to the extent a dog’s breed is related to its ability to discriminate scents, there has been an insufficient foundation….” Coonhound mixes have been effective trackers since the nineteenth century.

Thus, the defense had no access to a significant part of the dog’s training history or to the vast majority of its field work. Consequently, neither did the experts. A good part of the prosecution’s case, therefore, rests on the testimony of the handler, to which the court was quite receptive.

A Florida court recently excluded canine evidence where adequate field records could not be supplied (though the records there were more substantial than those available here), stating that if “an officer fails to keep records of his or her dog's performance in the field, the officer is lacking knowledge important to his or her belief that the dog is a reliable indicator of drugs.” We suggested in that context, which could have involved the exclusion of evidence in the future from a large number of canine teams that had no advance notice that additional recordkeeping would be required, that the Florida court should perhaps have fashioned some interim means of qualifying a dog. The solution in the case here would have been to allow independent testing of Hamm and Bojangles prior to the admission of the canine evidence. We suggest that, if such an approach were accepted, the testing should consist of an independently monitored scent lineup, since duplicating conditions on the third floor of the Pasadena Police Station would be impossible with any scientific objectivity.

Human Scent

The court then discussed the uniqueness of human scent, the ability of dogs to pick up scent from an object, and the ability of dogs to differentiate multiple scents on an item. Relying primarily on the experts, the court correctly determined that these elements were supported by scientific findings as accepted by prior California cases.

Instruction to the Jury

California provides for standardized instruction in tracking cases, and the CALCRIM No. 374 was used for this purpose:

“You have received evidence about the use of a tracking dog. You may not conclude that the defendant is the person who committed the crime based only on the fact that a dog indicated the defendant. Before you rely on dog-tracking evidence, there must be, one, evidence of the dog's general reliability as a tracker, and, two, other evidence that the dog accurately followed a trail that led to the person who committed the crime. This other evidence does not need to independently link the defendant to the crime. [¶] In deciding the meaning and importance of the dog-tracking evidence consider the training, skill and experience, if any, of the dog, [its] trainer or [its] handler together with everything else that you learned about the dog's work on this case.”

The defense pointed out that the case at hand was not a typical tracking case in that the dog did not follow a scent from the crime scent to a location where the defendant had been or was found, yet the instructions were issued without objection. The court acknowledged that the situation was not typical:

“Although CALCRIM No. 374 might seem more appropriate to [tracking situations], it is not inapplicable to a station identification. The instruction simply says that there must be ‘other evidence that the dog accurately followed a trail that led to the person who committed the crime.’ (Italics added.) Bojangles smelled scent from the .32 caliber gun and trailed to Ruiz. Although there was no physical evidence that a .32 caliber gun was used during the crimes (only nine-millimeter bullets and casings were recovered from the crime scene and from the victims' bodies), Raeshal Shay testified that she might have seen two guns; hence, it was the prosecution's theory that Elias and Ruiz committed the crimes together and that there was a second gun, possibly the .32 caliber gun found at Ruiz's girlfriend's house. The dog-scent evidence therefore merely connected Ruiz to the .32 caliber gun; there had to be other corroborating evidence that Ruiz was the person who committed the crime.”

The court found the “other corroborating evidence” in other testimony regarding the actions of the defendants, and after reviewing gang-related issues, affirmed the conviction.

A Hybrid Procedure?

There was far too little discussion of the station and parking lot identifications, and too little consideration of how they were conducted. A floor plan of the third floor of the Pasadena Police Station would have been helpful in determining what sort of tracking was really involved. How many rooms were on that floor? How many suspects were on the floor? If there were only a few suspects on the floor, then the possibility of cueing is not negligible. Did any officers on the floor, either with the defendants or otherwise, know why the dogs were working there? If so, the possibility of third-party cueing was present, a factor that scientifically conducted scent lineups remove by insisting that no one within sight of the dog know the correct station in a lineup.

If the dog was not trained with negative controls, it may have performed its work in expectation of a reward. How many individuals not in police uniforms and dressed as gang members were actually on the third floor that the dog could choose from? In a scent lineup, the possibility of randomly correct identification increases as the number of stations in the lineup decrease. Was this issue considered?

