Monday, August 5, 2013

Sight and Scent Identifications Collapse Eleven Years after Conviction

Gilbert Aguilar was convicted of first degree murder in 2002 in Los Angeles Superior Court (B164237, B174532, 2004 WL 2051385). An appeal of the conviction failed.  In 2009, he filed a habeas corpus petition with the federal district court for the Central District of California, which was denied (CV 06-00554, 2009 WL 509127). Both cases were summarized in an earlier blog.  He appealed the district court’s denial of his habeas corpus petition, and the Ninth Circuit has now reversed the district court and ordered the State of California to release Aguilar from custody or give him a new trial.   

Crime and Police Sketch of Shooter

John Guerrero was murdered on July 25, 2001, while waiting for a red light to change in La Puente, a town east of Los Angeles.  A passenger got out of a white Volkswagen, walked to Guerrero’s car, and discharged seven rounds from a semi-automatic pistol through the car window aiming only at the driver.  Guerrero was dead but the other passengers had ducked and were unhurt. 

Which Photo Looks More Like the Drawing?
About a month after the murder, a police artist made a sketch of the shooter based on descriptions of eyewitnesses, which did not include the passengers in Guerrero’s car who claimed not to have the perpetrator’s face. A probation officer thought the sketch looked like Gilbert Aguilar. A photograph of Aguilar and photographs of five other individuals were shown to the eyewitnesses who had helped the sketch artist, and all agreed the perpetrator looked like Aguilar, though only one made a positive identification.  (Research has indicated that a large number of variables, including putting someone in a lineup that resembles the perpetrator or who looks like a criminal, may increase the likelihood of a misidentification.  G.L. Wells, M. Small, S. Penrod, R.S. Malpass, S.M. Fulero, and C.A.E. Brimascombe, (1998). Eyewitness Identification Procedures: Recommendations for Lineups and Photospreads. Law and Human Behavior, 22(6).)

Eyewitness Statements

The only issue at the trial was the identity of the shooter.  Aguilar’s defense was that another man who looked somewhat like Aguilar, named Richard Osuna, was the shooter.  One witness testified that “word on the street” was that Osuna, known as Gangster, had shot Guerrero.   After Aguilar’s arrest, secretly taped conversations he had with his girlfriend when she visited him in jail indicated that he was seeking ways to get evidence regarding Osuna to the police, but he was afraid because he and Osuna were in the same gang and Osuna would be likely to retaliate. 

The Ninth Circuit recounted the statements various eyewitnesses gave concerning the perpetrator as follows:

“[T]he eyewitnesses’ height, weight, and age estimates during the police investigation more closely resemble Richard Osuna (no more than 5’7” and 16 years old) than Aguilar (no less than 5’11” and 20 years old) at the time of the murder. Desiree Hoefer estimated the suspect to be no taller than 5’4”.Victor Jara estimated him to be 5’5” or 5’6”. After speaking to the Jaras and Kevin Feeney, Deputy Sheriff Blackmer described the suspect as 5’5”. Only Omar Soltero stated to investigators that the shooter was taller, and even he estimated the shooter to be several inches shorter than Aguilar. According to expert testimony, the witnesses would have been expected to overestimate, not underestimate, the height of a man carrying a gun. The eyewitnesses’ weight and age estimates are also more similar to Osuna than to Aguilar. Deputy Sheriff Blackmer reported, after speaking to the eyewitnesses, that the suspect was 130 pounds. That is 20 pounds lighter than Aguilar’s reported weight. Additionally, Hoefer and the Jaras estimated the perpetrator to be substantially younger than Aguilar.”

Eyewitnesses were not shown a photograph of Osuna at the time they were shown the six photographs that included one of Aguilar.  Copies of the sketch and the photographs of Aguilar and Osuna were included in an appendix to the Ninth Circuit opinion and are reproduced here side by side. 

The circuit court also noted that several of the eyewitnesses changed their testimony at trial from what they had said during the police investigation. 

