Critics say it’s ‘scent’ evidence that’s suspect
On a warm August night in 2004, Michael Espalin and his dog watched Riverside firefighters douse seven burning palm trees on a residential street. It was 1 a.m., an unusual time to be walking a dog, or so thought an arson investigator.
After answering a number of questions, Espalin, then 31, was asked to rub his face and hands on a gauze pad and sent on his way.
Half a year later, Espalin was charged as a serial arsonist, accused of lighting 21 fires, mostly trees and bushes, in Riverside.
No eyewitnesses or traditional evidence linked Espalin to the crimes. But the Riverside County district attorney’s office built a case against him based on a bloodhound allegedly picking up his scent on a charred incendiary device and cold crime scenes and matching it to the pad.
After Espalin spent two years in jail awaiting trial, a jury deadlocked 9 to 3 in January for acquittal. Most jurors did not believe that the bloodhound, Dakota, found Espalin’s scent at the scene of the fires days and weeks after they were set.
Espalin, who was released Tuesday from custody, joins a growing list of Southern California men incarcerated because dogs allegedly found their scent at crime scenes. In at least five cases, charges were dismissed or convictions overturned because the scent evidence could not be scientifically validated or because it led investigators to the wrong suspects.
Two of the men faced murder charges, including one who initially had been convicted and faced life in prison without parole. His case was dismissed the day of sentencing when the judge ruled scent evidence unreliable.
Roena Wiggins, who voted to acquit Espalin, said the prosecution’s reliance on the scent evidence was a sign that the case was “pretty thin.”
“If you’re going to send somebody up the river, you’re going to need something concrete to convict,” said Wiggins, a retired teacher.
Prosecutors say they intend to try Espalin a second time. The unemployed vegetarian had remained in jail because he could not make the $500,000 bail. Espalin’s attorney, Joseph L. De Clue, said his client, insisting on his innocence, refused at least two prosecution offers to plead guilty to one of the 21 counts against him in exchange for a sentence of time served and no probation.
After the hung jury, Espalin was able to make his reduced bail of $100,000.
“The prosecution knows they don’t have the evidence to convict my client,” De Clue said. “The only reason they continue to pursue it is because they want to protect the city from liability.
” He’s happy to be home, but he’s not ready to cave in.”
Investigators used a scent-lifting device -- known as a scent transfer unit, or STU-100 -- to place Espalin at the fires. Proponents of the device -- which resembles a Dustbuster and is operated mostly by civilian dog handlers -- contend it can suck human scent from items at a crime scene into a 5-by-9-inch gauze pad. The pad is then sniffed by a bloodhound, which purportedly can match the scent to a suspect.
During Espalin’s trial, Assistant Dist. Atty. Michael Mayman told the jury that a bloodhound handled by Lisa Harvey, a biology instructor at Victor Valley College in Victorville, picked up Espalin’s scent at the scene of 21 fires.
“Bloodhound use is more reliable than eyewitness testimony in being able to identify someone,” Harvey testified.
Harvey testified she was not a certified dog handler but had used the scent transfer unit “hundreds of times” and Dakota in 74 investigations. She said her dog could pick up scent trails that were 8 years old and even identify scents on a bottle that had been thrown into a fire and turned into molten glass.
“I don’t know how [scent] stays around for eight years,” Harvey said. “I just know that it does.”
Harvey and Mayman did not respond to numerous requests for comment for this article.
Harvey said she was trained by Newport Beach engineer Larry Harris, a co-inventor of the scent transfer unit. The scientific reliability of the device is still being debated.
Harris has been involved in two Orange County cases since 1996 in which suspects were convicted with the help of his machine, but the convictions were later voided. The most recent was in October, when a Buena Park man was released from prison after serving almost a year for a carjacking and armed robbery he did not commit. He was released after DNA evidence pointed to another man, who then confessed.
Defenders of scent evidence say it is an effective investigative tool used by police departments and district attorney’s offices in Southern California and other parts of the country.
The jury in Espalin’s case was not told about Harris’ record. But juror Bonnie Owens, a human resources specialist, said she did not need to know about Harvey’s ties to Harris to find Espalin not guilty.
“I didn’t think she or her dog were credible,” Owens said. “I don’t hold a lot of credence in her claim that her dog can find a human scent in molten glass.”
Milicia Wilson of the Law Enforcement Bloodhound Assn. scoffed at Harvey’s contention that scent trails can last eight years. The group is one of two national police organizations of bloodhound handlers.
Scent can linger for up to a week in areas with a lot of moisture or humidity, Wilson said. But in Southern California, scent can disappear in days or hours, she said.
Gary Gibson, an evidence specialist and professor at California Western School of Law in San Diego, said Espalin should not have been tried.
“If you got nothing else but a dog, you’ve got a bad case,” said Gibson, also an attorney with the San Diego County public defender’s office. “I’m terrified for the American justice system when three people voted guilty when the only evidence came from a dog.”