Timmy: Lassie! What’s wrong, girl?
Lassie: Unnn rrrrrr owwww wowwww.
Dad: What’s she saying, what’s she saying?
Timmy: She’s saying the Jones farm is on fire three miles down the road!
Lassie: rrrrrr wowwww.
Timmy: And it was arson caused by an accelerant placed in the barn!
Even more unshakable is the belief that dogs are infallible judges of character:
Stranger: Howdy, folks, I’m Reverend Slickmouth collecting funds for poor old Widow Shoehorn and her six little ones who haven’t had a bite to eat since that tornado blew their house away.
Lassie: Grrrrrrrrr! Yowf! Yowf!
Timmy: Lassie, stop that! Gee, Reverend, I don’t know what’s got into her.
Stranger: (drawing a gun) She knows I ain’t no parson, I’m Blackie Sixgun just escaped from the penitentiary. You put your hands up and get that mutt away from me!
If you think we’re exaggerating, here are some recent cases:
A suspected drug dealer is arrested and his money put into a desk drawer at the police station (People v. Kennedy AD3 2010). A “trained” dog is sent into the room, scratches at the drawer and “alters its breathing pattern.” This is admitted at trial as proof that there was cocaine on the money.
Clearly, the dog made a testimonial statement offered for its truth, thereby implicating the Sixth Amendment right to confrontation. Astonishingly, he was never even called, let alone subjected to cross-examination! The great engine of truth might have revealed that he didn’t have a clue what cocaine smelled like, he only knew that this was the drawer where the Milk Bones were stashed. The Appellate Division affirmed without so much as altering its breathing pattern.
A bloodhound following a scent is admissible as “independent, relevant evidence, analogous to a blood test or breath analysis” that the defendant is the perpetrator (People v. Tunstall AD3 2000). Based on what? Uncle Tom’s Cabin?
Last time we were at Kennedy Airport, a K-9 in a yellow uniform started nosing at our backpack. Turned out Snoopy’d been alerted by the residue of a peanut butter sandwich. Imagine “a blood test or breath analysis” that can’t tell whether you’re drunk or just had a peanut butter sandwich.
In a flash of judicial skepticism, a Massachusetts federal court found a lawyer ineffective for not challenging trial testimony about Billy the arson-sniffing dog, resulting in what was likely a wrongful conviction. The court wrote:
It is not an understatement to say that Lynch, the dog handler, was permitted to testify to an almost mystical account of Billy’s powers and her unique olfactory capabilities. He presented unsubstantiated claims about the dog’s accuracy. He was allowed to go on at great length about his emotional relationship with the dog and his entirely subjective ability to interpret her face, what she thought, intended, and the “strength” of the alert she gave in this case (U.S. v. Hebeshie, U.S.D.C. Mass. 2010).
Last week a Poughkeepsie prosecutor credited a sex abuse conviction to Rose the golden retriever who, in a jury trial, sat in the witness stand “comforting” the 15-year old complainant throughout her testimony.
But Rose has to share credit with the judge who, after a hearing, issued a decision finding that the complainant suffered from PTSD “from the events alleged in the indictment and bill of particulars” and would be “re-traumatized” by testifying without having Rose with her.
It seems odd, even for Upstate, that a judge would write a pretrial decision offhandedly assuming the truth of “the events alleged in the indictment and bill of particulars,” namely, that the defendant committed the charged crime. Who needs a dog when they have a judge who announces the defendant’s guilt before trial?
Some sixth sense must have told the judge that even the Appellate Division might wonder whether having the accuser be nuzzled by a dog throughout her testimony isn’t a teeny bit prejudicial. Apart from the intended appeal to sympathy by portraying the girl as irreparably damaged by “the events alleged,” the dog is vouching for her character and credibility. People can be fooled, but not dogs, who always know who’s the good guy and who’s deceptive, see Lassie. Rose’s canoodling is a sign of approval and hence of the complainant’s truthfulness.
The judge accordingly invited defense counsel “to prepare proposed limiting and curative instructions.” We love it when judges prejudice your client and then expect you to help them insulate their folly from review. Our curative instruction would have proposed that his Honor go back to Fishkill Village Court where he came from. Alternatively, we would have moved for the defendant to be provided with a golden retriever to nuzzle. In fact, why not dogs for everyone – lawyers, judge and jury?
Hopefully the Appellate Division will reverse before every sex abuse trial becomes a petting zoo. But we’re not going to alter our breathing pattern about it.