The tracking aspect of the procedure also needs to be explained in more detail. Did all the defendants on the floor use the same hallway and follow the same path except when entering separate rooms? Did any of the suspects enter any rooms where other suspects were placed, even if only temporarily? Did the dog use the same hallways and passages as the defendants? Did any defendant enter a room through a passage where the dog could not sniff? If so, this begins to look like a modified scent lineup rather than a modified tracking or trailing.

Was the procedure videotaped? Although scent lineups should, in our opinion, be videotaped, it is seldom practical to videotape a tracking or trailing. Here, however, given the limited space and the advance placement of the suspect, it would have been advisable to use video cameras. If this is to continue to be the Pasadena Police Department’s method of scent identification, stationery video cameras should be installed in the third floor in places that will capture the movements of the suspects as well as those of handlers and dogs.

The presence of other individuals than those directly involved in the identification should have been recorded. Certainly this would be required in a scent lineup. So who was present in the hallways? What did they know? Were doors to the rooms with the defendants open? Were all other doors on the floor open as well? Could individuals in the hallways see the dogs when they entered the rooms and presumably alerted to the suspects? If only the doors to the rooms with the defendants were open, there was little possibility for randomness in the dog’s indications.

There were other differences from tracking. In most tracking situations, the dog has the possibility of following a trail that ends with no suspect in the vicinity. The suspect may cross streams, enter cars, disappear in countless ways. There is a good chance that the dog will abandon the trail. The possibilities of what can happen in an outdoor tracking are often infinite. Here it appears the handler knew there was a correct choice to be made in a finite space, much as if the handler was guaranteed that one station in a lineup would be a positive match. This is another reason why some sort of negative control should have been performed, one where Hamm would not know that there was no match to be found on the floor, but where individuals who looked like suspects were present in some of the rooms.

Some research has indicated that a longer trail reinforces the dog’s ability to identify a suspect as the individual being tracked. (Police and Military Dogs, p. 62) The trails here were presumably very short. One study found that dogs often follow the correct trail but fail to alert to the correct party at the end. In one segment of that study, dogs followed the correct trail 100% of the time, yet alerted to the correct “suspect” only 73% of the time. Did Bojangles ever alert to anyone besides a suspect? Apparently not, yet the fact the defendants were accompanied by escorting detectives raises the possibility that the dog was not always tracking a defendant. Without a videotape the only witness whose testimony could be elicited on this question was apparently Hamm. Did defense counsel obtain detailed accounts from the defendants of what happened on the third floor of the Pasadena Police Station? Even if so, would they have understood that they were seeing an alert to someone besides themselves?

Hamm and the Pasadena Police Department have begun to use station identification as a procedure. This formalized station identification fits neither the parameters that are applied by SWGDOG or any certifying organization to a scent lineup or most tracking environments. The court rejected that the argument that the procedure used by Hamm had to be vetted as a novel scientific approach. That may be correct because it was an amalgam of two generally accepted procedures. Yet because it was an amalgam it must be analyzed for what it is, not assumed to pass as a tracking with insignificant variations.

Station identifications have often occurred accidentally. The trail goes cold, the dog stops tracking and is returned to the station, where a suspect has been brought in on other evidence, the dog picks up the scent inside the station and resumes tracking, then alerts to the suspect. Here this result was not accidental but expected.

Hamm and Pasadena police officials have used the third floor of the Pasadena Police Station before. See California v. Smith, 2011 WL 1350762 (Ct. App. 2011). Were the defendants put in the same rooms as those in prior cases? If so, this also raises the possibility that Hamm may have expected the defendants to be in certain rooms on the floor. Were these rooms ever sterilized? How often was the procedure on the floor being used? Could anyone be certain that odor from prior suspects was not still present?

There are reasons why scent lineups must be so rigorously conducted in order to be fair, and why their use in some countries in Europe (the Netherlands, Poland) has been so considerably restricted. Hamm’s station identification procedures were not required to meet any scent lineup standards because the court accepted that this was a tracking situation. Yet the variations from tracking were sufficiently great that it must be asked why scent lineups were not used, since these could involve parameters that would assure a high level of reliability.


The case is disturbing at a number of levels. The court affirmed the reliability of Bojangles based on the handler’s description of the dog’s history, without either adequate training or field records, or any certification of the handler and dog as a team. Although the court was correct that certification can vary from state to state and organization to organization, the presence of records of a certifying organization could have been of considerable assistance in a case where the handler could offer only fragmentary records.

