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(12-23-10 To the best of my knowledge, everything in this blog post is factual, and others who attended the trial have also read it and agreed. I have made a few revisions since the original publication to clarify some points, but nothing substantial has been changed. Jean continues the fight against this injustice. More to come.) S.H.
At the end of November, 2010, I was a spectator at a three-day trial in Staunton, and I came away from it ashamed to be a Virginian. I saw a 64-year-old woman's life ruined essentially because this state felt that five dogs with bad teeth were more important. The dogs were not suffering – indeed, they were in good body condition and eating well. They were of breeds in which dental problems are very common. They were being well-cared-for and even loved. But their owner was convicted of animal cruelty, had to give nearly all her dogs away, and can never sell a companion animal in Virginia again.
At the end of November, 2010, I was a spectator at a three-day trial in Staunton, and I came away from it ashamed to be a Virginian. I saw a 64-year-old woman's life ruined essentially because this state felt that five dogs with bad teeth were more important. The dogs were not suffering – indeed, they were in good body condition and eating well. They were of breeds in which dental problems are very common. They were being well-cared-for and even loved. But their owner was convicted of animal cruelty, had to give nearly all her dogs away, and can never sell a companion animal in Virginia again.
Jean Payne Cyhanick had been a breeder of toy dogs. I'm a hobby breeder of whippets. She kept her dogs in a kennel and sold her pets locally. Ours all live in the house and people have come here to buy our puppies from as far away as Texas and Ontario. She registered with the Continental Kennel Club (CKC) and we with the American Kennel Club (AKC). Jean's puppies are all bred to be lapdogs. Some of our dogs compete in dog shows, lure coursing, agility, obedience, and even freestyle dancing. You wouldn't think we'd have a lot in common.
What we do share is a love for dogs and a serious concern about the future of dogs. I've talked to Jean several times over the past couple of years about the animal rights movement in Virginia, but I'd never met her in person till I visited her at her kennel this past August. I found there an intelligent, compassionate woman whose life was her dogs.
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I saw happy, healthy dogs who were very obviously loved and who loved Jean. The photos here were taken that day. Some of the dogs were, if anything, a bit overweight. All the dogs were either neatly trimmed or in full coat, well groomed. I saw not one mat and no evidence of fleas and even though it was August, I didn't see any flies and there was minimal odor. In mid-November, my husband Walt went to Jean's kennel and saw essentially the same thing I did. What we saw was a good breeder without a fancy kennel. The dogs did not seem to care what the place looked like. It was clean and secure.
Jean has been breeding small dogs for over 30 years. She began breeding because she loved dogs and because she had a disabled son and needed a job she could do at home. She believes that dogs are not happy in “sterile environments” with cages and concrete, so she set up her kennel as a warren of yards and heated dog houses, with toys and bones and paths going here and there. Over the years her dogs thrived and her kennel grew.
She always had help caring for the dogs . Her teenaged children worked alongside her, and after they left home, she brought in a series of young homeless men who worked in the kennel for room and board. Jean told them there were three rules. “Don't mistreat my animals, don't lie to me, and don't steal from me.” It was a win-win for Jean and for the young men. They got back on their feet and she had help with the dogs.
When Jean began breeding dogs, she bought property in the country. Seven years later, it was annexed by the city. Her kennel was grandfathered in. It is not beautiful. She has little money and, in her own words, she “uses everything.” Most of her pens are chainlink, but some are reinforced with hog fencing; there are some concrete pads, but also wooden walkways. There's dirt and grass in most pens, and every one has shade and sun. Vines are allowed to grow because Jean believes dogs like to have “green around them.” Walking through, you wind around little paths among the pens. The pens are large – the smallest are 20' by 10', and the largest is 160 feet long and 20 feet wide.
When Jean began breeding dogs, she bought property in the country. Seven years later, it was annexed by the city. Her kennel was grandfathered in. It is not beautiful. She has little money and, in her own words, she “uses everything.” Most of her pens are chainlink, but some are reinforced with hog fencing; there are some concrete pads, but also wooden walkways. There's dirt and grass in most pens, and every one has shade and sun. Vines are allowed to grow because Jean believes dogs like to have “green around them.” Walking through, you wind around little paths among the pens. The pens are large – the smallest are 20' by 10', and the largest is 160 feet long and 20 feet wide.
When I visited, no dog was alone, except for mothers expected to whelp soon. Each pen had anywhere from five to ten dogs, and they appeared happy, social, and healthy. They were obviously accustomed to being picked up frequently and jumped on us with tails wagging.
Mothers with pups had private indoor/outdoor runs and weaned puppies were in raised pens inside the kennel building. Every puppy pen had a heat lamp, shredded paper for bedding, and toys. Also inside the building is a grooming area and an office, complete with a bulletin board covered in pictures of happy pups and owners.
So why was Jean on trial for animal cruelty? On June 3rd of this year, Augusta County Animal Control Officers (ACOs) Amy Hammer and Shane Ayers, along with Rachel Touroo, staff veterinarian for animal care for the Virginia Department of Agriculture and Consumer Services, showed up at Jean's kennel for an inspection. Jean had been regularly inspected by animal control (AC), but Touroo had only been there once, in August 2009. Jean was told then that she needed to brush her dogs' teeth and that one of them needed professional attention for a loose canine tooth. There were no other complaints. The loose tooth came out within a day or two. Jean called her vet and asked if she should still bring the dog in. He said no, if the tooth had come out, there was no need.
