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Dog Lineup Doesn’t Pass the Smell Test

HOUSTON (CN) — A Texas woman's claims that a deputy sheriff's personal "dog scent line-up" led to her wrongful conviction for murder cannot be thrown out on summary judgment, a federal judge ruled.

U.S. District Judge Lynn Hughes ruled Tuesday that former Fort Bend Deputy Keith Pikett's smell test, intentionally or not, might have been designed and conducted in a manner that led to Megan Winfrey's 2008 conviction for the death of Murray Burr, a custodian at the high school she attended. Burr also was her neighbor.

Burr was found stabbed to death in his San Jacinto County home in 2004.

Megan's father, Richard Winfrey Sr., also was convicted and given a lengthy sentence.

Both convictions were overturned because they largely relied on the dog scent evidence.

Megan's brother, Richard Jr., was tried but acquitted by a jury in less than 13 minutes, according to a 2012 ruling from the Fifth Circuit.

Pikett used his pet bloodhounds to conduct a "scent-pad line-up," a procedure he invented to test whether a suspect's scent could be found on a victim's body.

Investigators had Megan rub a piece of gauze against her skin, then placed the gauze in one of several empty paint cans. The other cans were filled with "filler scents" from Fort Bend County inmates.

The cans were lined up and Pikett had his dogs smell another piece of gauze that contained the scent of Burr's clothing. With his dog on a leash, Pikett led the animal to the line of cans. If the dog alerted to a can, Pikett concluded the scent in the can matched the scent on the victim's clothes.

All three dogs Pikett alerted to Megan, Richard Jr. and Richard Sr.'s scents.

Megan and Richard Jr. sued Pikett, other investigators and San Jacinto County, on constitutional claims.

On Tuesday, Hughes dismissed all of them but one: Megan's claim against Pikett, because the judge said he cannot decide as a matter of law whether Pikett's scent lineup was reckless.

Megan argued that the dogs' alerts were impossible to detect, and that Pikett cued his dogs to identify the paint can that contained her scent.

Pikett claimed he was able to identify each dog's unique alert.

"That is not the professional standard," Kyle Heyen, a former police officer and police dog expert, said in an interview Wednesday.

Heyen said that all dogs alert when they smell something interesting, and those alerts can vary between dogs. However, dogs used for finding evidence should be trained to identify what they have found in a specific way. The gesture should be something obvious, such as pointing.

Pikett had not been able to train his dogs to point, Fifth Circuit found. Instead, Pikett claimed he understood the unique alerts for each of his three dogs.

"Of course the dog can do no wrong," Heyen commented. "They really can't. But sometimes, the handlers can."

Steven Nicely, Megan's court expert on dog behavior, said the filler scents Pikett used might have been inadequate because they had been stored in the back of Pikett's SUV, where the dogs rode daily. The dogs might have become accustomed to the filler scents and alerted to Megan's scent because it was the only scent they did not recognize.

Nicely added that Pikett should have trained the dogs to run to the scent test by themselves, as Pikett's use of a leash could have cued the dogs to identify a specific paint can during the lineup.

Only Megan's claim against Pikett for fabricating evidence survived summary judgment.

Megan's and Richard Jr.'s claims for illegal search against San Jacinto County Sheriff Lacy Rogers and Deputy Lenard Johnson were dismissed.

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