Scent Identification

According to the Ninth Circuit:

“To supplement the physical evidence and eyewitness testimony, the prosecution put on evidence that a trained scent dog, Reilly, had identified Aguilar’s scent on the white Volkswagen. Shortly after Aguilar was arrested, Officer Joe D’Allura used Reilly to perform a scent comparison test between Aguilar’s scent and the scent found in the white Volkswagen. Scent comparison tests are based on the idea that every person has a unique scent, and that dogs can identify particular scents as belonging to particular objects and persons. A scent transfer unit extracted scent from Aguilar’s clothes and from the impounded vehicle. The extracted scents were then placed in sterile gauze ‘scent pads.’

“Reilly was first given a sample of Aguilar’s scent. Reilly then was led to a lineup of four scent pads, one of which had been collected from the passenger side of the impounded Volkswagen. He was trained to bark if he perceived a match between the sample scent and any of the scent pads. Reilly barked at the third scent pad, signaling a match between the scent pad from the Volkswagen and the scent from Aguilar’s clothes. While there were four scent pads in the line-up, Reilly only reached the third scent pad before he signaled a match. Reilly did not signal a match on the spent casings from the bullets fired at Guerrero.”

Although the failure of the dog to make a match as the casings might be exculpatory, it might also mean that the person who loaded the weapon was not in the VW at all.   

The scent tests were conducted on September 4, 2001.  Aguilar’s scent had been taken from his clothes when he was arrested the day before.  Officer D’Allura was unsure of when scent was taken from the impounded VW.  On cross examination he stated that it would have had to be taken within a week of the individual sitting in it, but later said that it could be taken later than that if the car had not been used “by other people and things.” 

Aguilar’s girlfriend testified that she sometimes wore Aguilar’s (her boyfriend’s) clothes and speculated that she might have put his scent into the VW.  (This has been shown to be scientifically possible.  See studies described in Transfer of Scent through Clothes, Police and Military Dogs, pp. 56-7.)

The jury was instructed that the dog scent evidence had been received to show that the defendant was a perpetrator of the crime of murder and that the jury should “consider the training, proficiency, experience, and proven ability, if any, of the dog.”

Jury Deliberations

The jurors asked for a response from the judge as to this question: if “the D.A.’s office did not pursue the ‘Richard Osuna’ lead,” was this was something the jury could consider in reaching a verdict.  The judge responded that “the state of mind of the investigator or the prosecutor, except as it relates to a bias, intent or other motive to fabricate evidence, is not relevant to the guilt or innocence” of the defendant. 

After one juror was dismissed and an alternate installed, the jury found Aguilar guilty and he was sentenced to 50 years to life in prison.

Police Dog’s Mistaken Identifications

Defense counsel was unaware at the time of Aguilar’s trial that the prosecution had stipulated in another case that Reilly, the scent dog, had made mistaken identifications on two prior occasions.  In People v. White, BA 212658 (Los Angeles Superior Court, 2002), the prosecution, while trying to introduce a scent identification made by Reilly, stipulated that in November 1997 Reilly had identified two different men as the source of scent on a murder suspect’s shirt (when it could only have been one of them).  In another case, People v. Bruner, BA 216390 (Los Angeles Superior Court, 2001), Reilly had identified as the perpetrator a man who had been in prison at the time the crime was committed.  The judge in White ruled that the dog scent procedures were so flawed that he would not allow the evidence of the scent lineup in.

After the White case, the Los Angeles County Public Defender wrote a letter to the LA District Attorney stating that every defense attorney who represents or has represented an individual in a case in which D’Allura “will or has presented evidence regarding his dog Reilly’s ability to detect scents” should be informed of the judge’s decision with regard to such evidence in White.  By the time the prosecution introduced the dog scent evidence in Aguilar’s case, Reilly was no longer working as a scent dog.  The defense counsel was not informed of any of these facts at the time of Aguilar’s trial and did not object to the admissibility of the evidence, though he stated he would have so objected had he known about Reilly’s history. 

