Posted 11:41 pm Thursday, December 15, 2011
Lawyers Take On Canine In Court
DAYNA WORCHEL
Staff Writer
Staff Writer
Two Tyler defense attorneys say they plan to fight the use of a Smith County courthouse facility dog in any child sexual abuse case they defend because the dog's presence may unfairly prejudice the jury against their clients.
Jason Cassel, whose office is in Longview and who frequently defends criminal cases in Smith County, drafted but has not filed a "motion to exclude a service dog accompanying the state's witness before a jury" shortly after seeing a news story in February about Macy, the courthouse facility dog used to comfort a child victim as the child testifies before a jury about alleged abuse.
A copy of the motion was published in the November issue of Voice for the Defense, a publication of the Texas Criminal Defense Lawyers Association, a state association for criminal defense attorneys.
The Tyler Morning Telegraph published a story in February, shortly after Macy came to work for the Smith County District Attorney's Office. The dog is specially trained on how to behave in a courtroom, and provides a way to comfort children as they testify in court about alleged sexual abuse.
"I don't have a case where it would be relevant right now, but I plan to file the motion to exclude the dog if I learn there is intent to use her," Jason Cassel said on Wednesday.
Macy has participated in at least two trials, usually in cases related to child sexual abuse. The Smith County District Attorney's Office plans to use the dog to help in a January trial rescheduled this week. Prosecutors announced at that time the dog is dying of bone cancer.
Cassel said he has concerns that a courthouse dog such as Macy may lead the jury to believe that a sexual assault has taken place even if it has not happened. The dog, he said, lends more believability to the child.
Cassel said he does not want the public to think he is not unsympathetic to child abuse victims, or that he wants to minimize the trauma to them.
"Any lawyer wants their case to have integrity, and the jurors should decide whether or not abuse has occurred," he said.
In his drafted motion, Cassel sites a part of the Texas Health and Safety Code, which states that the use of a "service dog" or an "assistance animal" is "used by a person with a disability who has satisfactorily completed a specific training in the use of the animal."
Another requirement stat-ed the animal must be trained by a specific organization "generally recognized by agencies involved in the rehabilitation of persons with disabilities as reputable and competent to provide animals with training of this type."
The motion asserts that anyone who represents the animal as a specially trained assistance animal with a harness or leash of the type commonly used by persons with disabilities who use trained animals when such training has not in fact been provided as stated in the Texas Health and Safety Code, "is guilty of a misdemeanor and shall be punished by a fine of not more than $200."
"The jury will tend to believe her before she says a word and no instruction the court could give would be adequate to prevent the harm. Instead, an instruction would only further point out the obvious and reinforce to the jury to disregard what they already believe, that the presence of 'Macy, the service dog' is significant and meaningful," Cassel stated in his drafted motion.
Bobby Mims, another Tyler defense attorney, supports Cassel's motion draft. He said the trial is not about the victim, but about the defendant. "In some courts, the dog gets to lie close to the victim during the child's testimony while a uniformed deputy stands behind the defendant if he testifies," Mims said.
Mims said that such contrivances as a dog "hearken back to the days of the lynch mob and guilt by public opinion. We have fought wars and Americans have died to protect the basic rights that should be protected in our courts. This animal adds nothing that is legitimate," he said.
Bingham said in a prepared statement that he is not aware of any motion filed to exclude Macy from the courtroom, but said that the defense had incorrectly referred to her as a "service" dog.
In his statement, Bingham said that Macy is not a service dog or a therapy dog, and that the District Attorney's Office would be happy for Macy to provide support for use by defense witnesses as well. "She is a facility dog that can be used to provide support for everyone who requires it, whether it is a child victim or a witness for the defense. Macy wants to help and comfort anyone in need," Bingham said in his statement.
Bingham added that facility dogs such as Macy are currently used by 12 District Attorney's Offices in eight states across the country. "The Smith County District Attorney's Office believes that her presence in the courtroom as a facility dog to accompany a vulnerable witness to court while acting as a positive, neutral companion is allowed under Article 38 of the Texas Code of Criminal Procedure," he said in his statement.
Cassel said he does not know of any other county in East Texas that has a courthouse dog such as Macy.
The founder of an organization in Edmonds, Wash. which promotes the use of courthouse facility dogs said these dogs do not fit the definition of a service dog under the Americans with Disabilities Act.
Ellen O'Neill-Stephens worked as a prosecutor in Seattle, Wash. for 26 years before taking on the duties of her organization, Courthouse Dogs, full time in November.
She said that service animals are defined as dogs that are individually trained to do work or perform tasks for people with disabilities, such as someone who is deaf, blind, or who are having a seizure.
"In contrast, courthouse facility dogs assist many people in the criminal justice system by providing a calming presence," Ms. O'Neill-Stephens said in a prepared statement.
In Washington State, she said the dogs routinely work in their drug courts to assist defendants in their recovery.
"Assistance Dogs International, a coalition of not for profit organizations that train and place service dogs such as Canine Companions for Independence considers courthouse dogs as a type of facility dog," she said.
