The transition from one year to another is a time to remember. Perhaps because I have recently made contact with some people from Pullman, Washington, the town where I lived the first sixteen years of my life, something came back to me.
The memory concerns a man whose last name was, I think, Meade or Means, but whose first name was John.
My father was the Chairman of the Department of Animal Science at Washington State University (actually it was called Washington State College during our period there). Several times each year my parents gave a buffet breakfast for the faculty and graduate students of the Department, to which they would invite stockmen from the area, which included parts of Washington, Oregon, and Idaho. My father believed that the graduate students should meet men who had spent their lives with farm animals, which in that part of the world meant mostly cattle, though there were some sheep and swine operations as well.
At one of these breakfasts a rancher stood by himself before one of my father's bookcases, occasionally greeting one of the older stockmen who came to the breakfast, but he made no attempt to circulate. He did not take off his hat, sometimes a habit of the older cattlemen. I was a little afraid of him, and my only interaction with him consisted of a nod he gave me when I came within a few feet of him to fill coffee cups.
After everyone had gone, I asked my father about the man with the hat. "John Meade," my father said. "I've never met him before, though we've invited him several times. I didn't think he would come."
"Why?" I asked.
"He doesn't talk much, you noticed? He's probably the most famous rancher in northern Idaho."
"Why?"
"What I heard was that there was a land dispute between him and another rancher. Their fathers had staked claims along the Snake River around the turn of the century. The claims overlapped somehow, which led to a range war and a couple of cowhands were wounded and one was killed, a Nez Perce who was a friend of John’s father. That brought in other people and it went on for a long time, years, decades, sometimes quiet, sometimes not. After the war started, the county lawman went off to join the Army and there was no one to keep the peace. John and the other rancher decided to settle the matter once and for all the old fashioned way. They met on the banks of the Snake with pistols in holsters, each with a witness. John was the one who walked away."
"When?" I asked.
"1942, 1943, I suppose."
I heard nothing more about John for two years, when one afternoon my father got a call from the shepherd of the college's sheep farm, five miles from Pullman. Claude Coke, the shepherd, had several collies and one of them had started behaving strangely. Claude, whom my father always called the Scot, locked the dog in a shed and fed it through a space under the door. Then it got out somehow and killed two sheep. Claude tried to shoot it but missed and the now clearly rabid dog was running around the farm but staying away from people.
My father called John, who said he would come the next morning. Just after dawn we drove to the sheep farm but John had already shot the dog. It was sixty or seventy feet from the road in a field of hay stubble. It had snowed overnight and the white belly of the dog blended into the snow. I remember several tufts of golden and brown hair on the dog's tail, pointed oddly skyward, blowing in a light breeze.
I did not see John's rifle, which he had probably put back in his truck. I wanted to go with my father to talk to the two men but he told me to wait in the Buick. When my father got close to them I saw Claude's back heave. My father put his hand on Claude's shoulder, shook John's hand, and walked back to the car.
"It's better that we leave. Claude liked the dog. He wouldn't want you to see him this way."
We drove away. Through the back window I could see John with the hat he never took off, and Claude, their backs still to us. I never saw John again.
"Claude said that John got him with one shot," my father said at the dinner table that night. "One shot with a .22 from the side of the road. Can you imagine?"
"We shouldn't talk about it," my mother said.
It was New Year's Day, 1959.
Corrections From a Reader. The following email came from a reader who asked to be called Rachel N. Admittedly I made no effort to find any source beyond my memory for the events described, so I suspect that her corrections given are to be accepted.
Dear Mr. Ensminger,
I have not read your blog before but was surprised when a friend from Pullman sent me an e-mail about your account of the duel that you say took place on the Snake River. That is the first of several mistakes in your or your father's account. The duel took place on the Clearwater River, a tributary of the Snake. Although I did not hear about the duel until ten or more years after you did I believe what I heard is more accurate than what you have written. My grandfather Jacob Schloss was there and was the witness for John Moody, whom you write incorrectly was called Meade or Means.
