Error VI - Admission of the Dog Scent Evidence

[jane]

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.)>>>>>>>>>>.

[jane]

Good summary of the points made in the brief about the dog expert:

http://www.facebook.com/notes/scott-pet ... 7512041034

"... As discussed fully below, virtually every link in the state’s evidentiary

chain of guilt was fundamentally flawed.

Thus, the state relied on expert testimony to support its theory of the case. The state introduced expert testimony on dog scent evidence purportedly detecting Laci’s scent at the Berkeley marina where Scott had launched his boat on December 24, and told the jury that if they believed this evidence, “then he’s guilty . . . . as simple as that.” The state introduced expert testimony about the movement of bodies in water, purportedly to prove that the conjunction of where the bodies were found and the prevailing winds and tides established the bodies must have originated from the spot Scott said he had been fishing. Once again, the prosecutor told the jury that if it believed this evidence, “then that man’s a murderer. It’s as simple as that.”

But as the American philosopher Alfred North Whitehead put it, “simple solutions seldom are.” The state bet its case on these experts, telling the jury that if they were believed, Scott was a murderer. In this singular respect, Mr. Peterson agrees with the prosecution: Mr. Peterson agrees that, in the context of the evidence before the jury, the significance of these experts to the outcome of this case cannot be overemphasized. The facts of the case, set forth below, provide the Court with that context, against which the Court may itself evaluate the significance of the erroneously admitted evidence.

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 Peterson’s Modesto home or transported by truck to the marina. The state sought to fill this evidentiary void with dog scent evidence. Over defense objection, the state introduced dog scent evidence collected at the Berkeley Marina.

On December 28, 2002, Eloise Anderson brought her trailing dog Trimble to the Berkeley Marina.* With respect to Trimble’s track record for successfully following scent trails, Anderson admitted that Trimble “does make mistakes when you ask her to perform trailing exercises.” * For example, in 2001 Trimble ran two contact trails (where the dog trails someone who has actually made physical contact with the ground, such as by running) where she had failed to trail correctly. * And as to vehicle trails (where the dog trails someone who has not made contact with the ground, such as a person in a car) her record was bleak. Trimble had attempted three vehicle trails and failed two of them. *


Nevertheless, the state introduced a vehicle trail performed by Trimble. Anderson provided Laci’s scent to Trimble using sunglasses that had been removed from Laci’s purse, although she knew that the pursed had also been handled by Scott. * After scenting Trimble with the sunglasses, Trimble gave no indication of scent at several locations at the marina until she explored the vegetation near an entrance to the boat ramp. * According to Anderson, Trimble alerted at the end of the pier on the west side of the boat ramp.*


Anderson and Trimble were not the only team the police called to search at the Berkeley Marina. Ron Seitz, whose dog was also certified by CARDA, was called to search the marina. * Seitz used one of Laci’s slippers to scent his dog. * He specifically chose the slipper as opposed to the sunglasses to avoid “cross-contamination” of scent.* Indeed, in sharp contrast to the sunglasses used by Anderson to scent Trimble, there was no evidence at all suggesting that Scott had handled the slipper. Seitz’s dog did not detect Laci’s scent at the Berkeley Marina.*



During closing argument, the prosecutor told the jury that if it believed Trimble detected Laci’s scent at the pier it established Mr. Peterson’s guilt of capital murder, “as simple as that.”



(Regarding the location in which Laci's and Conner's bodies were found):



As noted, Mr. Peterson told police that he went fishing on the day of Laci’s disappearance from the Berkeley Marina, driving his boat about two miles to the north, to a small island later identified as Brooks Island. * On April 13, 2003, the body of Conner Peterson was discovered in the shoreline area of Bayside Court in Richmond. * The next day, Laci’s body was discovered, washed ashore at Point Isabel in Richmond.* Apart from the general proximity of Brooks Island and the points where the bodies washed ashore, there was no evidence connecting the bodies to the place where Mr. Peterson was fishing.

[Kyle]

"During closing argument, the prosecutor told the jury that if it believed Trimble detected Laci’s scent at the pier it established Mr. Peterson’s guilt of capital murder, “as simple as that.” "

If Laci had sat in that boat (which she did), Trimble MAY have detected her scent at the pier. Laci was at the warehouse on or about the 23rd of December. Brocchini removed that from his report. "As simple as that."

[jane]

The only dog scent evidence that was admitted came from the testimony of Eloise Anderson. Eloise Anderson was shown to be untruthful in her testimony about her cadaver dog Twist at the warehouse, and in describing the abilities of her trailing dog Trimble.

p.184
........In her contemporaneous written report of Twist’s work in the
warehouse, Anderson stated that although Twist showed “mild interest” there were “no
alerts.” (8 RT 1599.)
But Anderson’s testimony changed during the pretrial proceedings. Departing
from her report, she testified that she put Twist at the front of the boat, he sniffed the
railing of the boat, went to explore the area under a workbench, then came back to the
boat and “went into an alert, and then bark[ed] in frustration because she could not
pinpoint any kind of particular source........

Of course, Anderson now had to explain the fact that she left out of her report the
crucial information that Twist actually alerted in the warehouse. She stated that she “was
not sure how to form an opinion based on the heavy chemical smell in the warehouse, and
so I did not say that she actually went into an alert behavior in front of the boat there.” (8
RT 1534.) Anderson nonetheless insisted that she had told a detective at the scene that
Twist had alerted. (8 RT 1539.) Anderson never explained, however, why her opinion
had changed between the time she wrote her report (stating that Twist showed “no alerts”)
and the time she gave her testimony.
******************
p.189-190
Anderson had told Rebman that Trimble could successfully run vehicle trails. (8
RT 1544.) Rebman designed a vehicle trail for Trimble. (8 RT 1544.) Anderson
admitted that every trailing exercise she and Trimble did at Chico should have been
recorded in the log books in which she recorded each of Trimble’s training exercises. (8
RT 1546.) For whatever reason, however, the results of the Rebman vehicle trailing
exercise were not included in Anderson’s log. (8 RT 1546.) When directly asked if
Trimble failed this test, Anderson gave what can best be characterized as an evasive
reply:
“I don’t recall that she was not able to follow the scent coming out of the
vehicle.” (8 RT 1545.)............
Trimble had failed and thus, in toto, Trimble had
successfully completed only one of three non-contact vehicle trails.