Kennel inspections are generally done by local animal control, but the state veterinarian can send its representative if local AC asks for help or if, in the state vet's opinion, local animal control is not responding to a reported problem. No one has ever said why the state vet's rep was involved in Jean's case.
Back to June 3rd of this year. Touroo and the ACOs examined every dog in the kennel and found them all to be in good body weight and to have adequate shelter, water, and food. As the dogs were in large pens, there was no question of whether they got enough exercise. Touroo examined health and breeding records on all the dogs. Since Jean kept mixed sexes together, Touroo asked her how she kept the wrong ones from breeding. Jean's response: “Every day I pick up the girls and check to be sure they're not in season. When they are, I separate them.”
Since females are not ready to breed and will not allow breeding until roughly ten days into their seasons, this is a reasonable way of managing dogs. Our whippets are all housepets, so we also keep males and females together. When the girls go in season, they're separated. Not an unusual way for breeders to house their dogs. As long as you're handling your dogs daily and keeping an eye on things, there's no problem.
Touroo and Hammer also told her she had five dogs who needed professional dentals under anesthesia and that two dogs had eye injuries. Jean had been treating the eyes with veterinary drops.
After the inspection, Jean took the five dogs to her vet, who did two of the dentals and made appointments for the other three. He said he would have used the same drug she did to treat the eye injuries, which were caused by ingrown eyelashes.
Touroo and Hammer also told her she had five dogs who needed professional dentals under anesthesia and that two dogs had eye injuries. Jean had been treating the eyes with veterinary drops.
After the inspection, Jean took the five dogs to her vet, who did two of the dentals and made appointments for the other three. He said he would have used the same drug she did to treat the eye injuries, which were caused by ingrown eyelashes.
On July 20, Jean learned from a reporter that the state was bringing 69 misdemeanor charges against her – two for selling an underage puppy, two cruelty counts for dogs with eye infections, five cruelty counts for dogs with bad teeth, around 21 counts of “inadequate care” (less serious dental issues), one count of being a commercial kennel with more than 50 breeding dogs, and multiple records violations. (These were for not having “breeding certificates” for her females, a requirement for commercial kennels, but she was not told that until the trial started. She was never given the particulars of the charges against her.)
Following are my observations and personal interpretations of Jean's trial, which took place in Staunton Circuit Court November 29 – December 1, 2010. Because Jean's attorney decided not to have her testify, I have inserted some facts that I believe would have come out in her testimony.
THE TRIAL: DAY ONE
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The judge was Humes J. Franklin, Jr. Seven jurors – four women, three men – were seated after a “group voir dire,” in which questions were asked about belief in animal rights, whether the individuals owned dogs, whether they had read about the case and whether they had preconceived opinions about it. The question was also asked whether any of these individuals were members of any animal rights or animal welfare group. One prospective juror said he believed animals did have rights, that he had visited many breeders who were “puppy farmers” and that he did not believe dogs should be raised that way. He was not chosen for service on the jury, but one young man who was chosen gave him a “fist bump” as he passed, which indicated that they knew each other and that they were both pleased that the younger man had been chosen for jury duty. I do not believe either lawyer saw this exchange, though it was reported to Jean's lawyer later.
The prosecutor was Assistant Commonwealth's Attorney Jeffrey Gaines. In his opening statement, he informed the jury that they would be required to use a special definition of the term “emergency veterinary treatment,” which is defined in Virginia law as “veterinary treatment to stabilize a life-threatening condition, alleviate suffering, prevent further disease transmission, or prevent further disease progression.”
In other words, not the definition most people think of, which would include only the first phrase, “stabilize a life-threatening condition” and the second, “alleviate suffering.” In fact, by this legal definition, nearly every ailment that requires a veterinarian's attention would be considered an emergency: kennel cough, worms, diarrhea, a slight limp, a stomachache, ear infection...anything that might progress or that causes pain, no matter how minor. Not providing a dog with ”emergency veterinary treatment” is considered animal cruelty in Virginia.
Gaines also remarked several times that the jury would be hearing about “a lot of dogs, a lot of animals.” And he stressed that the law says “maintain,” not “own.”
Any animal that was on Jean's property on the day of the inspection was counted, whether it belonged to her or not. An Italian greyhound she was boarding for her daughter was counted, as well as several dogs belonging to her sister Katie.
The count was important because most of the charges hinged on Jean being a commercial breeder as defined by the state. A law which went into effect in January 2008 defines a commercial breeder as “any person who, during any 12-month period, maintains 30 or more adult female dogs for the primary purpose of the sale of their offspring as companion animals.” Jean did not own 30 adult females for breeding, but she had Katie's dogs there temporarily for whelping and the Italian greyhound was also pregnant, so they were counted as being “maintained” there.
Jean's attorney, Tate Love, pointed out in his opening statement that there was a lot of confusion about the commercial breeder law, as well as about what constituted an “emergency” for a vet. He said that the eye conditions which resulted in two charges of cruelty were injuries for which there was no treatment other than what Jean had provided at home. Of the five dogs with dental issues, two were treated immediately and appointments had been made for the other three. Those three were later turned over to animal control. Mr. Love also pointed out that in order to have teeth cleaned, a dog has to be anesthetized, and that involves some danger to the animal's life.
