According to a weekend news report, “Appearing in Court, Dog Ignites Legal Debate,” criminal defense lawyers in New York are complaining that courtroom service dogs have provided an unfair advantage to the State.
In a rape trial, Rosie the court-approved therapy dog, not only provided her comforting canine ministrations to the 15-year old victim but also gave the prosecution a “win.” And the defense is howling about it.
According to the news account by William Glaberson in the “New York Times,” “Defense lawyers argue that the dogs may unfairly sway jurors with their cuteness and the natural empathy they attract, whether a witness is telling the truth or not.”
“Crucial comfort” not gamesmanship.
And as we all know, when it comes to making its case, it’s never about gamesmanship for the prosecution. It’s about providing “crucial comfort” to the stressed-out and the scared. Prosecutors are never going to stoop to appealing to jurors’ emotions or fears, rather than to facts. Right?
And the prosecution never makes improper remarks either. Right? Of course, this is meant to be tongue-in-jowl. An article last year, “Closer look: Prosecutor misconduct takes many forms,” USA TODAY identified 61 cases where prosecutors did precisely that, including in US v. Ayala-Garcia, No. 07-2129 where the prosecutor’s improper remarks “so poisoned the well that a new trial is required.” And also see “No proof of “deliberate indifference” as prosecutorial bacon is saved by high court” and “Does cash-for-convictions cure prosecutorial “deliberate indifference”?
Going to the dogs.
Last year, in a news story,“Going to the Dogs—in a Good Way,” the ABA was all over the growing development of service dogs appearing in court. Last time I looked, there are 2 such court dogs in Maricopa County, Arizona. And at its 2010 annual convention, the Arizona State Bar even scheduled a dog and pony show (minus the pony) and featured the 2 lovable court canines.
– – – – But back to New York. Maybe the defense lawyers are going about this from the tail instead of the snout end. If they want to avoid the defendant-adverse collateral effects of engendered sympathies among jurors, they ought to insist that instead of adorably likable Golden Retrievers or good-natured Labrador Retrievers, the courts employ equally affectionate but misunderstood and under-appreciated breeds like Dobermans or German Shepherds.