A Challenge for the Long Nose of the Law

Over the years, Duchess has nosed her way into some 200 investigations.

The 8-year-old bloodhound has used her keen sense of smell to sniff for bodies underwater, to forage for discarded weapons, to track everyone from missing persons to bank robbers.

But her sniffing talents will be scrutinized more closely than ever in the case of the State of California vs. Earl Rhoney, a 20-year-old accused of killing an Irvine woman 2 1/2 years ago.

Duchess, prosecutors say, identified Rhoney as the killer from a scent extracted from the victim’s sweatshirt, preserved for nine months in an evidence freezer.

Investigators used a novel vacuum device to extract the scent and transfer it onto a gauze pad. Duchess sniffed the pad and then picked Rhoney out of a crowd, just minutes after he had been released from serving time on another charge.

A Superior Court judge will be asked this week to decide whether Duchess’ identification of Rhoney can be used as evidence, as the defendant’s attorneys try to raise a magnifying glass to the science and techniques behind the legendary sleuthing powers of the bloodhound breed.

The use of bloodhound tracking evidence has been long established in courts across the country--as long as certain conditions are met, according to legal experts.

Defense attorneys, however, say the vacuum device, one of only a handful nationwide, and the long time lapse between the murder and the dog’s tracking make Rhoney’s case different. The evidence is key to the case against Rhoney, they contend.

“They arrested him as a result of the dog tracking,” said Deputy Public Defender Alan Crivaro, one of the defendant’s attorneys. “They had every other piece of evidence before that. [The tracking] is the case.”

Police allege Rhoney was burglarizing Patricia Pratt’s home in the exclusive Turtle Rock community on Jan. 20, 1994, when the 46-year-old service manager for PacTel Cellular returned home from a walk and surprised him. Her husband, Paul Pratt, found her strangled and bludgeoned body when he returned home from a business meeting just before midnight.

Unknown to the shocked residents of Irvine--where murders are rare--police targeted Rhoney, then 17, as a suspect two weeks after the slaying when he was linked to another burglary in Turtle Rock, near where he lived with his grandfather.

Duchess and her trainer, Larry Harris, were called in a few weeks later to help in the investigation.

On Oct. 19, 1994, investigators said they used a vacuum device, which one described as a “scent machine,” to extract a scent from the sweatshirt Pratt was wearing when she was killed, according to court documents. The machine transferred the scent--what is really an accumulation of dead skin cells known as scurf--onto a sterile gauze pad.

Two days later, Harris and Irvine homicide detective Larry Montgomery took Duchess to Orange County Juvenile Hall in Orange, where Rhoney was set to be released after serving time for burglary and weapons charges.

About 12 minutes after an unsuspecting Rhoney left the front of Juvenile Hall, investigators unsealed the gauze pad and gave it to Duchess for a sniff. About half a mile later, investigators said, the scent from the pad led the bloodhound to Rhoney, who had stopped to make a phone call at The City Shopping Center.

Police at the time said the dog gave them “the last piece” of evidence needed to arrest Rhoney, who allegedly told an arresting officer: “I can’t believe you caught me by using the dog.”

Rhoney, who is being tried as an adult, denies making the statement, and maintains his innocence in the slaying, Crivaro said.

Citing the pending trial, prosecutors and investigators declined to discuss specifics of the evidence-gathering.

The attorneys say the tracking evidence should be thrown out of court, contending there is nothing in state law or scientific research that says a scent can be transferred by a machine, uncontaminated or non-degraded, after such a long period of time.

And, they argue in court motions, it is only “pure speculation” that the killer’s scent was even on the victim’s sweatshirt.

Prosecutors say the evidence should be allowed. They maintain in court papers the reliability of the vacuum device was proved in a test earlier this year, and say the killer would have had extensive contact with the victim’s shirt because of the way in which she was strangled.

“The vacuum employed here is simply designed to move the scent evidence with air from one location to another,” Deputy Dist. Atty. James J. Mulgrew wrote in a motion.

“[Duchess] was given the scent in a busy urban setting where there were dozens, if not hundreds, of people that could have been identified,” the prosecutor wrote. “The fact that she had to track the defendant’s scent, rather than just pick him out of a small group, enhances the reliability of the evidence.”

Bloodhounds, one of the oldest hound breeds with a long history of sleuthing prowess, have been used with increasing frequency in Orange County over the past decade.

Handlers say the dogs’ noses are 3 million times more sensitive than a human’s and are able to track people by the scent of their body scurf, the microscopic dead skin cells that are sloughed off at a rate of around 50 million a day.

Larry Harris, who could not comment in the Rhoney case because of the pending trial, has been handling bloodhounds for some 20 years and revitalized the Orange County sheriff’s bloodhound program in 1986.

Duchess, who has been trained by Harris since she was a puppy, has a trailing record that Harris describes as “very good,” according to court documents.

Experiments have determined that a scent can remain on an article of clothing for as long as six years, Harris testified at a previous court hearing.

In California, dog tracking evidence to prove a defendant’s identity is allowed in criminal trials as long as there is corroborating evidence to support it, according to legal experts.

“No conviction can be had based solely on bloodhound or other dog tracking evidence,” said Norman M. Garland, a professor at Southwestern University School of Law specializing in evidence.

Other legal requirements must also be met: The dog’s handler must be qualified, the dog must be adequately trained, the dog must be reliable in tracking humans, the dog must be placed on a track where the suspect has been, and the trail must not have been stale or contaminated.

The use of the scent machine in the Rhoney case could require extra steps by the prosecution to prove the scientific reliability of the evidence, according to Garland and Robert J. Tuller, a professor at Western State University College of Law in Fullerton.

Rhoney’s attorneys are arguing for such a scientific reliability hearing. Prosecutors say it is not needed because the device simply uses a vacuum to move the scent evidence from an object onto a pad, similar to established methods used to collect fiber evidence.

The box-shaped vacuum device in the center of the dispute was developed in the late 1980s by William Tolhurst, president of the North American Search Dog Network, who has trained bloodhounds for decades in Upstate New York. He declined comment on the device because of the pending trial.

Even if a scientific reliability hearing is not required by the judge, the defense will argue the prosecution has failed to meet the other legal requirements needed to allow dog tracking evidence, such as an uncontaminated trail.

Prosecutors contend in court papers that the evidence does meet legal requirements and “combines the best aspects of dog tracking and lineups.”

And prosecutors say in court papers that they have other evidence against Rhoney, although the defense contends the case is largely circumstantial and does not prove guilt.

The hearing over the bloodhound evidence before Superior Court Judge Anthony J. Rackauckas is expected to start Monday and last about three days.