Why did Jean turn over three of her dogs to animal control? She had appointments for their teeth to be cleaned, but ACO Amy Hammer arrived at the kennel for a re-check before those appointments. She told Jean that, according to Touroo, she would be charged $250 per day per dog until their teeth were cleaned. Jean could not afford those fines and she could not afford to have all three dogs treated immediately, not were appointments available immediately. All five been seen by her vet, who said he did not consider their dentals an emergency and made the appointments for a later time. Jean felt she had no choice but to turn them over to Hammer. The only time she wept in the courtroom (that I saw) was when Hammer testified about her giving them up. “People think if you have a lot of dogs, you cannot love each one,” she told me, “but they are wrong. I cry every time I think about those three girls going to the shelter, but I didn't have any choice. I couldn't pay those fines until their teeth were cleaned."
Mr. Love pointed out that three veterinarians would be called as witnesses during this trial. One was the state's veterinarian who graduated from Michigan in 2007, had only one year of veterinary experience on the job, and then went to work for the state inspecting breeders. The other two veterinarians have treated Jean's animals for years and between them are several decades of experience. Jean's lawyer also stressed several times that the charges of both animal cruelty and inadequate care are over dog dental care and two old eye injuries and nothing more.
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| Puppy pen |
Both lawyers had “stipulated” (agreed that it was not an issue) to the general health of all the dogs. Jean was providing adequate food, water, shelter, and exercise. The “inadequate care” charges, he said, were also dental issues, and those dogs had been graded as 1-2 on the veterinary dental scale -- in other words, minimal problems. Mr. Love maintained that the dogs were well-nourished and not suffering or in pain.
The state's first witness was Ronald Stanley from Lynchburg, who described himself as a counselor for disabled children, a “peer educator.” In May of this year, Stanley said he called Jean on the recommendation of a teacher who had bought a dog from her. He and his family drove to the kennel and picked out a Pomeranian puppy. He was given a sheet of information about his puppy, CKC registration papers, handouts on feeding and caring for toy breeds, information on coccidia, giardia, and hypoglycemia, and a kennel evaluation sheet (which Jean gives to everyone who buys a puppy from her). She said to call if there were any problems.
Also in May, Jean's son shot and killed himself in her backyard. He had suffered from mental illness all his life. A few weeks before his death, a grandchild had been stillborn. In February, Jean's ex-husband had been convicted of child molestation charges and eventually sentenced to 25 years in prison. She was emotionally drained and her concentration was definitely not up to par during this time.
After Stanley got the puppy home and took it to the vet, he realized that it was underage. Virginia state law requires that a puppy cannot be sold or given away without its mother until it's seven weeks old, and this pup was five weeks. Stanley called Jean and she checked her records. She said he was right, to bring the puppy back and she would keep it for him until it was old enough. She also offered him $150 for the inconvenience. (He had paid $300 for the puppy.) He refused. She offered him a full refund and asked that he bring the puppy back. He refused again and later called her to demand another puppy. He said if she did not give him another puppy free, he would report her to animal control. Jean, distraught over the whole situation, finally agreed.
When he came to get his second puppy, she was too upset to even talk to him, so her husband Allan went out to the kennel to let him choose a puppy. He then signed a paper Jean had prepared stating that he knew the puppies were too young and releasing Jean from responsibility. Then, of course, Stanley reported her anyway, on two counts instead of one.
Stanley admitted that letting him have the puppy too young was accidental and that Jean had tried to make it right, but that he had insisted on another puppy at no cost instead.
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| Photos from happy owners |
The next witness was Amy Hammer, an animal control officer for Augusta Regional Animal Control. She testified that she had talked with Jean about selling the underaged puppies and that Jean had explained the situation and said it was a mistake.
Then Assistant Commonwealth's Attorney Gaines produced a stack of rabies certificates and went through them one by one with Hammer. He asked her to tell what each one was and to say whether that specific dog was at Jean's kennel that day. She would read from the form that it was a rabies certificate for Dog X that Jean had presented to the county for her 2010 Kennel License permit and that that dog was present at her kennel on June 3rd, if it was. For each one, Hammer stated the dog's name and pen number. Gaines would ask whether it was on the list provided by Jean when she applied for her kennel license in January, and whether Jean owned the dog.
Hammer would reply that the dog was in pen X and would add, unasked, if the dog was pregnant or nursing puppies. They started with the dogs who had recently been bred, so the impression was at first that all of Jean's dogs were pregnant or nursing. In reality, there were fewer than a dozen, and what was also not mentioned was that toy dogs have very small litters. I doubt any of these dogs had more than four puppies. But by the tenth dog, eyes were glazing over. In asking whether the dog was on the list Jean provided, the clear implication was that if it was not on the list, Jean was trying to hide something. Hammer was not asked whether the dogs were pregnant or nursing. Those statements were gratuitous.
It was also not mentioned that the pens which held five to eight dogs each, were very large. As stated earlier, the smallest are 10' X 20' and most are a good bit larger.
It was also not mentioned that the pens which held five to eight dogs each, were very large. As stated earlier, the smallest are 10' X 20' and most are a good bit larger.
Then Gaines went back through the entire list, asking whether the dog was used for breeding. Hammer counted any dog that was that was housed with a member of the opposite sex, which was nearly every dog Jean owned, including very old males and any female under the age of eight. Hammer stated that “Age is not really a consideration with the males.” The count included several dogs that belonged to Jean's sister Katie and an Italian greyhound owned by her daughter Sherry, who was out of town and had left the dog with Jean to board.
Being housed with a member of the opposite sex does not in any way indicate whether the dog is used for breeding. Females are unable to breed for most of the year and during those months they are quite often kept with males for social purposes.