An even bigger error is the date you give for this event. It took place in 1932 when according to my grandfather there was very little law in northern Idaho. Nobody needed to go off to war for a duel to take place in those parts back then.
The name of the other man was Ulf Lindstrand, a Swede who was both a miner and rancher at different times and well known for his habit of picking fights, particularly if drunk, which he often was according to my grandfather, who knew both men.
My grandfather, Jacob Schloss, had a general store that everyone north of the Clearwater used at one time or another but he did not know either man well enough to serve as a second. This came about because the man who was supposed to be Moody's witness did not show up at my grandfather's store the morning of the duel. After a time Moody told Jacob to close the store and come with him to watch something along the Clearwater. He did not say what it was at first but John Moody was not the sort of man you said no to.
My grandfather was one of the few Jews in northern Idaho at the time (except for a few professors in Moscow that he always called "conversos") and when he learned the purpose of his being asked to come with Moody he felt obliged to tell Moody he was Jewish and did not know if a court would give full weight to his testimony as a witness. Moody told Jacob not to worry because it was Lindstrand who was going to die.
My grandfather did not describe the duel other than to say that Lindstrand fired quickly and twice at about thirty feet and missed both times but Moody took careful aim and hit Lindstrand in the chest with his only shot. Lindstrand died before Lindstrand's witness came back with a doctor.
Jacob Schloss did not speak of this for many years, not even to my father. Grandfather told the family about it in 1972 when I was 12. Jacob was always worried that he could be charged as some kind of accessory though he said that no one in northern Idaho was ever inclined to cause trouble for John Moody. Moody had died in 1971 and grandfather must have felt that it would be too late for any legal problems if his role became known.
When he made enough money Jacob moved to Portland in 1949 and opened a dry goods store which he ran until he died at 92 in 1982.
Rachel N., Atlanta
Tuesday, December 28, 2010
Saturday, December 18, 2010
Sniffing and Sampling Only One Spot at Fire Scene Gets Arson Conviction Thrown Out, or How Not to Respond to Canine Evidence
I don’t know if anyone keeps statistics comparing the type of evidence and the percentage of cases where ineffective assistance of counsel is eventually argued, but if they do I’d be willing to bet that where canine evidence is a significant part of the prosecution’s case, claims of ineffective counsel after convictions are very high. Far too often lawyers, jurors, and judges take the handler’s testimony as gospel. One judge who doesn’t is Judge Nancy Gertner of the federal district court of Massachusetts.
In 2006, James Hebshie was convicted of arson for a 2001 fire in a building where he had a convenience store in Taunton, Massachusetts, and sentenced to 15 years in prison. After exhausting his appeals, Hebshie filed a petition for a writ of habeas corpus based on ineffective assistance of counsel. Judge Gertner analyzed the evidence and delivered a withering condemnation of the lawyers who had represented Hebshie in the criminal trial. The judge's analysis provides something of a manual on how NOT to represent someone accused of arson where a significant part of the government's case depends on the alert of an accelerant-detection dog.
Fire and Investigation
Hebshie’s store, Main Street Lottery & News Store, was one of three businesses a building on Main Street in Taunton, Massachusetts. Hebshie left the store at 1:37 on Saturday, April 21, 2001, and a motion detector alerted within the store at 1:44 p.m., seven minutes later. A police officer noticed smoke coming from the store about the same time. An officer of the Taunton Fire Department entered the building and moved towards an “orange glow” at the back of the store. The fire had spread and it took several hours to put it out.
Burn patterns suggested to a fire investigator that the fire had started in the left-hand wall of the store. An accelerant-detection dog, Billy, was brought to the location by his handler, Sergeant Lynch of the Massachusetts State Police. Billy alerted to one spot along the wall where the fire investigator thought the fire had begun, but this was the only place where Billy was taken because it was the only place that was safe. A carpet sample was taken for laboratory analysis from the spot. The dog was not taken to the basement or to any other areas in the building, nor were samples taken from other areas for laboratory analysis. Laboratory analysis identified the sample as containing a light petroleum distillate. Further tests that might have identified more specific chemicals were not performed.
