Sniffing Out the Truth

Commentary by Crusader

December 2001  

*submitted to The Orange County Register but they refused to publish

     I am the activist formerly known as Andrew Exler who successfully reversed Disneyland's 28-year-old ban on same sex dancing after filing a civil rights lawsuit against the amusement park in 1980.  I have devoted nearly my entire life to activism, including civil rights issues, women's rights, prison outreach, and the fight against AIDS.
 
     After reading the December 3, 2001, issue of The Orange County Register, it appears to me that Earl Henry Rhoney IV is still under investigation for the January 1994 murder of Patricia Lea Pratt in Irvine.  This despite the fact that Earl was released from Orange County Jail in June 1998 after two superior court judges and the California Court of Appeals ruled that the so-called dog scent evidence in his case was . . . well . . .  for the dogs.  
 
     Even after Earl's death in October, Irvine Police Department Detective Larry Montgomery gives the impression that he will still try to prove that Earl beat, strangled, and murdered Pratt.  The sad thing is that while Montgomery and a dog handler's bloodhounds continue sniffing down the wrong road, whoever is truly responsible for Pratt's murder is still walking the streets.  As a result, the good citizens of Irvine may never know who actually committed this horrendous crime!                  
                        
Earl Didn't Do It!
 
     As a close friend and believer in Earl's innocence, I feel it is time for me to break my silence and speak out against the lies and misinformation that various individuals have fed and continue to feed to the public about this case.  Before I do that, I feel it is important to provide some background information on how I stumbled across Earl's case and our first chance meeting.

     I was visiting my folks in Anaheim in December 1996, shortly after Earl was convicted of murdering Patricia Pratt and burglarizing her home in the upscale Turtle Rock community of Irvine.  While at my parents' house, I happened across a lengthy jailhouse interview with Earl in the Los Angeles Times (Orange County edition).    I
remembered seeing something on the Internet about the case around the time of the trial, but I never imagined that reasonable people would convict someone of a serious crime based mainly on the so-called dog scent evidence.  

     When I read the Times interview, I turned to my mother and said, rather sure of myself, "This kid didn't do this crime.  He is very sincere and honest in this interview, and I do not believe he murdered this woman nor did he burglarize her home.  I am
going to see if I can help him."

     Immediately after reading the article, I wrote a letter to Earl, stating my feelings, and I offered my help to him as an activist and researcher because I very much believed in his innocence and thought the jury verdict was a sham.

     While recovering from emergency retina surgery in early 1997, I began visiting Earl on a regular basis in Orange County Jail.  Between that time and his release on June 22, 1998, I calculated that I had visited Earl on at least 27 occasions.  We corresponded with each other on a weekly basis, and talked on the telephone rather often.  I really got to know Earl, and although we were 15 years apart in age, and came from very different social and religious backgrounds, we somehow became very good friends.

     I attended Earl's sentencing hearing in 1997, at which time Earl's trial judge, Anthony J. Rackauckas, granted a defense motion for a new trial.  I also attended a subsequent pre-trial motion hearing.  I spent many hours researching everything I could about Earl's case, especially anything I could find about bloodhounds, since this is what the prosecuting attorneys claimed was the strongest part of their case against Earl.

     When Earl was finally released on June 22, 1998, after serving 3 1/2 years in jail for a murder he did not commit, he came to live with me for a few months in Palm Springs.  After just a few days of laying out by the pool, and watching every movie I owned, Earl was focused on getting a full-time job, learning how to drive, buying a car, and getting engaged to his high school sweetheart.  Even after Earl relocated to Northern California, we kept in frequent contact by telephone, mail, e-mail, and he visited me once or twice each year.  

     In response to comments to the media by various individuals that Earl "would kill again" and that he was a "danger to society," I have to say that Earl was one of the most trustworthy, polite, and considerate friends that I have had in my 40 years on this planet.  Earl did not steal from me, he was never violent, and he was always very personable and friendly.  He was basically your "All American Boy" type of person, and he had many positive goals and ambitions.  

     It quickly became evident to me that because he was confined for so many years, that he was rushing to catch up with life.  That rushing may have very well been a major factor in his violent death this October when he hit a retaining wall while driving on a San Jose freeway.  The bottom line is that Earl only got to experience three years and four months of freedom during his adult life. 
 