On cross examination, Mr. Love asked how Hammer determined which dogs of Jean's were breeders and therefore fell under the 50 dog limit. She said if the dog was an adult female it was a breeder, though she did not count females over the age of eight or under 18 months since they could not be legally bred.
Gaines then called Dr. Bruce Bowman, who is Jean's veterinarian in Waynesboro Gaines confirmed that Dr. Bowman had consulted with Touroo in 2009 about the condition of some of Jean's dogs' teeth. He had written Jean a letter with Touroo's recommendations, which included diet-based treatment consisting of bones, chew toys, and special dental diets. Gaines asked Dr. Bowman if these were his own recommendations and he said he was simply passing on Touroo's recommendations and that was how he had presented it to Jean.
Since Dr. Bowman was a witness both for the defense and prosecution, in consideration of his time, Mr. Love asked if he could go ahead and question Dr. Bowman as his witness. Court agreed.
Dr. Bowman testified that he gave rabies shots at Jean's kennel and that, although he did not examine every dog, he felt he would have been aware of any serious health problem or pain any of the dogs were experiencing. When Mr. Love asked whether he had seen problems in any of the dogs, he replied no, that they were all in good weight and condition and seemed to be in no pain. He testified that Jean was very knowledgeable about dogs, especially puppies and puppy care.
Mr. Love then asked whether there was any danger in anesthetizing dogs and Dr. Bowman said, yes, there was always a chance they would not wake up. He said it had happened to him five or six times in his years as a vet and in fact, he has customers sign a waiver stating that they understand the risk. Mr. Love asked whether, in consultation with their vets, pet owners have to use their own judgment whether the dental condition is serious enough to risk putting the dog under anesthesia. Dr, Bowman said that yes, that was always a consideration.
Veterinarians use a scale of one to four to assess tooth condition –
1: Gingivitis -Redness of the gums, no loss of attachment between the gumline and tooth; mild tartar or discoloration of enamel.
2: Early Periodontitis - Inflammation and swelling of the gumline, ≤ 25% loss of bone and gum support (determined with xrays and probing of the gums), moderate tarter, +/- plaque deposits.
3: Moderate Periodontitis - Moderate loss of attachment and/or moderate pocket formation with between 25-50% loss of the support structures. Root exposure and movement of the tooth may be possible. Gums bleed with dental probing. Moderate to severe plaque and tartar deposits.
4: Advanced Periodontitis -Breakdown of support structures of teeth, with ≥50% loss of support, deep pockets and recession of gums. Severe plaque and tartar, severe halitosis.
Dr. Bowman stated that he does not consider a grade 2 or 3 inadequate care if the dog is otherwise in good condition and that he sees many, many dogs like that. When asked if all their owners have the dogs' teeth cleaned when he recommends it, he laughed and said, “Don't I wish!” He said about ten percent follow through. He said he suggests a dental when he sees infection.
About three quarters of all pets have some dental disease, and toy dogs are especially prone to it. Any toy breeder will tell you that tooth problems are a major issue in the breed and that regardless of how often you clean them, you can still have problems develop.
On cross examination, Gaines insisted that the “legal definition” of emergency vet care should be used and asked whether tooth decay could progress. Dr. Bowman said yes, it could.
DAY TWO
Rachel Touroo, who works for the Commonwealth under the Department of Agriculture and Consumer Affairs as staff veterinarian for animal care, was called to the stand. Gaines claimed that she is a “forensic veterinarian” and therefore knows animal law.
No mention was made of what education she received to become a “forensic veterinarian.”
Gaines produced photographs of a number of dogs and entered them into evidence and showed them to the jury. The first was a dog named Gracie, who Touroo said had a “corneal ulceration.” Jean had been treating her eye with drops, but there was “no paperwork that she had been seen by a vet.” Then he proceeded through pictures of another dog with a corneal ulceration and the five with grade 3-4 tooth decay. All of these pictures were given to the jury.
On cross, Mr. Love asked about Touroo's education and qualifications. He established that she had graduated from the University of Michigan in 2007, worked at a veterinary practice for one year, and then was hired by the state of Virginia “to help animal control officers inspect commercial breeding facilities.” She said about 60 percent of her time is spent investigating cockfighting and dogfighting, and 40 percent is spent inspecting commercial breeders.
Mr. Love asked whether it is possible for dogs to develop dental problems even if they are given the proper care and treatment. Touroo said yes, there is a genetic component. He asked if Shotzy (one of the dogs with dental problems) was worse when she was examined in June than she had been in August the year before. Touroo said Shotzy had lost a number of teeth and there were no other signs of ill health. When asked whether the dog appeared to be in pain in August 2009, Touroo replied, “Not that I observed but dogs tend to hide pain.” She agreed that Shotzy was in good body condition.
Scotty was the next dog discussed and Touroo said that Scotty exhibited pain by moving away from her when she attempted to manipulate the teeth. Love asked if it was not true that some dogs do not like having their mouths examined, whether they are painful or not. Touroo said yes, that was true.
Stormy did not exhibit pain when examined, but Touroo said that Squiggy was “very painful” when his teeth were manipulated. His body condition was good. Goldenrod also was in good body condition and showed no signs of ill health other than his teeth.
Gracie, with the eye problem, showed “no specific, outward sign of pain” but that sometimes a dog exhibits pain by “just being crankier than usual.” She said Gracie needed an ophthalmic exam, complete with measuring ocular pressure. She admitted the drops Jean was using were appropriate for animal use, but “there was no label indicating they came from a veterinarian.” “So there was nothing illegal or improper about Jean administering those drops?”
Touroo said it was a prescription medication and Jean should have gotten them through a vet.
