VI. THE TRIAL COURT COMMITTED PREJUDICIAL ERROR, AND
VIOLATED MR. PETERSON’S FIFTH AND EIGHTH AMENDMENT
RIGHTS, BY ADMITTING DOG SCENT IDENTIFICATION EVIDENCE
THAT PROVIDED CRITICAL FACTUAL SUPPORT FOR THE STATE’S
THEORY OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
These are miscellaneous excerpts from the brief regarding Error VI:
Though Laci Peterson’s body,and the body of her unborn child, were discovered in San Francisco Bay, the state had no
direct evidence that she was killed in the Modesto home or transported by truck to the
marina.
>>>>>>>.
A vehicle trail is a “non-contact” trail; that is, the person whose scent the dog is
attempting to follow has not made contact with the ground, as would someone who is
walking. (7 RT 1390; 8 RT 1497, 1503.) Rather, the scent is disbursed as the vehicle is
driven along a particular route. (8 RT 1582, 1619.) Prosecution dog-handler, Eloise
Anderson, testified that even if the person is inside the car with the windows rolled up, a
scent trial is created along the car’s route. (8 RT 1581.)
The prosecution did not offer any scientific basis for this remarkable assertion……….
As noted, prosecution witness Boyer conceded there was a dispute among dog
handlers as to whether a non-contact vehicle trail was even possible. (9 RT 1701.)
Despite this dispute, police in Mr. Peterson’s case nonetheless attempted to use dogs to do
just that………..
…there was a third vehicle trail that Trimble ran prior to the instant case, at a trailing seminar in
Chico, California, run by Andrew Rebman…. For whatever reason, however, the results of the Rebman vehicle trailing
exercise were not included in Anderson’s log. (8 RT 1546.) Trimble had failed and thus, in toto, Trimble had
successfully completed only one of three non-contact vehicle trails.
*************
………. The trial court granted the defense motion to exclude all the foregoing dog scent
identification evidence. (10 RT 2000-2005.) The court’s ruling encompassed the dog
trailing from the Peterson home, the scent identification at the warehouse, and the trailing
from the warehouse to Interstate 580. With some understatement, the court found that the
evidence of dog trailing at all three sites “lacks a certain degree of certitude with respect
to the dog handlers and with respect to the dog tracking,” and that it lacked sufficient
corroboration to be presented to the jury. The court further noted that, because “you can’t cross-examine a dog,” the evidence tends to be “conjectural or
speculative.” (10 RT 2001.) Accordingly, the jury did not hear any evidence of dog
trailing in or around Modesto……….
On December 28, 2002, Eloise Anderson brought Trimble to the Berkeley Marina…….. First, Trimble had never been trained
to detect scents in or around a marine environment……. Second, and perhaps more importantly, according to the state’s theory, Laci
Peterson was dead by the time she was transported to the marina. And Anderson had testified quite clearly that a trailing dog is used “to trail
scent from a live person, whereas you would use a cadaver dog to try and locate a dead
person……………. In an apparent effort to explain that Anderson’s testimony was not entirely correct,
the prosecution called Christopher Boyer to explain that a “live smell [can] attach[] to [a dead] person for a very long time,” particularly “if the environmental conditions are very
cool.” (9 RT 1680.) Boyer did not quantify what constitutes “a very long time.” The
prosecution did not provide any scientific or academic foundation for either of these
assertions.
This was hardly surprising. The state did not even seek to qualify Boyer as an
expert. (See 8 RT 1629-1646; 9 RT 1678-1687 [Boyer’s direct testimony].) And Boyer
admitted that he had neither education nor training in dog scent theory.
.................
The prosecution witnesses themselves made it clear that a scent identification like
the one Anderson testified to at the marina is not scientifically based when the subject
being trailed is not found at the end of the search. Captain Boyer was quite candid about
this limitation:
“Q. [by defense counsel Pat Harris] If you do not come up with
the subject at the end of the trail, there is no way to know that
that dog ever picked up that scent, is there?
“A. Are you asking scientifically again?
“Q. I'm asking scientifically.
“A. No, sir. Scientifically there isn't.
>>>>>>>>>>>>.
Here, the evidence showed that Trimble’s handler, Eloise Anderson, did not
use correct procedures. To the contrary, Anderson used a potentially contaminated scent
article and failed to employ the so-called “missing-member test” to assure that her dog
followed Laci’s scent rather than Mr. Peterson’s.
......................
In view of the foregoing authority, the evidence of Trimble’s non-contact vehicle
trailing in a marine environment should never have been admitted in Mr. Peterson’s case.
This is true for the simple reason that Trimble’s alert at the Berkeley Marina did not meet
the foundational requirements of any of the tests for dog scent identification. It did not
meet the foundational requirements for dog tracking under Malgren. It did not meet the
additional foundational requirements for dog trailing under Willis. And it certainly did
not meet the requirements for a novel dog scent procedure under Mitchell and People v.
Kelly.
..................
No California case has sanctioned dog scent evidence based on such a
dismal record of reliability
......................
Moreover, the state failed to show that the trail had not become contaminated.
……………..
Anderson was told by Christopher Boyer, the police manager at the Marina, precisely
where he hoped to locate Laci’s scent. Thus, Boyer told Anderson to check for Laci’s
scent at the entrance and exit to the boat ramps. And unsurprisingly, that is precisely
where Anderson claimed that her dog detected Laci’s scent -- even though it was
undisputed that Laci had never made contact with the ramp.
.................
Again, the state failed to provide this foundation. There was no scientific or
academic evidence to establish that Laci’s scent could migrate from under a tarp, from the
boat, against the wind, over the water and onto the dock. There was no scientific
evidence regarding how long Laci’s scent would remain on the dock, in a marine location
buffeted by winds.
.............
Nor did the state present any evidence of certification procedures Trimble
underwent for non-contact vehicle trailing.
..............
Finally, the People failed to make a sufficient foundational showing as required by
People v. Mitchell for a novel dog scenting technique
......................
Third, the prejudice of the dog scent evidence is also apparent from the fact that
the evidence directly filled an evidentiary gap in the prosecution’s case. (People v.
Roberts 256 Cal.App.2d 488, 491-494, disapproved on other grounds, People v. Triggs
(1973) 8 Cal.3d 884; People v. Harris (1998) 60 Cal.App.4th 727, 741.) Here, though
Laci’s body was found in San Francisco Bay, the prosecution had virtually no evidence
that Scott had transported Laci’s body from Modesto to the Berkeley Marina. There were
no eyewitnesses to this assumption. There was no forensic evidence proving this
assumption. The prosecutor was entirely correct: the dog scent was crucial, because it
filled this evidentiary gap by connecting Laci’s body in the bay to Scott’s boat.
>.....................
Finally, the fact that Laci’s body was found in the bay near to where Mr.
Peterson was fishing does not point unerringly to guilt. Laci’s body was found four
months after the case became publicized. As Mr. Peterson’s defense counsel pointed out,
the search for Laci’s remains in the area of Brooks Island was extraordinarily widely
publicized within 24 hours of Laci going missing: “Only the deaf and dumb didn't know
where they were searching and where Mr. Peterson was that day. That doesn't give you
any corroboration.” (10 RT 1998.)>>>>>>>>>>.