Station identifications have a legitimate place in American legal history, and have resulted in properly admitted identifications of suspects since at least 1918. Nevertheless, the Pasadena Police Department, with the help of California courts, has inappropriately elevated this procedure to a forensic technique. Significant differences of this formalized station identification from a typical tracking situation were ignored in this case, and have given the green light to further use of a procedure that fails to take into account the controls that can assure that a scent lineup is objective. California has here accepted an approach that may far too easily result in misidentifications.

It must be acknowledged that canine evidence is often important in drive-by shootings where witnesses can disappear for many reasons, and California is right to want to preserve the possibility of using this evidence. The solution is to adopt skillfully managed scent lineups, not to use a slapdash cross between tracking and scent lineups.

A larger concern is that if American law enforcement authorities continue to employ poorly designed scent identification techniques, the label of junk science that has been given by the Innocence Project and others to such techniques will stick after a few more reversals and there will be considerable pressure on U.S. courts to stop allowing scent identification altogether. Unfortunately, the junk science label is correct as to most--perhaps all--scent lineups described in any detail in American judicial opinions. It would be a shame to have such a wholesale rejection of scent identification since scent lineups can be made much more rigorous than has been true in the United States so far and could be a valuable forensic technique for law enforcement.

People v. Elias, B224372, 2011 WL 3949808 (Ct. App. 2011). It has been pointed out to us that we should note that this opinion has not been certified for publication and, under California Rules of Court, Rule 8.1115, may not be cited or relied on by a court or party except under limited exceptions. This rule has been the subject of considerable criticism. One commentator noted that "[t]here is no valid reason why litigants should not be able to let a trial judge or appellate justice know how their colleagues decided a case involving similar facts even if that opinion is unpublished." Keshavarzi, M. (May 7, 2010), Daily Journal. In any case, our criticisms are not part of a legal proceeding.

This piece was written by John Ensminger and L.E. Papet.

Wednesday, October 12, 2011

Wolves Likely to Become Fair Game in Most of Wyoming

The Department of the Interior’s Fish and Wildlife Service has determined that the “best scientific and commercial data available indicate that wolves in Wyoming are recovered and no longer meet the definition of endangered or threatened under the Endangered Species Act….” Proposed rule changes are suggested in accordance with this presumed development, though implementation would require, in addition to finalization of the rules, that the State of Wyoming make certain statutory and regulatory changes. The Service assumes, probably correctly, that there will be little or no resistance by Wyoming officials since the changes will mean that wolves will no longer be protected in most of the state.

The plan to delist wolves in Wyoming is part of a trend on the part of the U.S. Fish and Wildlife Service to reduce protection of wolves throughout North America, as discussed here in May.

Comments Sought by U.S. Fish and Wildlife Service

The Service seeks comment on a number of questions on its Wyoming proposal, some of which are troubling, given the conclusions the agency has already reached. The questions are:

(1) Is our description and analysis of the biology, population, and distribution accurate?
(2) Does the proposed rule provide accurate and adequate review and analysis of the factors relating to the threats?
(3) Are the conclusions we reach, including their projection of maintenance of a viable population, logical and supported by the evidence provided?
(4) Did we include all the necessary and pertinent literature to support our assumptions, arguments, and conclusions?
(5) Is it reasonable for us to conclude that Wyoming’s approach to wolf management is likely to maintain Wyoming’s wolf population above recovery levels?
(6) Is it reasonable for us to conclude that Wyoming’s approach to wolf management is likely to provide for sufficient levels of gene flow (either natural or human assisted) to prevent genetic problems from negatively impacting the GYA’s population or the larger NRM metapopulation in a manner that would meaningfully impact viability?

The Service has scheduled a public hearing on the proposal to take place on November 15, 2011, at Central Wyoming College in Riverton, Wyoming. (More information available at 307-855-2000.) The Service is also required to subject its proposal to a peer review panel, which will post its assessment online at As of this writing, the peer review assessment has not been posted.