Touroo said it was a prescription medication and Jean should have gotten them through a vet.
Tracker was the second dog with an eye problem and Jean was also treating him with drops. Touroo said the drops do not last as long as ointment and have to be applied six times a day.
Mr. Love asked if she had ever done a dental while she was a practicing veterinarian for that year and she said she had done a lot of them. He asked if she had used anesthesia for that procedure, and she replied, “Yes, to get them to cooperate and lie still.” She said she recommends full bloodwork and xrays before any dental.
In response to a question from Mr. Love, Touroo said that dogs are “not always cooperative when you brush their teeth.” When asked if vets could differ on their opinions of whether a dog needed a surgical cleaning, she replied, “I would hope not too much, but I'm sure there can be some difference.” The prosecutor asked if she had requested health records on these dogs and Touroo said there were none other than Jean's own records.
ACO Amy Hammer was recalled to the stand. She testified that after the inspection of August 29th, she had returned to the kennel “to issue the kennel license” and Jean said the dogs were being treated by Dr. Bowman. On June 18th, Hammer told her she needed a response by July 2nd and Jean was cooperative. She had made appointments for the dogs.
Animal control does not issue kennel licenses, the treasurer's office does. Hammer repeatedly stated that Jean had gotten her kennel license from “us.” When Mr. Love asked, “By us you mean animal control?” and Hammer stated yes.
On July 8th, Hammer went back to the kennel and Jean showed her the dates of the appointments for each dog and commented that it was hard to afford so many dentals (they were $300-400 each) in a short timeframe. Hammer suggested she turn over the three who had not had their dentals to animal control. Jean did not want to do this.
Jean says that Hammer said Touroo had informed her that Jean had only 10 days to have all the dogs treated and that she would be fined 250.00 per dog per day for each one not done. Jean did not have money for fines, nor could she afford three dentals immediately, so she felt she had no choice but to surrender the three dogs: Shotzy, Stormy, and Scotty.
Mr. Love: Did she appear to be upset about releasing the dogs?
Hammer: Yes, she did.
Mr. Love: She had not made a definitive decision, but she had expressed concern about being able to afford it?
Hammer: Yes.
Mr. Love: And it was your suggestion she surrender the dogs.
Hammer: Yes.
Touroo was recalled and the prosecutor went through 20 dogs, one by one, to ask about those with grade 1-2 dental issues. For each one, he asked whether Touroo felt they were receiving adequate care, and she responded no to each one.
During cross, Mr. Love showed her pictures of some of those dogs and asked her whether she would be able to give an opinion on the teeth. She replied no, not just looking at the pictures because the pictures might look okay but the molars might be in bad shape.
Mr. Love asked whether any of these dogs were in pain or malnourished. Touroo said no. He asked if she considered grade 1-2 dental issues inadequate care and she responded yes, that home care was required.
Dr. Brian Arneson, veterinarian at Heartland Veterinary Clinic in Harrisonburg was called to the stand. He also testified that he has gone to Jean's kennel to give rabies vaccinations and has done “walk throughs” to check on general conditions. He has never found serious problems. He was shown several rabies certificates and asked if he recognized them as being from his clinic. Most of them, he did, but there were a couple that did not seem to have come from his clinic's software. Nothing was concluded from that.
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| Puppy pen with hanging toy and heat lamp |
When Mr. Love asked him how he would have treated the eye problems in the two dogs, he said he would have used the same drug Jean did, but perhaps in an ointment instead of drops. Mr. Love asked how he would have treated them for pain. He said there was no treatment for eye pain. Dr. Arneson testified that it is very common for small dogs to have bad teeth.
Shane Ayers, another ACO from Augusta Regional Animal Control, took the stand. He said he had had a conversation with Jean about the commercial breeder law in 2008 and she said she was going to try to get her number of females to below 30 to avoid being classified as a commercial breeder.
On August 26, 2009, he assisted in counting the dogs on the property and counted 57 adults, 36 intact females. On December 18 he received an email from Jean stating the she was below 30 females. On January 10, after the law had gone into effect, Jean sent him another email saying she had fewer than 29. He did not go out to her property to confirm this. On January 21, according to rabies certificates, Jean had a total of 61 dogs – 30 females but only 27 for breeding, and 31 males.
The prosecutor entered a number of photographs into evidence, beginning with a photo of a sign saying “puppies for sale” in front of Jean's house. Other pictures were of various pens and cages. These were circulated through the jury.
Jean's kennel set-up and conditions were not on trial. The dogs had been stipulated to be in good condition, with adequate food, water, shelter, and exercise, except for those with dental or eye conditions, and even those were stipulated to be in good body condition and well-nourished. These photos were obviously intended to show Jean's kennel in a bad light.
On cross, Mr. Love asked Ayers if, when he visited Jean in 2008, he had been able to answer all her questions about the commercial breeder law. He said he had not, but that he had “consulted the people who drafted the legislation” and was able to respond to her questions after that.
Hammer was recalled. She was asked whether Jean had told her that she whelped dogs belonging to Katie and that they stayed with Jean for six weeks, then the puppies were sold by either her or Katie. Hammer responded that yes, Jean had stated that.
Touroo took the stand again, and again Gaines went through a list of every dog in the kennel, asking their ages and whether they were pregnant or nursing. This time he also brought in photos of a calendar hanging in Jean's office with the names of dogs filled in on various dates, as well as photos of dog information sheets that were on the pens of the mothers. Making the assumptions that some were when females came in season, when they were bred, and when they gave birth, he asked Touroo why the whelping dates on the calendar did not always match up with those on the pens. She replied that probably the dates on the calendar were expected due dates, but that dogs do not always deliver when they're expected to. She said, “Dogs have a gestation of about 65 days.”
