Richard Winfrey Sr. is beside himself. He cannot understand why the state’s highest criminal court has taken more than six months and still not decided whether his 24-year-old daughter should be acquitted of murder when the primary evidence used against her — a dog-scent lineup — has been discredited.
“How in the heck can these people keep her in prison?” he asked during a phone interview from the frigid oil fields of North Dakota, where he works 14- hour days, seven days a week, to pay for his daughter’s legal fight. “I can’t stand what they’re doing.”
There is no legal deadline for the Texas Court of Criminal Appeals to issue an opinion, and the chief deputy clerk for the court said the reason a case remains pending is not a matter of public record.
Richard Winfrey Sr., and his daughter, Megan, and his son, Richard Jr., were charged with murdering Murray Burr, a janitor at Coldspring High School in Coldspring, during a robbery in 2004. Richard Winfrey Sr. and Megan Winfrey were convicted.
The charges against the Winfreys were based primarily on evidence gathered during a dog-scent lineup conducted by a self-trained police deputy whose work in the Winfrey case — and others — was found unreliable by experts. They said the deputy had cued the dogs to “alert” for the suspects during the scent lineups.
A jury acquitted Richard Winfrey Jr. in 13 minutes after his lawyers had presented evidence that the dog-scent lineup was a sham.
In April, Megan Winfrey’s lawyers told the criminal appeals court that the dog-scent evidence used to secure her conviction and a life sentence was “bad science masquerading as science.” In her father’s case, the same court found that the dog-scent evidence alone was not sufficient for his conviction. They issued an acquittal in 2010, and he was released.
But Megan Winfrey remains in the Murray prison unit for women in Gatesville.
“No matter what, by George, we need to not let this go like this,” Richard Winfrey Sr. said. “How long can they actually wait?”
District Attorney Richard Countiss of San Jacinto County has said that the jurors in Megan Winfrey’s 2009 trial had also considered her seemingly suspicious behavior when they convicted her, a decision he said should stand. And despite the acquittals of her father and brother, Countiss told the appeals court in April that he believed the Winfreys had committed the murder.
“I think the state should win the appeal,” Countiss said in an interview this week.
In 2009, Jeff Blackburn, the chief counsel at the Innocence Project of Texas, wrote a report that denounced the use of dog-scent lineups like the one used in Winfrey’s case. In an interview this week, he called the technique the “junkiest junk science that ever was.”
He said the appeals court, which typically favors prosecutors, was simply stalling, unwilling to admit that the Texas criminal justice system had made another error.
“Every single day they don’t make a decision means another day of life that is taken away from this girl,” Blackburn said.
As Megan Winfrey awaits the court’s decision, life outside prison marches on. Megan Winfrey’s daughter, who was 1 when her mother was arrested, is now 6. On June 1, Megan Winfrey’s grandmother and primary caregiver, Joyce Winfrey Berry, died.
“It’s hard enough to lose a treasured grandmother, but she was really losing her mom,” said Shirley Baccus-Lobel, Megan Winfrey’s lawyer.
Baccus-Lobel said she had given up predicting when the appeals court might make a decision. “I don’t really know what they’re up to,” she said.
Richard Winfrey Sr. said that despite his frustration that his daughter remained behind bars, there were some reasons for hope. The U.S. Court of Appeals for the 5th Circuit recently agreed to allow Richard Winfrey Jr. to proceed in a lawsuit against the dog handler and two other officers involved in the murder investigation.
Richard Winfrey Jr., who was a teenager when he was arrested, is seeking compensation for the more than two years he spent in jail awaiting trial. The money, his father said, could help the family hire investigators to determine who killed Burr.
“It may take that to get her out,” he said of his daughter.