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October 3, 2013
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Jim Porter: Police dog’s scent error leads to reversal

Scent dogs are part of a police department’s arsenal. But like with their human masters (Is that politically correct?), scent can be deceiving. Take the case of Los Angeles police dog Reilly whose scent evidence was the key factor in convicting Gilbert Aguilar of first-degree murder.

PARKING LOT SHOOTING

John Guerrero and three others were in a red Mitsubishi in a KFC parking lot in Los Angeles when a young male wearing a dark baseball cap got out of a white Volkswagen Beetle and shot Guerrero seven times. A police artist made a sketch of the suspect that was widely circulated.

Gilbert Aguilar was ultimately convicted of first degree murder and sentenced to 50 years in prison based on sketchy and inconsistent eye witness testimony, the similarity of the sketch to Aguilar, and most importantly the critical scent evidence of our star police dog Reilly. It turns out Reilly was no Lassie. Apparently he couldn’t tell the difference between a pot roast and a tuna salad.

THE REAL KILLER

While our case does not involve a one-armed man, it has similarities to “The Fugitive,” one of my favorite TV programs in the old days, and a pretty good movie too.

There was a lot of evidence that a fellow by the name of Osuna, who was known by everyone as “Gangster,” was the real shooter, but the prosecutor instructed investigators not to look into evidence linking Gangster to the shooting. There was evidence Gangster was driving a white Volkswagen Beetle that day, and in fact, his younger brother had been shot the week before by unknown perpetrators, so Gangster was looking for revenge.

Additionally, Gangster and Aguilar looked remarkably similar, and similar to the police artist’s sketch, to which I can attest as their photos are part of the federal Court of Appeals Opinion.

Eyewitnesses who originally told investigators that the shooter was short changed their testimony and said the shooter was tall — like Aguilar — at Aguilar’s trial. One potential witness said Gangster told him he had shot “the fool” in the car.

REILLY THE POLICE DOG

The key evidence to convict Aguilar was police dog Reilly’s scent alert when he was presented with four “scent pads.” Reilly alerted to the scent found in the white Volkswagen taken more than a month after the shooting. The prosecutor’s closing argument was that the defense attorneys could not explain why Gilbert Aguilar’s scent was in the shooter’s vehicle. Reilly got his man — Aguilar.

REILLY IS NO RIN TIN TIN

It turns out that Reilly had a prior record himself. He had misidentified someone in a crime, in fact on more than one occasion, such that his evidence in a prior trial was excluded.

The prosecutors in the Aguilar case apparently “forgot” to mention that to Aguilar’s attorneys even though they are legally obligated to disclose all potential exculpatory evidence that could acquit Aguilar. They didn’t.

The prosecution’s failure to disclose that Reilly had a history of mistaken identifications was fatal to the prosecution’s case. New trial for Aguilar. Early retirement for Reilly.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at porter@portersimon.com or at the firm’s web site www.portersimon.com. Find us on Facebook.


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Tahoe Daily Tribune Updated Oct 3, 2013 05:21PM Published Oct 3, 2013 11:56AM Copyright 2013 Tahoe Daily Tribune. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.