Endangered Wolf Listings

The Service has in the past listed four subspecies of the gray wolf as endangered:

1. Canis lupus lycaon, the eastern timber wolf (32 Fed. Reg. 4001, March 11, 1967).
2. Canis lupus irremotus, Northern Rocky Mountain gray wolf (38 Fed. Reg. 14678, June 4, 1973).
3. Canis lupus baileyi, Mexican wolf (41 Fed. Reg. 17736, April 28, 1976).
4. Canis lupus monstrabalis, Texas gray wolf (41 Fed. Reg. 24062, June 14, 1976).

In 1978, the Service decided to stop worrying about subspecies and listed the entire species of the gray wolf as endangered in the 48 coterminous states and Mexico. Recovery plans were generated for the Great Lakes area (1978), the northern Rocky Mountains (1980), and the Southwest (1982). Gray wolves were reintroduced into central Idaho and Yellowstone National Park. The distribution of Northern Rocky Mountain gray wolves is shown in the first map, where each number represents a pack. (Double click to enlarge.)

Department of Interior’s Efforts to Delist

In 2000, gray wolves in the northern Rocky Mountains reached numerical and distributional recovery goals, and delistings began until the Service’s actions were contested by environmental groups and overturned in federal courts in Oregon, Vermont, and Montana, in decisions in 2005, 2008, and 2010. Despite its trend towards finding the wolves no longer in need of much protection, the Service fought Wyoming over a plan that the Service said would not ensure the state’s share of the “recovered” gray wolf population. Eventually, with Wyoming making some revisions to its laws and management plan, the Service pulled out of this battle. Again, an environmental group, the Defenders of Wildlife, took the Service to court and won. What happened next is described in the Service’s own words, which makes one wonder if the agency always knows what it’s doing:

“Following the July 18, 2008 court ruling, we reexamined [our findings] and Wyoming’s statutes, regulations, and management plan. This reevaluation considered several issues not considered in the previous evaluation. We determined that the best scientific and commercial data available demonstrated that: (1) The NRM DPS [Northern Rocky Mountain Distinct Population Segment] was not threatened or endangered throughout “all” of its range (i.e., not threatened or endangered throughout all of the DPS); and (2) the Wyoming portion of the range represented a significant portion of its range where the species remained in danger of extinction because of the inadequacy of existing regulatory mechanisms. Thus, on April 2, 2009, we published a final rule recognizing the NRM DPS and removing the DPS from the List of Endangered and Threatened Wildlife, except in Wyoming, where wolves continued to be regulated as a nonessential, experimental population ….” (emphasis added)

In other words, the Defenders of Wildlife and a federal district court were right and the Service was wrong by its own admission. The Defenders of Wildlife were not satisfied, however, and sued again, and won again. A federal district court in Montana said that the Service could not narrow its protection of the Northern Rocky Mountain gray wolf to Wyoming, because allowing protection of only a portion of a species’ range was inconsistent with the Act’s definition of “species.”

Congress got into the fray in 2011 with a provision in the Department of Defense and Full Year Continuing Appropriations Act of 2011, which, after it was signed by President Obama, required the Service to reissue its 2009 delisting rule. The federal law was again challenged, this time by the Alliance for the Wild Rockies, but the luck of the wolves ran out and the Alliance lost the case. The Service then began negotiating with Wyoming on exactly how wolves would be treated in the state, and an agreement was reached for protection, but primarily in the northwestern portion of the state. The second map shows those areas where wolves will receive some, at least seasonal, protection. Everywhere else in the state they are fair game and such of them as are unlucky enough to get to the white space in the map probably won’t last very long.

The Service has faith in Wyoming and says that the state “commits to an adaptive management approach that adjusts management if the … minimum level of gene flow is not documented, as well as to use human-assisted migration if necessary.” The Service refers to the intention of the Wyoming Game and Fish Department to reduce the number of wolves in state jurisdiction down to a minimum population level of ten breeding pairs and at least 100 wolves (most packs have only one breeding pair). One must question whether the wolves should put as much faith in Wyoming’s intentions as the Department of the Interior does. Wyoming’s policy was to allow only six breeding pairs of wolves outside of the National Parks, a number so low that it probably satisfied by some official signing a form to the effect that a rancher here or there failed to shoot the wolves on his ranch.