The day after the fire, the fire investigator released the building to the insurance company, which soon demolished it. An insurance company investigator had intended to take pictures in the basement but the demolition happened too quickly.
Pre-Trial Developments
About a year after the fire, Hebshie was indicted for arson, mail fraud, and use of fire to commit a felony. Assigned counsel hired two forensic experts, a fire protection engineer, John Titus, and a chemist, Michael Higgins. In 2005, Hebshie replaced assigned counsel with counsel he had retained, John T. Spinale, who hired his son as co-counsel. Higgins was not used by the Spinales but Titus was. Titus testified that he warned the Spinales about weaknesses in the government’s case, including the fact that an accelerant-detection dog might alert to chemicals that are part of the ambient environment. Titus also argued that the laboratory should have been asked to attempt to identify the specific light petroleum distillate and that samples should have been taken from other places in the building. He told the Spinales that the laboratory test was probative only if it identified an accelerant that was not present elsewhere in the store.
Let the Judge Gertner’s disgust speak for itself:
"Despite these warnings, the Spinales never filed any pretrial motions (except motions to obtain incidental relief from Hebshie's pretrial release). There were no motions in limine, no motions directed to the expert testimony whatsoever. They never requested a Daubert hearing to challenge the bona fides of the Domingos investigation or the canine evidence, never moved in limine to exclude the laboratory analysis because of the generality of its conclusions and the lack of a control sample."
Criminal Trial
The government’s theory at the criminal trial was that Hebshie burned down his store to collect on a $30,000 insurance policy. Hebshie had lost his license to sell lottery tickets because he owed $5,000. He was trying to sell the store at the time of the fire. The defense theory was that the fire had started accidentally.
Fire Investigator. Sergeant David Domingos, who was soon on the fire scene, ruled out the two other stores in the building as possible points of origin, finding that the heavy damage and charring, the damage near the floor level, and a V pattern on the left-hand wall of the convenience store all pointed to this as the point of origin. Domingos admitted on cross-examination that this area was also surprisingly intact. He also admitted that V patterns can have different origins and that the V pattern was hard to tell in any case. Domingos discounted the theory that the fire could have started in the basement though his report did not mention the basement. He also described a “burnt toast” smell being mentioned by several witnesses, including the owner of the jewelry store in the building, about an hour before the fire and acknowledged that this could have been due to an electrical problem. He could not explain why no control samples taken from other parts of the store or the building.
A fire department official testified that one of the firefighters had a heart attack trying to put out the fire, which was not objected to by the Spinales, but should have been because it was probably both prejudicial and irrelevant.
Dog Handler. Sergeant Douglas Lynch testified about his experience as a dog handler and about Billy, the dog in this case, who had died before the trial. He said that Billy was “visibly more confident in her alerting on something than on other occasions.” In cross-examination, Lynch testified Billy had been 97% accurate, and said that even when she was wrong it was the handler’s error rather than hers. No reports or tests concerning the dog were introduced and the Spinales did not challenge the accuracy of the statistic or cross-examine concerning false negatives or other issues that might have been raised from scientific literature. The trial judge almost asked for a challenge on the canine testimony. The following is from the trial transcript:
THE COURT: I wanted to make sure I didn’t miss anything here, there was no challenge to the canine evidence, to the dog?
MR. SPINALE, JR.: No.
In the convenience store fire, Lynch only took Billy to the area where Domingos concluded the fire had started, which he described as the more “intact portion” of the store. Billy gave a strong alert at that location and Lynch took a sample from that area, but not from other areas, apparently because Domingos had not requested that he take comparison samples.
Laboratory Technician. John Drugan, a laboratory technician, testified that he used a gas chromatograph flame ionization detector to class the sample as having a light petroleum distillate. Drugan admitted that using a comparison sample is “preferred practice” but the Spinales did not challenge the reliability or admissibility of the test and even stipulated to the lab results. In the habeas hearing that followed years later, Judge Gertner wrote that "a reasonably competent counsel would have challenged the test results of 'light petroleum distillate' and their characterization as accelerants."