     Detective Montgomery told Los Angeles Times columnist Jerry Hicks in June 1998 that the Pratt murder was special to him.  "This was a case where the victim was just minding her own business, completely innocent," he said.  Well, I feel the exact same way about Earl Rhoney.  He was totally innocent of the Pratt murder and burglary.  After serving nine months in juvenile hall for an unrelated burglary he committed with several other teens in 1994, he was ready to get on with his life.  Unfortunately, he never really got that chance because of some desperately concocted dog scent evidence, an overzealous police investigator and prosecutor, and a very naive Orange County Jury.

At the Wrong Place at the Wrong Time

     According to media reports, law enforcement officers had absolutely no leads in the Pratt murder, and it was reported that there were rarely serious crimes in Irvine.  The only reason Earl became a suspect in the Pratt murder case is because he was
literally at the wrong place at the wrong time.  According to court documents, media reports, and by Earl's own admission, he committed a burglary with six other teenagers about a mile from the Pratt residence one to two weeks prior to the Pratt murder and
burglary. 
 
     Earl told me that a good portion of his murder trial was actually a retrial of the prior burglary.  Unfortunately, his defense attorney was not successful in convincing the trial judge to bar the prosecution from introducing evidence and testimony about the
burglary.  In the end, it is very apparent that this portion of Earl's murder trial clearly prejudiced the jury and persuaded them to convict him of first degree murder with special circumstances (burglary). Had Earl been an adult at the time of the Pratt crime,
he would have been eligible for the death penalty.  Instead, at worst, he faced life imprisonment.
 
Dog Trailing Experiment

     Several media reports about this case have stated that Earl was the first person in California to be convicted largely on evidence from a scent machine.  The murder victim's sweatshirt was "tape lifted" for evidence and then stored in an evidence freezer for nine months.  Sometime prior to the trailing of Earl's scent, the sweatshirt was unfrozen, and scurf was extracted onto a gauze pad and placed into a plastic Ziploc-type bag.  A California Court of Appeal decision in this matter defines scurf as "The dry, scaly matter, composed mostly of dead skin cells, which falls from all of us continually.  It is this scurf, and the bacteria which act upon it, which produces the scent tracking dogs smell." 

     Upon Earl's release from Orange County Juvenile Hall on October 21, 1994, members of the Irvine Police Department (including Montgomery), and scent machine co-inventor and dog handler Larry Harris, set up an "experiment," which as far as any reasonable person would see, failed!   The experiment, which was videotaped and presented by the prosecution at Earl's trial, is said to prove that a bloodhound trailed Earl from juvenile hall to a nearby mall (The City),  which is now The Block shopping center.

     I was able to view the tape during a June 5, 1998, pretrial hearing.  This hearing was related to what was to be Earl's second trial in this matter.  The tape shows Earl sitting on a bench, crossing the street, and then walking down a sidewalk.  Dog handler Harris then scents Duchess with an article said to contain the scent of  Pratt and the scent of whomever murdered her.  Harris has maintained that Duchess could distinguish between the scent of Pratt and the scent of the killer, but this "secondary scent" theory sounds like it came from a "Scooby Doo" cartoon, and no one has been able to convince me that a bloodhound can do what Harris claims.
 
     The videotape clearly shows that the scent article used to scent Harris' dog is still in his hand while the dog purportedly trailed Earl's scent.  This of course, is a major error on Harris' part which totally invalidates the experiment, according to information I
obtained while researching bloodhounds and trailing.   In the video, Earl is walking a straight line, but Duchess meanders from the left of Earl's path, on the opposite side of where he was walking.  (Keep in mind that law enforcement, and possibly Harris, knew every move Earl was making.  The law enforcement officers were all wired to each other so that they could communicate during the so-called experiment.)
 
     At one point in the tape, Duchess identifies a woman as Pratt's killer, but according to what Earl told me, Harris testified in court that Duchess went up to the woman  because she was smoking, and the cigarette smoke confused Duchess.  (There was also a lot of trial testimony from Harris about the wind, and how the wind
would blow scent all over the place, which is said to explain why Duchess was wandering all over the place instead of being in sync with the path Earl was walking.)
 
     There is another point in the tape where Harris is seen waiting at a crosswalk for the light to change with Duchess.  If the dog was really trailing Earl's scent, she would not have stopped at the red light, but would have continued going wherever the scent was, which simply was not observed during any portion of this tape.  Oddly enough, the very end of this so-called trailing, where police detective Montgomery and dog handler Harris insist Duchess "identified" Earl, was not captured on the video.
 