Brady v. Maryland

Aguilar’s counsel filed a habeas petition with the California Court of Appeal, arguing that failure to disclose the exculpatory evidence was a violation of Brady v. Maryland, 373 U.S. 83 (1963). That appellate court affirmed Aguilar’s conviction and denied the habeas petition, saying that even had the jury been given the information about Reilly’s mistakes, it was not reasonably probable that “the result would have been different. “  A petition to the California Supreme Court was denied without comment.  As already mentioned, the federal district court also denied a habeas petition by Aguilar in 2009. 

The Ninth Circuit said that the issue before it was whether “the state court reasonably applied Brady to the facts in Aguilar’s case.”   The circuit court began by observing that there was “no doubt that Reilly’s history of making erroneous scent identifications is exculpatory evidence.”  There was also no doubt that the Los Angeles District Attorney’s office was aware of the decision on the habeas petition in White.  It was not clear if the individual prosecutor in Aguilar’s case knew about White, but he should have learned about it from D’Allura so either the prosecutor was “hasty in preparing his witness or D’Allura deliberately concealed from him Reilly’s prior record of misidentifications.”  Also, the knowledge of the District Attorney is imputed to prosecutors in his office.

The Ninth Circuit disagreed with the California appellate court as to the result of Aguilar’s trial had the scent identification been excluded:

“If the Brady evidence had been presented to the Aguilar court, it is virtually certain that the trial judge would have ruled as did the trial judge in White by excluding the evidence of Reilly’s scent identification. In at least two contemporaneous California state court trials, defense attorneys successfully challenged the admissibility of dog scent lineups.”

The other cases were a 1998 unreported case from the Orange County Superior Court (Rhoney, 94HF0957), and Mitchell, discussed in the same blog in which White was previously discussed by us. The circuit court also noted that, even if the dog scent evidence had been admitted despite White, the evidence of prior failures would have “provided powerful impeachment material.”  The jury, instead, “had no reason to question the accuracy of Reilly’s identification of Aguilar.” 

Without the dog scent evidence, the prosecution’s case would have been very weak:

“The gunman’s identity was the only issue in Aguilar’s case. Absent Reilly’s dog scent testimony, there was no corroborating evidence for the shaky eyewitness identifications. There was no forensic evidence, murder weapon, or confession. The prosecution did not tie Guerrero and Aguilar to each other in any way. The only motive given for the killing was the unsubstantiated suggestion that Guerrero had trespassed into the territory of Aguilar’s Puente Street gang, and this theory was suspect given that Guerrero was shot numerous times at close range while his passengers–equally trespassing–were left unharmed. The prosecution’s own gang expert testified that the fact that only Guerrero was shot indicates that he was the intended target, undercutting the government’s theory that this was a gang rivalry shooting. Richard Osuna, a suspect who had a motive to commit a targeted shooting, and who more closely resembled the eyewitness descriptions, had not been investigated.”


The Ninth Circuit held that “the prosecution’s failure to disclose that Reilly had a history of mistaken identifications violated Brady v. Maryland, and the California courts’ decision to the contrary was an unreasonable application of Brady.” The circuit court required “the State of California to release Aguilar from custody unless it grants him a new trial to commence within a reasonable period of time to be determined by the district court.” 

The case is correctly decided, though it does not go to the heart of what is wrong with scent identifications as used by U.S. law enforcement and accepted all too often by U.S. courts.  As has been argued elsewhere, scent lineups can be conducted in a rigorous manner in carefully controlled environments, preferably with multiple dogs, but that is not being done in the U.S. (except perhaps in some FBI investigations).  It is our opinion that even had there been no mistakes in Reilly’s history, no verifiable false positives, the sort of procedure used by D’Allura with Reilly should not be admissible in any case.  

Aguilar v. Woodford, 06-cv-00554 (9th Cir. 2013)

This blog was written by John Ensminger and L.E. Papet.  The authors thank Daniëlle Bes for comments on the case.

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