Fire Protection Engineer. John Titus, testifying for the defense, said that the left-hand wall was the only wall of the store that had not collapsed. He pointed to burn patterns suggesting the fire began in the basement and that the fire broke into the convenience store after moving through the walls. He could not present evidence of the basement’s condition and there were no photographs, samples, or notes about the basement in Domingos’ report.
Closing Arguments. The government closed by arguing that Billy had alerted to the left-hand wall to the exclusion of other areas, which was not correct. The Spinales did not object to this mis-characterization of the handler’s testimony. Indeed, the elder Spinale described Domingos as “very qualified” and said that Lynch and Billy were “impressive.” He also said that there was not much difference between the experts for each side, probably undermining the distinctions his expert had made.
Verdict and Appeal
The jury found Hebshie guilty on all counts and he was sentenced to 15 years in prison. His conviction was affirmed by the First Circuit. U.S. v. Hebshie, 549 F.3d 30 (1st Cir. 2008). This appeal, however, had little to do with the arson case and was mostly about another aspect of the conviction for mail fraud regarding Hebshie’s attempt to collect insurance on the store.
Habeas Corpus
Hebshie then sought to establish that his counsel’s performance was deficient, resulting in prejudice. The competence of the Spinales was now the focus of the testimony and a major issue was why they had not brought a Daubert challenge to the cause-and-origin testimony and the arson evidence.
Judge Gertner found the Spinales’ explanations of their trial strategy so deficient that she was quite blunt in criticizing them: “I do not credit Jay Spinale's testimony at all. He admitted that he had taken pains not to prepare for the evidentiary hearing in any way; he had reviewed nothing.”
Insurance Company Investigator. Daniel Cronin, the insurance investigator, took one photograph that John Titus, did not see until the habeas corpus hearing. Its significance was summarized by the Judge Gertner:
"Cronin did, however, take one photograph of the stairs leading down to the basement….In fact, it was a photograph with a fuller view of the stairwell. Spinale never asked for any of the photographs from the insurance investigation. Titus testified that he had never seen the insurance photographs until the evidentiary hearing. And the photographs were significant. They showed that the lintel, the bar by the basement staircase that supports the floor, was charred and had significant soot deposits on it, indicating that fire came out of the basement." (emphasis added)
A new witness, John Lentini, a forensics arson expert, testified that the government’s theory of the fire’s movement was scientifically impossible. He believed it was far more likely that the fire began in the basement.
Canine Evidence. In the habeas hearing, the canine evidence was considered again. Judge Gertner noted that the National Fire Protection Association’s Guide for Fire and Explosives Investigations, referred to as NFPA 921 by firemen and investigators, says that arson dogs are tools to narrow the search area for ignitable liquids. Titus testified that he had told the Spinales about weaknesses in canine evidence and provided them with research indicating dogs had varying levels of reliability depending on the substances in a sample. He pointed out to the Spinales that some substances arson dogs alert to are actually common in the environment. Lentini said that the convenience that the store sold glue and lighter fluid that could be detected by a dog. He quoted NFPA 921:
"The collection of comparison samples is especially important in the collection of materials that are believed to contain liquid or solid accelerants. For example, the comparison sample for physical evidence consisting of a piece of carpeting believed to contain a liquid accelerant would be a piece of the same carpeting that does not contain any of the liquid accelerant. Comparison samples allow the laboratory to evaluate the possible contributions of volatile pyrolysis products to the analysis and also to estimate the flammability properties of the normal fuel present."
Lentini noted that the area where the carpet sample was taken from was "in very good shape for a carpet that supposedly had ignitable liquid put on it."
Judge Gertner's Analysis
On an ineffective assistance of counsel claim, the applicant must show that his counsel's performance was deficient and that he suffered prejudice as a result. Judge Gertner did not find a complete failure by the defense counsel, though noting that "candidly, counsel's performance came close," but found most fault in counsel's failure to move for a Daubert hearing or attempt to exclude the arson evidence.