     Earl told me that after he made his phone call at the shopping center, he turned around because there was a commotion behind him and that he had seen a guy coming down the stairs with a dog.  At the time, Earl thought that was "funny" because it is not often that one sees a dog inside a shopping center.  Earl was about to move out of the guy's way to let him go by with the dog, and that was when he was rushed by Montgomery from behind and was told that he was under arrest for the murder of Patricia Pratt.  Earl clearly recalls that the dog did not really get close to him, did not bark at him, and did not jump up on him.  So, just how this experiment proves that Duchess identified Earl's scent as that of the killer still remains a mystery to me.

     This failed experiment by Harris and Montgomery (at the expense of an innocent young man, not to mention the taxpayers of Orange County) is even more evident from Harris' testimony at trial, and the court rulings and appellate decision that followed.
 
     Harris' testimony at court hearings and the trial was basically that Duchess could do no wrong, that she could never make a mistake, and he then became very defensive and argumentative when cross-examined by Earl's defense attorney.  This was the very
testimony that trial judge Rackauckas referred to when he granted the defense motion for a new trial on March 10, 1997.  During that hearing, according to my notes, Rackauckas stated that Harris was "as biased as any other expert . . . did not answer questions on how his dog was performing . . . and was hard to believe."
 
     According to a January 12, 1998, California Court of Appeal decision favorable to Earl, Rackauckas was convinced by testimony he heard during pretrial motions (for the first trial) relating to the viability of the "scent machine" and the reliability of the
tracking procedures in this case.  Then, in listening to the testimony presented to the jury, he reassessed the evidence and concluded he had erred in admitting it.

Scent Evidence Was Major Part of Case

     A serious flaw with the recent Register article is that it stated the prosecution's case was "based, in part" on the testimony of a dog handler and his home invented "scent machine."  In fact, the dog handler and the scent evidence was a major part of this case, and I believe that the newspaper clearly mislead readers by not clarifying that fact in the December 3 article.  By the prosecution's own admission in public court documents from this case, they conceded the weakness of its case during the first pretrial motions by arguing for the admissibility of the tracking evidence on the basis that the evidence was "particularly important here because there is not an abundance of other evidence connecting defendant to the killing."
 
     Another flaw in the December 3 Register article is the following:  "In recent months, Irvine police investigators secretly got a sample of Rhoney's scent while he was on an interview for a job caring for the elderly, Montgomery said."  In fact, that job interview actually took place closer to a year ago, which I would certainly not define as "in recent months."  If Detective Montgomery is so confident that the scent evidence he uncovered as a result of Earl's job interview would implicate him in the Pratt murder, why didn't Montgomery do something with it right away?  Of course, now that Earl is no longer alive and cannot defend himself, the detective brags about how great his scent evidence is and then has the gall to state that he is going to set up another scent experiment.
 
     It is very obvious that Montgomery is still in denial about the fact that he was wrong about this case from the very beginning.  It seems to me that Montgomery should have changed the course of his investigation after his scent trailing "experiment" failed in 1994.  If he had done that, perhaps by now the real killer would have been brought to justice.  [Needless to say, as of 2007, The Register nor any media outlet have released the results of this second experiment conducted after Earl's death.]
 
Dog Handler Motivated by Profits

     I have always contended that profits, and not the reliability of Duchess or the scent contraption, was the driving force behind Harris' courtroom testimony in this case.
 
     Harris, and East Coast dog handler William Tolhurst, had a lot to gain financially from Earl's murder conviction.  A December 23, 1996, report on CNN regarding the scent machine stated that several hundred police and sheriff departments were using the
machines, which were being sold for $450 each at that time.  With that in mind, if Harris and Tolhurst sold machines to just 200 departments, that was the equivalent of $90,000 to the pair for a piece of equipment that was similar to a Dust Buster handheld vacuum, and fairly inexpensive to manufacture.  Earl's trial and subsequent conviction made international news, so it is a safe bet that sales of the scent machine skyrocketed as a result of Harris' involvement in this case.
 
     Another financial motivator for Harris is the $10,000 that he received from Pratt's then-employer, AirTouch Cellular, as a reward for supposedly "cracking the case." I hardly doubt that Harris returned the reward money to the company after two local court rulings, and an appellate court decision, held that Harris, his dog, and his machine, were not credible!

Scent Evidence Was Contaminated

     During the June 5, 1998, pretrial motion hearing relating to Earl's second trial, testimony was given and evidence was provided documenting that a number of different people handled the sweatshirt from the time of Pratt's death, to the freezing of the item, up to the defrosting of the item and the scenting of Duchess upon Earl's release from juvenile hall in 1994.  Judge John J. Ryan, who also presided in the Charles Ng serial killer case, presided over the hearing.  Earl's trial judge, Anthony Rackauckas, was running for the office of Orange County District Attorney and was no longer hearing criminal or civil matters.
 