The Service concedes that its current optimism on the survival of the fledgling wolf populations may be temporary, that human predation and other factors may push the species back towards extinction soon enough. Nevertheless, the Service promises to continue to monitor the status of the gray wolf populations in the northwest. The Department of the Interior appears to remain a political football even in a Democratic administration and, unfortunately, President Obama seems no different from prior presidents in taking sides against the wolves.

The conservation movement began over a hundred years ago as a way of keeping a significant part of the United States pristine, in the state in which our ancestors found it. Unfortunately, the Department of the Interior, the modern guardian of the objectives of that movement, has whittled that purpose down to keeping minimal breeding populations of many species. The federal parks and forests are no longer our ancient and wild woodlands, but are rapidly becoming theme parks where ever increasing human alteration of the environment is both acceptable and easily justified. The wolves deserve better, but they have no vote. Even if they did, I'm fairly sure the 2012 election will offer them no real alternative.

Department of the Interior, Endangered and Threatened Wildlife and Plants: Removal of the Gray Wolf in Wyoming from the Federal List of Endangered and Threatened Wildlife and Removal of the Wyoming Wolf Population’s Status as an Experimental Population, Docket Nos. FWS-R6-ES-2011-0039; 92220-1113-0000-C6, 76 Fed. Reg. 61782 (October 5, 2011).

Did Courtroom Demonstration Create Impression of Infallible Arson Dog? Prejudice Argument Swept Aside by Appeals Court

William Halliday was convicted of first degree arson and insurance fraud for setting his house on fire and attempting to collect insurance money. We are given no description of the events behind the fire by the Alaskan appellate court to which Halliday appealed his conviction. Rather, the appellate court focuses on Halliday’s assignment of error to one crucial piece of evidence, the testimony of an arson dog handler and a demonstration conducted by that handler with her dog before the jury.

Deputy Fire Chief Bridget Bushue testified that she used Jodi, an accelerant detection dog, to find places from which samples were taken for laboratory testing. The trial judge, Philip R. Volland of the Superior Court in Anchorage, also allowed Burshue to conduct a courtroom demonstration with Jodi, showing how the dog alerted to areas from which samples were then taken for analysis. Halliday argued on appeal that Judge Volland erred in allowing this demonstration.

Prosecution and Trial

Prior to trial, the prosecution gave notice that it intended to call Bushue as an expert witness and asked permission for her to conduct a demonstration before the jury that would explain how the dog was used to collect samples to be sent for laboratory analysis. Judge Volland first required that the demonstration be given without the jury present. Bushue placed Q-tips around the courtroom, some with accelerant on them, some without. Bushue further explained that Jodi had been certified since 2004, that she had never failed a scent-detection test, and that she had never alerted to a false positive.

The defense counsel objected to the demonstration “on the ground that the demonstration was not sufficiently similar to the actual investigation that was conducted. He argued that the demonstration would be prejudicial because the dog was cute, and he asserted that there was no particular reason to conduct this demonstration for the jury.”

Judge Volland concluded that Jodi’s “training and certification and prior successful track record” showed that the dog was “sufficiently reliable as a tool in fire investigation.” It is not stated whether defense counsel attempted to obtain and review the canine team's training, certification, or field records, since the only mention of the dog’s qualifications appears to have been given by the handler in testimony. Nor is any cross-examination described. The objection that the dog was “cute” has been made by defense attorneys in cases where therapy dogs help children testify in abuse cases, but may have been worth making as part of the argument regarding the prejudicial nature of the demonstration.

As to the demonstration:

“[Judge Volland] acknowledged that the demonstration in the courtroom was not the same as what Jodi would actually do in a fire investigation, but he concluded that, in spite of the difference, the demonstration would help the jurors to understand this part of the fire investigation. Judge Volland determined that the demonstration would not be unduly prejudicial. And he thought that the demonstration would be useful to show how the fire investigators decided to send certain samples from the fire scene to the laboratory to test whether residues that indicated accelerants were present on these samples.”

On the stand, Bushue qualified as an expert without objection. Given the fact that Bushue was going to make a potentially damaging demonstration, defense counsel may have made a strategic mistake in not questioning her qualifications. Bushue did not remember if she was called the same day of the fire or the day after, a curious lapse given that she would presumably have been well prepared for the witness box. Inside the house, Jodi alerted to a pile of debris, to the couch, and to an area in the kitchen. Samples were taken from these locations to the Alaska State Crime Laboratory and tested for accelerants. The lab found accelerants in three of the seven samples provided.