Daubert. Scientific evidence must not only be relevant, but reliable, and, under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court must conduct “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Such a hearing should have been requested here. Judge Gertner stated:
"Despite ample reasons for defense counsel to be on notice of serious problems with the government's expert evidence--from Titus, from Muse, arguably from their own investigation--they did not request a Daubert hearing as to anything. They knew that there were problems in the Domingos cause-and-origin investigation and the Drugan laboratory analysis that undermined their validity; they knew that the failure to take a control sample in this case was inconsistent with the scientific method and NFPA 921 ...(governing collection of comparison samples); they knew that the investigation of the basement was inadequate, or at least, not fully documented; and they knew or should have known that the canine evidence was supposed to be admitted for only a limited purpose, namely, assisting in the selection of samples that have a 'higher probability of laboratory confirmation than samples selected without the canine's assistance,' and that testimony beyond those purposes was potentially prejudicial...." (emphasis in original)
The judge described the Spinales has having demonstrated a "lack of preparation, even thought," and cited substantial legal and scientific literature that the Spinales should have become at least somewhat familiar with regarding arson evidence. Further:
"Spinale could not have reasonably believed that a Daubert hearing was waived when the Court asked him over and over again if he wanted such a hearing-even mid-trial. Indeed, the government's claim that Spinale did not move for a hearing because he feared the Court would be aggravated is absurd. This Court explicitly invited the challenge so that critical scientific issues could be hashed out outside of the presence of the jury."
The judge cited a federal district court case from West Virginia, which held that "the use of the dog alert as substantive evidence is beyond the accepted scope and application of the technique as described in the NFPA guide." U.S. v. Myers, 2010 WL 2723196 (S.D.W.Va. 2010). The Spinales should have objected "to all statements that suggested that the alert had any validity beyond helping the fire investigators to choose samples."
The Spinales should have also objected to the handler's "truly extravagant testimony about Billy, the dog, her powers, her accuracy, her role in accelerant-detection in general and in this case, and to the government's closing." The judge referred to scientific articles indicating substantial error rates in canine alerts, which were never raised by the Spinales.
Prejudice. In describing how Hebshie was prejudiced by the Spinales' representation, Judge Gertner said that there was a reasonable probability the criminal trial court would have granted a Daubert hearing if it had been requested, and from such a hearing or on objection would have excluded the laboratory accelerant sample test, would have excluded the canine evidence "or severely limited it," and would have reduced the significance of the cause-and-origin testimony. Without this evidence, there would essentially "have been no case at all," making it reasonably probable that the outcome of the trial would have been different.
The U.S. Attorney's office has filed a notice of appeal. Hebshie will appear at a status conference in federal court in Boston on December 29.
Conclusion
There is something of a conceit in many TV crime shows that lawyers in private law firms must come in and save the day from overworked and less competent legal services lawyers. This has been an ongoing theme in The Good Wife, a show with excellent writers, who are either lawyers themselves or whose work must be checked by lawyers. Nevertheless, sometimes the client should stick with the court-appointed lawyer, as may have been true here.
I should point out that though this case was a poor example of accelerant detection canine procedure, there are many cases where the alerts of such dogs have been carefully considered and admitted. This is not the place to review a broad range of accelerant detection cases, but that is something I will do in the book I am working on with the help of Tadeusz Jezierski, L.E. Papet, John Grubbs, Greg Keller, and others regarding canine forensics and law.
U.S. v. Hebshie, 2010 WL 4722040 (D.Mass. 2010).
In 2006, James Hebshie was convicted of arson for a 2001 fire in a building where he had a convenience store in Taunton, Massachusetts, and sentenced to 15 years in prison. After exhausting his appeals, Hebshie filed a petition for a writ of habeas corpus based on ineffective assistance of counsel. Judge Gertner analyzed the evidence and delivered a withering condemnation of the lawyers who had represented Hebshie in the criminal trial. The judge's analysis provides something of a manual on how NOT to represent someone accused of arson where a significant part of the government's case depends on the alert of an accelerant-detection dog.
