By Dan Wiessner
HUDSON, N.Y. (Reuters) - Simon is only three years
old but already an indispensable staffer at his office, where
he has displayed a knack for helping abused children navigate
an intimidating legal system.
He is also a lean, jet-black Labrador retriever.
Simon's job is to comfort children testifying or being
interviewed in court cases, a normally stressful environment.
Diane Silman, Simon's boss as the head of the Ozark
Foothills Child Advocacy Center in southern Missouri, said
Simon has helped more than 300 children brave pre-trial
interviews, and accompanies them to court when necessary.
"A four-year-old once remained engaged in an interview for
about an hour, which is pretty amazing," Silman said.
Dogs have been used to comfort victims and witnesses --
particularly children -- in and out of the courtroom for more
than 20 years, and the practice has become relatively common in
a handful of states over the last decade.
Until recently, courtroom dogs faced little more than
preliminary objections from defense attorneys.
But earlier this summer, a New York lawyer became the first
in the nation to appeal his client's conviction of raping and
impregnating a 15-year-old girl because a dog was used to
comfort her during her testimony at trial.
The girl testified with the aid of Rosie, a golden
retriever who has worked with emotionally troubled children for
years but was only recently recruited into the legal system.
Stephen Levine, the lawyer who filed the appeal, said that
the use of the dogs can affect testimony.
"The stress witnesses feel when they have to testify at
trial tends to undo falsehoods," said Levine, a public defender
in Poughkeepsie, New York. "Removing the stress deprives the
defendant of a fair trial."
The judge's decision in the case, in which the alleged
victim is the accused's daughter, will likely affect the
courtroom use of the dogs nationwide.
Levine, several experts said, is the first attorney in the
country to appeal a conviction on the grounds that so-called
comfort dogs could subconsciously sway juries and judges.
Their mere presence, Levine said, could imply to a juror
that a witness is telling the truth "because you don't need to
be comforted when you're giving false testimony."
But one of the early pioneers of using comfort dogs said
Levine is "grasping at straws."
"The dog is not giving the witness the answers," said
Andrew Vachss, an attorney who exclusively represents
children.
He and his wife,
Alice, former head of the Queens District Attorney's sex
crimes unit, first began using a dog to comfort traumatized
children during interviews by prosecutors in 1987.
Vachss later donated a German shepherd to a Mississippi
advocacy group and in 1992, that dog became the first in the
United States allowed in a courtroom to comfort a witness.
In the case now under appeal, Vachss said he is confident
the court will side with advocates of courtroom dogs, setting
an important precedent.
There has been little controversy over courtroom dogs in
states where the practice is more common than in New York.
In fact, Ramona Brandes, a public defender in Seattle
, recalled a judge who wanted a dog present during a
homicide trial to comfort everybody -- particularly the
defendant, who Brandes said was disruptive but had a particular
affinity for dogs.
Ultimately, the prosecutor rejected the judge's proposal.
Many nonprofit groups that provide dogs for legal
proceedings take steps to ensure the animals are not disruptive
in court.
"Generally we recommend they not be cute and cuddly and sit
on the witness' lap," said Ellen O'Neill-Stephens, a Seattle
prosecutor and founder of the advocacy group Courthouse Dogs.
The policy at Florida Four Legged Advocates (FLA) is that
dogs never join witnesses on the stand and stay out of the
jury's line of sight.
"My priority is the child, and I would never want to do
anything that puts a case in jeopardy," said FLA founder Andrea
Cardona, whose dog Squiggly, a mixed golden retriever and
yellow Labrador retriever, has worked on dozens of cases.
But Levine and lawyer David Martin, who represent the
accused rapist, argue judges are creating law by allowing dogs
in their courtrooms -- decisions better left to state
lawmakers.
"If you want to use these dogs, go to your legislature,
hold public hearings and then determine what's in the best
interest of all the parties concerned," Martin said.
Levine said he does not expect a ruling on the appeal until
next year at the earliest.
(Editing by Barbara Goldberg, Ellen Wulfhorst and Greg
McCune)
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