It is not clear if the defense questioned why four of seven samples were apparently taken from places where Jodi alerted but where no accelerants were detected in the laboratory. Was Bushue asked if these were false positives? Was any lab technician asked about his knowledge of how the samples were obtained? Did the lab have the same infallible experience with samples selected by the dog’s alerts as the handler described? Unfortunately, the appellate court’s summary of the record is sparse on some crucial issues.

Bushue then conducted the Q-tip demonstration. Apparently Bushue herself placed the Q-tips around the courtroom. It is not clear if she knew which Q-tips were scented with accelerants and which were not. If she did know, the demonstration was practically useless and should have given rise to an objection based on the possibility of cueing. There is no indication that the defense argued that someone besides Bushue place—hopefully hide—the Q-tips, and out of her presence. To make the experiment truly double-blind, everyone should have been removed from the courtroom who was going to be present during the demonstration to avoid possible third-party cueing. (See Ensminger & Papet, Cueing and Probable Cause.)


On appeal, Halliday’s counsel made a general objection to the admission of the testimony regarding accelerant detection canines under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The appellate court upheld the trial court’s rulings on the canine testimony in a single paragraph, without addressing the scientific objections, though it is not clear how well stated those objections were. The court’s concluding paragraph reads in full:

“We conclude that Judge Volland did not abuse his discretion in admitting the testimony and in permitting the demonstration. All that the testimony and the demonstration showed was how the fire investigators decided where to select samples from Halliday's residence to send to the laboratory for testing. Ultimately, it was the laboratory testing that determined the presence of accelerants. Accordingly, the testimony and the demonstration with Jodi were not prejudicial.”


Judge Mannheimer of the appellate court concurred, emphasizing that in finding the dog sufficiently reliable as a tool in a fire investigation, Judge Volland had made an irrelevant statement because neither Bushue nor the prosecutor had asked the jurors to rely on the dog’s detection skills as proof that the physical samples taken from Halliday’s house contained accelerants. Instead, the state relied on the subsequent laboratory analysis.

Judge Mannheimer further argued that "it ultimately made no difference to the State's case whether Deputy Chief Bushue selected the samples by using her dog, or by throwing darts, or by closing her eyes and collecting samples at random." Yet despite the ultimate reliance on the laboratory analysis, the lack of randomness in the selection of the samples quite likely convinced the jury that the dog detected not only that accelerants were used but also exactly where they were placed. This could well have given an impression of infallibility to the whole forensic process as to which the laboratory analysis was only the crowning moment.

Judge Mannheimer stated that “the demonstration of the dog’s prowess had very little relevance to the issues litigated at Halliday’s trail, and a good argument might be made that the demonstration was a waste of time.” Still, Mannheimer concluded that the demonstration was apparently a harmless, though perhaps entertaining, digression at trial. It could also be argued that if the demonstration was a waste of time, the possible prejudice involved should have resulted in its exclusion.


It is difficult to criticize a case that gives such little support to its own conclusions, and indeed provides so little background concerning the crime and the trial. Nevertheless, the demonstration with the dog gave an impression of infallibility: the dog finds the samples, the samples go to the lab, the lab verifies the presence of accelerants, and justice is done.

The demonstration was vastly different from the way a dog works at a fire scene. The dog will smell all kinds of substances, some of which, like some types of carpeting, may contain chemicals used in accelerants. (See sources cited in Police and Military Dogs, page 243.) Was this investigated by the defense? Further, the handler does not know where the accelerants might be found in a fire scene, unless there is other evidence, such as a splatter or burn patterns. Were the Q-tips visible to the dog or the handler in the courtroom? Why could they not have been hidden by someone else? Did the defense make any such suggestions?

In the fire scene investigation, why were four samples sent to the lab that did not produce accelerants? Were samples taken from areas where the dog did not alert but was allowed to smell in order to see if the dog made any false negatives? The minimalism of the decision raises more questions than are answered.

Our comments are not a criticism of Bushue’s method of investigating the fire. Accelerant detection dogs, as discussed in the chapter on accelerant detection in Police and Military Dogs, should be used to find places from which samples can be taken. They should be, as Jodi was here, a preliminary step in the investigation. Their use, however, should not be glorified as was done at trial here.