Fire and Investigation
Hebshie’s store, Main Street Lottery & News Store, was one of three businesses a building on Main Street in Taunton, Massachusetts. Hebshie left the store at 1:37 on Saturday, April 21, 2001, and a motion detector alerted within the store at 1:44 p.m., seven minutes later. A police officer noticed smoke coming from the store about the same time. An officer of the Taunton Fire Department entered the building and moved towards an “orange glow” at the back of the store. The fire had spread and it took several hours to put it out.
Burn patterns suggested to a fire investigator that the fire had started in the left-hand wall of the store. An accelerant-detection dog, Billy, was brought to the location by his handler, Sergeant Lynch of the Massachusetts State Police. Billy alerted to one spot along the wall where the fire investigator thought the fire had begun, but this was the only place where Billy was taken because it was the only place that was safe. A carpet sample was taken for laboratory analysis from the spot. The dog was not taken to the basement or to any other areas in the building, nor were samples taken from other areas for laboratory analysis. Laboratory analysis identified the sample as containing a light petroleum distillate. Further tests that might have identified more specific chemicals were not performed.
The day after the fire, the fire investigator released the building to the insurance company, which soon demolished it. An insurance company investigator had intended to take pictures in the basement but the demolition happened too quickly.
Pre-Trial Developments
About a year after the fire, Hebshie was indicted for arson, mail fraud, and use of fire to commit a felony. Assigned counsel hired two forensic experts, a fire protection engineer, John Titus, and a chemist, Michael Higgins. In 2005, Hebshie replaced assigned counsel with counsel he had retained, John T. Spinale, who hired his son as co-counsel. Higgins was not used by the Spinales but Titus was. Titus testified that he warned the Spinales about weaknesses in the government’s case, including the fact that an accelerant-detection dog might alert to chemicals that are part of the ambient environment. Titus also argued that the laboratory should have been asked to attempt to identify the specific light petroleum distillate and that samples should have been taken from other places in the building. He told the Spinales that the laboratory test was probative only if it identified an accelerant that was not present elsewhere in the store.
Let the Judge Gertner’s disgust speak for itself:
"Despite these warnings, the Spinales never filed any pretrial motions (except motions to obtain incidental relief from Hebshie's pretrial release). There were no motions in limine, no motions directed to the expert testimony whatsoever. They never requested a Daubert hearing to challenge the bona fides of the Domingos investigation or the canine evidence, never moved in limine to exclude the laboratory analysis because of the generality of its conclusions and the lack of a control sample."
Criminal Trial
The government’s theory at the criminal trial was that Hebshie burned down his store to collect on a $30,000 insurance policy. Hebshie had lost his license to sell lottery tickets because he owed $5,000. He was trying to sell the store at the time of the fire. The defense theory was that the fire had started accidentally.
Fire Investigator. Sergeant David Domingos, who was soon on the fire scene, ruled out the two other stores in the building as possible points of origin, finding that the heavy damage and charring, the damage near the floor level, and a V pattern on the left-hand wall of the convenience store all pointed to this as the point of origin. Domingos admitted on cross-examination that this area was also surprisingly intact. He also admitted that V patterns can have different origins and that the V pattern was hard to tell in any case. Domingos discounted the theory that the fire could have started in the basement though his report did not mention the basement. He also described a “burnt toast” smell being mentioned by several witnesses, including the owner of the jewelry store in the building, about an hour before the fire and acknowledged that this could have been due to an electrical problem. He could not explain why no control samples taken from other parts of the store or the building.
A fire department official testified that one of the firefighters had a heart attack trying to put out the fire, which was not objected to by the Spinales, but should have been because it was probably both prejudicial and irrelevant.