     Judge Ryan said in open court that, prior to the hearing, he spent hours reviewing voluminous documents about the case, including transcripts, which by now consisted of numerous storage boxes.  After a lengthy hearing, Ryan agreed with Earl's defense attorneys that Pratt's sweatshirt was contaminated and that it would be too confusing to present such evidence to a jury.  According to my notes and media reports,  Judge Ryan said that he could not believe that a jury based a murder verdict on the scent evidence, and he barred it from being presented during a retrial.  He said the jury "could not have convicted anybody on that dog evidence.  You never really have an identification."
 
"60 Minutes II" Segment Slams Scent Evidence
 
     According to a televised "60 Minutes II" segment on Earl's case that aired February 10, 1999, on CBS, nothing directly linked Earl to the scene of the crime.  There were no fingerprints, no DNA, and no eyewitnesses.  All of the investigators had was their belief  that Pratt's clothing contained the scent of the killer.
 
     Isn't it strange then that Detective Montgomery - - after twice taking DNA from Earl while he was in juvenile hall for the unrelated burglary - - told Earl that the DNA "matched" and that investigators knew that Earl had murdered Pratt.  No DNA was presented during Earl's trial, because it was a ruse by Montgomery who was hoping
that he would get Earl to confess to crimes that he did not commit.  Montgomery's actions, then and now, really demonstrate how desperate Montgomery and the Irvine Police Department were to get Earl convicted, because they just couldn't crack this case, and the attitude has been that someone has got to pay for the crimes against Pratt and her family.
 
     According to the "60 Minutes II" segment, as many as 17 investigators were at the Pratt crime scene, and at least 4 of them actually touched the item of clothing that was used to scent Duchess, thereby leaving their scent behind.
 
     When asked by "60 Minutes II" if he believed Earl was the murderer, scent machine co-inventor and dog handler William Tolhurst said, "The dog is telling us that, it's not the handler telling them that."
 
     Dr. Lehr Brisbin, Jr.,  a University of Georgia Ecologist, was asked by "60 Minutes II" to view the videotape of the so-called trailing presented in Earl's trial.  Brisbin has trained and tested bloodhounds on their ability to follow scent.  When Brisbin was asked if he saw a dog trailing Earl's scent in the video, he responded, "No."  When asked what he did see in the video, Brisbin said, "I saw a dog taking a walk."  Brisbin also stated that while a trailing dog may lead the handler to a person, it may not be the person who committed the crime in question.

     Also in the segment, Earl was asked whether he murdered Pratt or burglarized her home.  His response:  "No, I did not.  Everything they say as far as the scent machine, the pad; all of that sounds real good, and it sounds neat, interesting, exciting, new, and a very interesting way to get criminals, but in this instance it did not work.  And I know that because I didn't do the crime, so how could it have possibly worked?"
 
Scent Evidence Experts Favor Earl

     Andrew Taslitz is an evidence professor at Howard University law school in the nation's Capitol.  "Our faith in a dog's unerring sense of smell is based more on myth than science," he said in an American Bar Association Journal article on Earl's case that was published in August 2000.  Taslitz told the Journal that dog scent evidence can be a useful investigative tool for the police, but should never be used as proof of guilt or innocence at trial.  In the same article, Lawrence Myers, director of the Institute of Biological Detection Systems at Auburn University in Montgomery, Ala. agreed with Taslitz.  "It's great for establishing probable cause, but it's not, in and of itself, indicative of guilt."

A comment by Earl's attorney sums up the case very well
 
     "I believe in his innocence 100%," said Deputy Public Defender Sharon Petrosino in a March 11, 1997, Los Angeles Times article about the case.  "There's not a question in my mind.  I've been in this business 13 years and I've never felt so strongly that someone was not guilty."
 
Another Great Quote:
 
"This is what the founding fathers intended, that no innocent man or woman should suffer for a wrongful conviction, should be unjustly imprisoned, or worse, executed because of an overzealous prosecutor or a mistake on the part of the state. It is a good system, the best in the world."
 
--Fictional defense attorney Paul Madriani in Steve Martini's "Compelling Evidence" (1992, G.K. Hall Large Print edition).
 
Editor's Note:  Crusader is a paralegal in Palm Springs, CA.  He legally changed his full name to Crusader in 1995.