The generally accepted time of gestation for a dog is 63 days, though it can vary on either side by several days. I have never heard anyone give 65 days as the average gestation time.
For each dog, Gaines showed her a rabies certificate, asked if it appeared to be the same dog on the list of dogs she had examined, showed her the calendar for (assumed) dates of coming in season, breeding and whelping, and compared that information to the information sheets on the pens.
There were two rescues, Evie and Beebite, who were not counted, and Precious, who was over eight years old, was not counted. Jewel, Demi, and Little Witch were not counted because they were under 18 months and therefore not old enough to breed. Jean had three housedogs, one very old, one three months old, and one adult female. None of those were examined or counted.
Gaines asked Touroo whether she had received breeding certificates on the breeding-age females and she replied that none had been produced.
Breeding certificates are a requirement for commercial breeders. A breeding certificate is an annual statement from a vet that he has examined a female and determined that she is in suitable health for breeding. Jean did not have these because she believed she did not have over 29 females and was therefore not a commercial breeder. She did not know they would count Katie's dogs and Sherry's dog as if they belonged to her.
On cross examination, Mr. Love asked how many females were counted. Touroo said 31. Mr. Love asked whether the criteria for determining whether a female was a “breeder” was that she was housed with intact males. Touroo said yes, the burden of proof is on the breeder to prove the female was not being bred. Mr. Love asked if it were true that the state vet's office had not even provided a format for breeding certificates as of the June 3rd inspection. Touroo said that was true.
Mr. Love made a motion to strike the charges of selling underaged puppies because it was obviously a mistake which Jean had tried to correct. He asked that the charges for the dogs with eye infections be stricken because Jean did take the dogs to the vet after the inspection and was told no treatment was necessary. When asked how he would have treated them earlier, the vet had said with the same drug Jean had used.
As for the charge of maintaining more than 50 dogs, Mr. Love pointed out that that charge, and all the records violations charges were dependent on Jean having 30 or more breeding females and there was a legitimate question about whether she did. He pointed out that the only evidence that some of them were breeding females was that they were kept in pens with intact males. He said there was no evidence that more than 50 dogs were being kept for breeding and that the Commonwealth had not met the burden of proof.
Gaines argued that the fact that selling the puppies underage was unintentional did not matter because this was a misdemeanor and intent is not at issue. He said that even if the housedogs were not counted, “the evidence is overwhelming that the purpose of this kennel is producing puppies for sale.
According to Virginia law, producing puppies for sale does not make a kennel commercial. Maintaining 30 or more females for the primary purpose of selling the offspring does. Again, Gaines' implication was that simply by offering puppies for sale, Jean was doing something wrong.
DAY THREE
Mr. Love called his first witness for the defense, Jan Stephens, who bought two dogs from Jean, neither of which had health or dental problems. She said they had been checked by a veterinarian and were in great health. When the prosecutor asked her if she did anything special to keep their teeth clean, she said no, that they play with chew toys and other toys. Gaines asked specifically if their teeth had been checked by a vet and she said yes, they had and no problems were found.
Ashley Tinsley testified that she had gotten two adult dogs from Jean and both were in excellent health, with no dental problems and no pain.
Sherry Sweet, Jean's daughter, testified that she had taken her Italian Greyhound Isis to Jean's house to board while she was out of town. The dog was five weeks pregnant and she wanted Jean to keep an eye on her. Sherry had planned to pick her up in a week, but she returned to town on May 16 -- her brother committed suicide on the 17th. For the following few weeks, she left Isis in the kennel while her family and her mother dealt with their grief.
During that time, Touroo and animal control came to the kennel and counted Isis among Jean's dogs. Sherry picked up her dog the following Monday and on Tuesday she delivered the puppies at home. Sherry stressed that she is not a dog breeder, that Isis is a family pet and this was a project she and her daughter took on as part of home schooling. The only time Isis has stayed with Jean was that one time. Jean was not compensated for keeping her and received no money from the sale of the puppies.
Meanwhile, another Isis, a poodle belonging to Katie, was bred to Goldenrod (poodle) on May 14 and this was duly noted on the calendar.
Gaines responded to Mr. Love's motions by pointing out that the puppies sold underage were five weeks old and that he felt Jean had sold them intentionally. He disagreed that the treatment by Jean for the eye problems was enough. “Whether there are 30 breeding females is a jury decision, as is whether the daughter is a credible witness.” He added that the jury would have to decide whether Sherry would “lie for her mother.”
The judge denied all motions. He then read every charge and gave the jury instructions. Mr. Love had also objected to several of the instructions, but those objections were also overruled.
CLOSING ARGUMENTS
Gaines began his argument with a quote from Alexander Pope, beginning with “A little knowledge is a dangerous thing.” He then re-stressed the “legal definition” of emergency veterinary care and warned the jury to put aside their own understanding of it. He said neither of the two local vets who had testified was a “forensic vet,” and they were not trained in the law.
He argued that Jean had been “dabbling in veterinary medicine for years,” treating her own dogs. “I know what to do. I don't need to take them to the vet.” He insisted that she had allowed the two dogs with corneal ulcers to “suffer through the whole disease while she dabbled in vet medicine.”
Dr. Arneson had said he would have used the same drug Jean did and that there was nothing he would have been able to do for any pain in the eye.