Dog Handler. Sergeant Douglas Lynch testified about his experience as a dog handler and about Billy, the dog in this case, who had died before the trial. He said that Billy was “visibly more confident in her alerting on something than on other occasions.” In cross-examination, Lynch testified Billy had been 97% accurate, and said that even when she was wrong it was the handler’s error rather than hers. No reports or tests concerning the dog were introduced and the Spinales did not challenge the accuracy of the statistic or cross-examine concerning false negatives or other issues that might have been raised from scientific literature. The trial judge almost asked for a challenge on the canine testimony. The following is from the trial transcript:
THE COURT: I wanted to make sure I didn’t miss anything here, there was no challenge to the canine evidence, to the dog?
MR. SPINALE, JR.: No.
In the convenience store fire, Lynch only took Billy to the area where Domingos concluded the fire had started, which he described as the more “intact portion” of the store. Billy gave a strong alert at that location and Lynch took a sample from that area, but not from other areas, apparently because Domingos had not requested that he take comparison samples.
Laboratory Technician. John Drugan, a laboratory technician, testified that he used a gas chromatograph flame ionization detector to class the sample as having a light petroleum distillate. Drugan admitted that using a comparison sample is “preferred practice” but the Spinales did not challenge the reliability or admissibility of the test and even stipulated to the lab results. In the habeas hearing that followed years later, Judge Gertner wrote that "a reasonably competent counsel would have challenged the test results of 'light petroleum distillate' and their characterization as accelerants."
Fire Protection Engineer. John Titus, testifying for the defense, said that the left-hand wall was the only wall of the store that had not collapsed. He pointed to burn patterns suggesting the fire began in the basement and that the fire broke into the convenience store after moving through the walls. He could not present evidence of the basement’s condition and there were no photographs, samples, or notes about the basement in Domingos’ report.
Closing Arguments. The government closed by arguing that Billy had alerted to the left-hand wall to the exclusion of other areas, which was not correct. The Spinales did not object to this mis-characterization of the handler’s testimony. Indeed, the elder Spinale described Domingos as “very qualified” and said that Lynch and Billy were “impressive.” He also said that there was not much difference between the experts for each side, probably undermining the distinctions his expert had made.
Verdict and Appeal
The jury found Hebshie guilty on all counts and he was sentenced to 15 years in prison. His conviction was affirmed by the First Circuit. U.S. v. Hebshie, 549 F.3d 30 (1st Cir. 2008). This appeal, however, had little to do with the arson case and was mostly about another aspect of the conviction for mail fraud regarding Hebshie’s attempt to collect insurance on the store.
Habeas Corpus
Hebshie then sought to establish that his counsel’s performance was deficient, resulting in prejudice. The competence of the Spinales was now the focus of the testimony and a major issue was why they had not brought a Daubert challenge to the cause-and-origin testimony and the arson evidence.
Judge Gertner found the Spinales’ explanations of their trial strategy so deficient that she was quite blunt in criticizing them: “I do not credit Jay Spinale's testimony at all. He admitted that he had taken pains not to prepare for the evidentiary hearing in any way; he had reviewed nothing.”
Insurance Company Investigator. Daniel Cronin, the insurance investigator, took one photograph that John Titus, did not see until the habeas corpus hearing. Its significance was summarized by the Judge Gertner:
"Cronin did, however, take one photograph of the stairs leading down to the basement….In fact, it was a photograph with a fuller view of the stairwell. Spinale never asked for any of the photographs from the insurance investigation. Titus testified that he had never seen the insurance photographs until the evidentiary hearing. And the photographs were significant. They showed that the lintel, the bar by the basement staircase that supports the floor, was charred and had significant soot deposits on it, indicating that fire came out of the basement." (emphasis added)
A new witness, John Lentini, a forensics arson expert, testified that the government’s theory of the fire’s movement was scientifically impossible. He believed it was far more likely that the fire began in the basement.