Halliday v. Alaska, 2011 WL 4107684 (September 14, 2011)

This blog was written by John Ensminger and L.E. Papet.

Friday, October 7, 2011

Rashomon in the Courthouse: A Service Dog Story

As in Rashoman, there are four versions of the story, but let us begin with the dog handler:

Brenda, a veteran who suffers from a seizure disorder and requires the assistance of O’Neal, a service dog, came to an Ohio courthouse in the summer of 2009 to testify as a witness for a friend’s son. She was accompanied by her husband as well as the dog. The officer operating the metal detector informed her that animals were not allowed in the courthouse. Brenda explained that the dog was a service animal. The officer had not heard of this but said he would check with the judge where Brenda was expecting to testify.

The officer did not leave his post for 20 minutes, during which time Brenda’s husband showed him the papers the couple carried regarding service animals. Finally, just before lunch, the officer took the papers to the judge’s court officer, but the judge was going to lunch and said he would look at the papers after he came back. Apparently the judge was not immediately prepared to admit service animals.

The doors to the courtroom were locked and Brenda had to stand up during the entire hour the judge was gone. The court officials refused to let Brenda use a bathroom with her dog during this period and she had to go to a nearby Taco Bell to use a restroom. No one offered her a chair.

After lunch, just before the judge brought his courtroom back in session, Brenda was told she would be able to bring O’Neal inside. Angry at her treatment, Brenda sued.

How did the court officials see the matter?

Sergeant J.F. Brown was operating the metal detector alone. He had never encountered anyone trying to bring a service animal into the courthouse and had not been informed of any policy regarding service animals. He knew that Judge Sheridan Randolph had a policy against admitting animals into his courtroom. He told Brenda to wait because he wanted to get directions from the judge or his staff regarding the animal.

It took 20 minutes for Sergeant Brown to get away, but the judge’s court officer was equally unprepared to deal with the situation and the judge said he would look at the papers that were brought to him after he got back from lunch. Since he had not received approval to let Brenda into the secure area of the courthouse with the dog, Sergeant Brown could not permit her to use the bathroom.

Sergeant Brown and the other officers involved in the incident felt they had done their best in a situation they had not encountered before.

The matter ended up in the federal district court for the Eastern District of Tennessee, where it was assigned to Chief Judge Curtis L. Collier. His perspective is provided by the written opinion he issued in the matter, but since he was dealing with a motion for summary judgment by the defendants, he nominally accepted Brenda’s version of the facts, and otherwise considered the law. Insofar as he makes reference to the facts, he notes that there were no prior incidents of this sort, which would have put the County and its officials on notice, and even though Sergeant Brown stopped Brenda, he did so because he did not know what to do. The sergeant sought to find out, perhaps a little slowly, but not at a level that lifted the incident to one of discrimination.

Brenda sued under the Americans with Disabilities Act, under Due Process and Equal Protection clauses of the Constitution, and under state tort law claims, including negligence, invasion of privacy, and intentional infliction of emotional distress by Sergeant Brown. Judge Collier began by dismissing the ADA complaint against Sergeant Brown in his individual capacity since there is no individual liability under Title II of the ADA. Under 42 U.S.C. 12132, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”

Judge Collier noted that compensatory damages may be recovered under the ADA if there is intentional discrimination, and the plaintiff can show that the discrimination was directed toward her in particular. Tucker v. Tennessee, 443 F.Supp.2d 971 (W.D. Tenn. 2006). Bradley County, which operated the courthouse, where the incident occurred, argued that it could not be held liable for failure to supervise, since such a failure “is necessarily not directed at a particular disabled individual.” The County also argued that its failure to train Sergeant Brown regarding service animals was “not a specific act of intentional discrimination against Plaintiff herself….” Judge Collier agreed with the defendants and granted summary judgment on the ADA claim.