He accused Jean of refusing to get dental treatment for the dogs because she “was not going to spend $300 on that dog. It shouldn't take two inspections by animal control to get these animals treatment. She thought she knew better.”
He said he did not believe she had sold the two puppies accidentally.
Gaines insisted that even not counting the dog in the house there were 30 females maintained “for the purpose of selling their offspring.” Although one of the dogs, Toto, had been spayed during a c-section, he said that as long as her puppies were nursing, she was being maintained for that purpose.
Then he said that Sherry Sweet had an interest in the outcome of the case and if they would consider the calendar which said Isis was not bred until May 14 and was bred to Goldenrod (a poodle) they would see that Isis had been brought to the kennel to be bred.
The Isis who was bred to Goldenrod on May 14 was a poodle belonging to Katie, not Sherry's Italian greyhound, who was already pregnant.
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| One of Jean's whelping rooms |
Gaines went on to say “There is no dispute that she is a dog breeder. She makes a living breeding dogs and she moves dogs back and forth between her and her sister for the purpose of breeding.”
And breeding dogs is not a crime, contrary to Mr. Gaines' implication.
He ended by saying, “This woman has dabbled in veterinary medicine and her animals have suffered as a result.”
Mr. Love began his closing argument, as had Gaines, by thanking the jury for their service. He said that as far as selling the underaged puppies, the statement signed by Stanley was proof that the first puppy was sold by accident. He pointed out that if she had intended to mislead him, she would not have put the puppy's correct birthdate on the papers to begin with.
He further commented that “All experts are not created equal.” He said the jury should take into account the combined 42 years of the local vets' experience and the fact that Touroo had one year in practice. “Is there anyone who is not better at a job 19 years later than after one year?”
As far as “interest in the outcome of the trial,” he pointed out that Touroo's job is, day to day, to look for violations. “You judge the vets' credibility,” he suggested.
As for the teeth, Mr. Love said, though you have to follow the judge's instructions, both of the local vets said they did not consider those teeth an emergency. The dogs were well-nourished and there was nothing to indicate they had trouble eating. Vets disagree on when dental work is necessary and the danger of putting dogs under anesthesia has to be considered. And he reminded jurors that Dr. Bowman said you can do everything right and still have dogs with dental problems.
He pointed out that some of the dogs with problems belonged to Katie and were only with Jean for six weeks.
Eleven dogs had only grade one or two dental problems. “Dr. Touroo may have a bias of her own,” he suggested. “The grades are subjective and her job is finding violations.”
Mr. Love asked the jury to consider the openness of Jean's operation. Would a bad breeder invite a vet to tour the facility and tell her about any problems he saw? If a vet had seen sick or mistreated dogs, would he have kept quiet? Would a bad breeder ask the animal control officer to do a walk-through when he came by for something else?
To be guilty of the recordkeeping charges (which involved only breeding certificates), Mr. Love pointed out, Jean would have to be a commercial breeder. That means she has to maintain 30 or more breeding females. At this point Gaines interrupted to point out that the law says “for the primary purpose of selling their offspring.” Mr. Love continued that the dogs in the house could not be counted because they were not examined. Isis should not count, he said, because there had been no testimony as to what the entries on the calendar meant. If the Commonwealth thought Sherry Sweet was lying, why didn't he question her about it on cross examination?
“You heard the story. When the law was passed, Ms. Cyhanick had more dogs. She was trying to reduce her numbers. It was hard, but she was doing it. She didn't get the breeding exams because she did not believe she was a commercial breeder.”
Without Isis, her daughter's dog, she wasn't a commercial breeder. And Isis should not have been counted.
During the Commonwealth's rebuttal, Gaines said that even if selling the first underage puppy was a mistake, it didn't matter, it was her responsibility. And he added, “We dispute that it was a mistake.” He said Stanley had taken the second underage puppy to “get it out of that place,” again implying bad conditions at the kennel even though he himself had stipulated that the conditions were not in question. Gaines dismissed the experience of the two local veterinarians because, he said, “Neither of them knew the definition of emergency veterinary care under the the law. Do not let private vets who are not versed in the law influence you.”
As for the healed eye injuries, Gaines said, “If you take a dead dog to the vet, he can't do anything about that either,” so that fact that Jean's vet said there was nothing to treat when she brought the dog in didn't matter. Emergency vet care, he said, was to “alleviate suffering.”
“She wouldn't even brush their teeth or give them any dental treatment at all. What you have are dogs with missing teeth.”
Not true. Jean showed me a cup full of broken and chewed up toothbrushes. She had attempted to brush their teeth and been bitten in the process. It's not easy to brush a dog's teeth who hasn't been trained from puppyhood to allow its mouth to be examined. Her dogs also had numerous bones and chew toys in their pens. Toy dogs are notorious for having bad teeth, regardless of what care the owner does.
Gaines said if people did not like the definition of emergency veterinary care, that they should contact their legislators. He said that he had not cross examined Sherry Sweet about the truth of her testimony because “if she is prepared to come in here and lie to you about this, I submit that she would lie when I asked her. Goldenrod is a poodle. Draw your own conclusions.”
Gaines conclusion was obviously that Jean was a commercial breeder of the worst sort and breeding a poodle to an Italian Greyhound would be something she would do.
The jury deliberated for about two hours. They had been instructed to assign penalties for the cruelty charges but to postpone penalties for the others until later. Jean was found guilty on all charges of cruelty and six of the inadequate care charges, as well as all of the records violations.
