Darrel E. Swisher’s case now heads to circuit court. There, Prosecutor Brooke Fitzgerald and defense attorney Greg Schillace are likely to renew the battle over evidence, police procedure and witness reliability that began during Thursday’s hearing.
That the animal was injured wasn’t an issue in Thursday’s hearing before Doddridge Magistrate Jamie Lou Moran. Deputy Swisher testified about observing the missing patches of skin.
Dr. Cynthia Linner, a veterinarian at Bridgeport’s Animal Clinic who treated Duke following his seizure by Animal Control Officer Rodney Trent, said the animal had suffered something akin to road rash on its thigh, front leg and inner leg. The dog also had its carpal pads — located inches above the paw — torn on its front legs, Linner testified.
The dog was hospitalized for a week at the veterinary clinic.
Schillace appears ready to attack the state’s case on multiple fronts.
First, Schillace tried to question the main eyewitness to the alleged animal cruelty about his criminal history. While Fitzgerald successfully blocked that during Thursday’s hearing, it’s likely that, if the case goes to trial, jurors will learn that the man is listed on the state’s sex offender registry or at least that he has a prior felony conviction.
The eyewitness testified Swisher used what appeared to be a ratchet strap to attach the animal to the four-wheeler, leaving maybe a foot between the vehicle and the dog. The animal’s front paws weren’t touching the ground during the time he could see it, the eyewitness testified. The dog tried to keep up at first, but then flipped over on its side and was dragged, the eyewitness testified.
In his closing argument, Schillace said that testimony didn’t comport with the animal having suffered the injuries to the carpal pads on its front leg.
Schillace also appears ready to attack the charge in the same way defense lawyers go after malicious assault counts. In both malicious assault and felony animal cruelty, intent is a key part. Prosecutors and defense attorneys alike agree that proving intent can be tough.
But the defense’s bid to probe whether Swisher intended to torture Duke appeared to take a hit during the hearing when Dr. Linner and Deputy Menendez insisted they believed that’s just what had happened to the black Lab.
And when Schillace asked Trent if he’d seen other dogs injured in a similar manner, the animal control officer replied, “No, not very many.”
Trent grew up on the same road as Swisher’s horse, cattle and chicken farm, and he has known the defendant throughout his life.
Schillace later asked Trent whether some Doddridge County residents treat their animals’ injuries. “Probably not injuries this bad,” Trent replied.
Schillace also questioned whether the animal could have been injured some other way in between the time the eyewitness allegedly saw what happened and Deputy Menendez’s arrival.
Swisher voluntarily gave up the animal to Trent, the animal control officer testified. Swisher said Duke was a “pretty good dog but won’t stay home,” Trent testified.
Duke had no symptoms of malnourishment or dehydration, witnesses agreed.
He didn't starve the dog. He was angry because the dog kept running off so he decided to 'teach it a lesson' and drag it home. Case closed.
Another issue that could come up is whether Menendez needed to obtain a search warrant first, according to statements during Thursday’s hearing.
If convicted of the felony, Swisher could face 1-5 years in prison and a fine of between $1,000 and $5,000. Swisher also would lose ownership of the dog and would be precluded from possessing any animals for 15 years.
Duke has been released from the Audubon Animal Clinic to the Doddridge County Humane Society. The Humane Society assists him voluntarily by arranging for care of injured animals in Doddridge County, Trent testified.
Swisher remains free on a $1,000 personal recognizance bond.
(Theet.com - March 9, 2017)
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