The judge also concluded that there was no evidence that the County had either a discriminatory or even an unofficial policy against the use in the courthouse of service animals by individuals with disabilities. Nor could Brenda “point to any ‘prior instances of unconstitutional conduct’ to demonstrate the County has ‘ignored a history of abuse’ toward individuals dependent on service animals, or even disabled individuals generally.” Judge Collier discussed a 2004 Supreme Court case, Tennessee v. Lane, 541 U.S. 509, 124 S.Ct. 1978, 158 L.Ed.2d 820 (2004), which held that states are not exempt from ADA requirements when physical access to the courts is at issue. Although relevant to the case before him, Judge Collier stated:

“[H]olding as a general principle that the ADA is applicable with respect to courthouses is a far cry from placing municipalities on notice of an exhaustive set of particular accommodations and policies to be proactively implemented with respect to every conceivable disability.”

Although I believe that Judge Collier’s statement is correct as to the date when the incident occurred, I will argue below, when we get to my perspective, that he might not be correct now, given recent regulations issued by the Department of Justice.

Sergeant Brown also argued that he was covered by qualified immunity as to his actions. Judge Collier agreed, stating:

“Faced with what was to him the novel occasion of someone attempting to bring an animal into the courthouse, Sergeant Brown sought to consult with a higher authority before permitting Plaintiff and her service animal to enter. Mindful that “[i]t is sometimes difficult for an officer to determine how the relevant legal doctrine ... will apply to the factual situation the officer confronts,” [citing Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)], the Court cannot conclude Sergeant Brown would have known his causing Plaintiff to wait while he sought approval from Judge Randolph would have violated Plaintiff's clearly established constitutional rights.”

The court dismissed all federal claims, but dismissed the state law claims without prejudice, meaning that Brenda can pursue those arguments in state court if she wishes. I will not now comment on the likelihood of success in such a proceeding.

Lastly I’ll give my perspective, even if it might be wiser to stay off the field.

I believe Brenda had good reason to be angry. If the Bradley County court system were well operated, with personnel appropriately trained, she would not have encountered the embarrassment of having to explain her condition and the need for a service animal. She should not have been asked concerning the nature of her disability. Questions asked of her by court officials should only have been directed towards the functions the dog performed for her, not towards the nature of her disability. She would not have had to find a Taco Bell to use a bathroom. She should have been offered a chair as a matter of basic civility.

I also wonder what Sergeant Brown would have done had Brenda been blind and O’Neal a guide dog. The Department of Justice regulations generally place all service dogs into the same protected category, though regulations specifically applicable to state and local governmental services had not yet been issued in final form. Nevertheless, the broad public knowledge of the access rights of blind persons with dog guides has a longer history, and such a situation might take on a different tone.

All that said, Judge Collier was right in his application of the law and in his dismissal of the federal claims. Given all the circumstances, a case was not made against the County or Sergeant Brown. The outcome does not surprise me. Nevertheless, it is sometimes worth fighting the good fight and keeping the faith, sometimes worth yelling at the umpire, not that he’ll change his call, but so that he’ll be more careful on the next pitch (or so one hopes). A good deal of history in civil rights was made because lawyers kept fighting the good fight in cases they knew they were not likely to win.

Despite these ramblings, I believe that if the incident happened now, Brenda should win. Final regulations under 28 CFR Part 35, issued by the Department of Justice on September 15, 2010, specifically mention courthouses as covered facilities 13 times. (The proposed regulations had been issued in 2008, but a lot of rules are proposed without ever becoming final and the proposal only referred to courthouses once.) The regulations detail procedures for admission of service animals to state and local government services, which include courts. Information about the rules was widely disseminated by the Department of Justice and by a multitude of groups representing individuals with disabilities. The rules were discussed in depth in a prior blog here. Therefore, I believe that state and local courthouses, and the judiciary and officials working in these facilities, are now on notice that they must accommodate individuals with disabilities.

It is often forgotten that Rashomon, the great 1950 film by Akira Kurosawa, was not just a samurai film but also a film about a trial. Four stories are told by the survivors and witnesses of the incident, all of whom give such different accounts that viewers are never sure what happened. Nor do I know what really happened at the entrance to the Bradley County courthouse on August 11, 2009. I do not know if Sergeant Brown was surly and dismissive of a request that required him to make more effort than he was willing to give to his job. I do not know if Brenda was too quick to take offense. I do not know what emotional reaction I would have had to the incident had I been an eye witness. Even had I been there, however, my emotional reaction is irrelevant because I do believe that justice was done. A different justice should apply to such a situation if it occurred now.

Sears v. Bradley County Government, 2011 WL 4473876 (E.D. Tenn. 2011)