The judge asked if Jean would like to address the jury before further penalties were assigned. She took the stand and Mr. Love asked her how she had become interested in dogs.
She said she had always had an affinity for animals. She had been an abused child and her pets were her comfort. She'd always had a knack for dealing with animals and frequently nursed rabbits and birds back to health, even as a child. She had begun breeding when she had a handicapped child and needed to stay home with him.
“My kennel was my refuge when things were not going well at home, which was pretty often,” she said. “It seems like my only talent was dogs. I couldn't draw or paint or anything but I could take care of dogs. I needed the money, but that wasn't all of it. Back then, breeding dogs wasn't such a big deal and I took good care of them. They were happy.
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“I have quite an interest in what it takes to have a healthy dog. When I first started, I used to go to the vet twice a month, but reading, studying, and asking questions, you begin to pick up on how to take care of some things yourself.
“The dogs were never my sole source of income. They gave me extra money for Christmas and school things. There were times they put food on the table.
“I felt like I was making my dogs happy. I had about 180 dogs when the commercial breeder law passed, so I had to cut back a lot. It's not easy to find a good home, a good place for that many dogs in just a few months. I tried very hard to get them to clarify exactly what this law meant but it was never plain how it would be enforced and what would count.
“My dogs were always more than breeding dogs to me. I never bred a dog after seven or eight years old. I loved all of them.”
Mr. Love asked her if her kennel had ever had citations before. “No, sir, I have never been in any kind of trouble. I've never been charged with anything and they had been to my house numerous times. I always got the ACO to walk through my kennel and asked them to tell me what was wrong and I would fix it.”
“I have one more thing to say,” she concluded. “My daughter Sherry is not a liar. She would not lie for me or anyone else. The dog Isis on the calendar was a poodle belonging to Katie. Sherry's dog was bred at her house and went home to her house to have her puppies. I just want to make that very clear. My daughter does not lie.”
When asked if he had questions, Gaines simply stated, “So I guess you're saying the rules have changed over the years.”
Jean replied, “The laws have changed.”
ACO Shane Ayers took the stand again. He testified that he had known Jean since 1995 and he had been to her property every year since then, sometimes several times a year. There had never been any previous charges. He said he had occasionally made suggestions for improvement, maybe once a year, and she had always complied. He felt the current problems were because the rules or laws had changed.
The jury was given addition instructions, that for each guilty conviction, they could sentence Jean to not more than a year in jail, a fine up to $2500, or both up to a year in jail and a fine up to $2500.
What the jury was not told was that in Virginia, any animal cruelty conviction means you can never again sell an animal in Virginia, and the court may order that you cannot even own an animal again. They may not have known that by convicting her of cruelty, they were depriving her not only of her livelihood, but her beloved pets as well.
Gaines commented that the “times have passed her by” and asked them not to sentence her to jail time, but he asked for at least $500 per violation.
Mr. Love asked them to consider how egregious they felt each count was and to look at each individual fine and gauge the impact they felt it would have on her. “We are not dealing here with someone who has a long history of mistreatment of animals.”
The jury came back with a $50 fine for the records charges and inadequate care charges and $150 for each charge of cruelty, selling puppies underage, and having more than 50 breedable dogs.
After the jury was dismissed, the judge asked Jean if she had anything to say. She did. (Following is a reconstruction of her comments from my notes. The quotes are not exact, but pretty close.)
“This has been a travesty,” she began. “ I cannot believe what happened to me here. You're supposed to come to court to get justice. This is not justice. Breeding is not disrespectful or harmful to dogs. Those dogs were the only thing I had that kept me human, that kept me alive. You didn't hear the truth here today or yesterday, and it will be a long time before you hear the truth in an animal case. If you keep running over people like me, to get a dog you will have to sign an adoption contract and pay $5000. That's the way this is going.
For those of you who brought these charges, I curse each and every one of you. What goes around comes around.
I'm done.”
Gaines asked that Jean be prohibited from ownership of any animals, but after a brief consultation with Mr. Love, he said he would ask that she be limited to four dogs and three cats. Although she will not be able to sell them, Mr. Love asked that she be allowed to place her dogs herself and that she have 90 days in which to do so. The Commonwealth agreed, but added that it would be under ACO Hammer's supervision.
It is hard to believe that in Virginia, having a dog with bad teeth is considered animal cruelty. It's hard to believe that a man can extort a free puppy from someone and walk out of court a winner. It's hard to believe that people can manipulate a jury this way, that a prosecutor can accuse a witness of lying without giving her a chance to respond. Mostly it is hard to believe that the testimony of a bureaucrat who has one year of practical experience is believed over the testimony of two veterinarians with a combined total of nearly 40 years' experience.
Jean's dogs are gone, but she will continue to fight. She is the only breeder in Virginia who has been able to fight a case against animal rightists, and she will continue as long as she is able.
Perhaps it would be nice if all puppies could be raised in a kitchen with kids to play with and go to perfect homes where they would live to 15. But there are not enough hobby and occasional breeders to provide dogs for the people who want them. Keeping an intact animal has become politically incorrect and downright illegal in some places, so few people breed the family dog any more. Dog limits and zoning laws have put many small breeders out of business. Without good, caring for-profit breeders like Jean, we will face a dog shortage in just a few years. This country is already importing puppies from Mexico, Puerto Rico, and many other countries – there are serious health concerns with these dogs, and they are raised in conditions we cannot monitor or improve.
The animal rights movement, working through local puppets, is methodically eroding our ability to breed and even own pets.
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