Canine Evidence. In the habeas hearing, the canine evidence was considered again. Judge Gertner noted that the National Fire Protection Association’s Guide for Fire and Explosives Investigations, referred to as NFPA 921 by firemen and investigators, says that arson dogs are tools to narrow the search area for ignitable liquids. Titus testified that he had told the Spinales about weaknesses in canine evidence and provided them with research indicating dogs had varying levels of reliability depending on the substances in a sample. He pointed out to the Spinales that some substances arson dogs alert to are actually common in the environment. Lentini said that the convenience that the store sold glue and lighter fluid that could be detected by a dog. He quoted NFPA 921:
"The collection of comparison samples is especially important in the collection of materials that are believed to contain liquid or solid accelerants. For example, the comparison sample for physical evidence consisting of a piece of carpeting believed to contain a liquid accelerant would be a piece of the same carpeting that does not contain any of the liquid accelerant. Comparison samples allow the laboratory to evaluate the possible contributions of volatile pyrolysis products to the analysis and also to estimate the flammability properties of the normal fuel present."
Lentini noted that the area where the carpet sample was taken from was "in very good shape for a carpet that supposedly had ignitable liquid put on it."
Judge Gertner's Analysis
On an ineffective assistance of counsel claim, the applicant must show that his counsel's performance was deficient and that he suffered prejudice as a result. Judge Gertner did not find a complete failure by the defense counsel, though noting that "candidly, counsel's performance came close," but found most fault in counsel's failure to move for a Daubert hearing or attempt to exclude the arson evidence.
Daubert. Scientific evidence must not only be relevant, but reliable, and, under Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the court must conduct “a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue.” Such a hearing should have been requested here. Judge Gertner stated:
"Despite ample reasons for defense counsel to be on notice of serious problems with the government's expert evidence--from Titus, from Muse, arguably from their own investigation--they did not request a Daubert hearing as to anything. They knew that there were problems in the Domingos cause-and-origin investigation and the Drugan laboratory analysis that undermined their validity; they knew that the failure to take a control sample in this case was inconsistent with the scientific method and NFPA 921 ...(governing collection of comparison samples); they knew that the investigation of the basement was inadequate, or at least, not fully documented; and they knew or should have known that the canine evidence was supposed to be admitted for only a limited purpose, namely, assisting in the selection of samples that have a 'higher probability of laboratory confirmation than samples selected without the canine's assistance,' and that testimony beyond those purposes was potentially prejudicial...." (emphasis in original)
The judge described the Spinales has having demonstrated a "lack of preparation, even thought," and cited substantial legal and scientific literature that the Spinales should have become at least somewhat familiar with regarding arson evidence. Further:
"Spinale could not have reasonably believed that a Daubert hearing was waived when the Court asked him over and over again if he wanted such a hearing-even mid-trial. Indeed, the government's claim that Spinale did not move for a hearing because he feared the Court would be aggravated is absurd. This Court explicitly invited the challenge so that critical scientific issues could be hashed out outside of the presence of the jury."
The judge cited a federal district court case from West Virginia, which held that "the use of the dog alert as substantive evidence is beyond the accepted scope and application of the technique as described in the NFPA guide." U.S. v. Myers, 2010 WL 2723196 (S.D.W.Va. 2010). The Spinales should have objected "to all statements that suggested that the alert had any validity beyond helping the fire investigators to choose samples."
The Spinales should have also objected to the handler's "truly extravagant testimony about Billy, the dog, her powers, her accuracy, her role in accelerant-detection in general and in this case, and to the government's closing." The judge referred to scientific articles indicating substantial error rates in canine alerts, which were never raised by the Spinales.
Prejudice. In describing how Hebshie was prejudiced by the Spinales' representation, Judge Gertner said that there was a reasonable probability the criminal trial court would have granted a Daubert hearing if it had been requested, and from such a hearing or on objection would have excluded the laboratory accelerant sample test, would have excluded the canine evidence "or severely limited it," and would have reduced the significance of the cause-and-origin testimony. Without this evidence, there would essentially "have been no case at all," making it reasonably probable that the outcome of the trial would have been different.
The U.S. Attorney's office has filed a notice of appeal. Hebshie will appear at a status conference in federal court in Boston on December 29.
Conclusion
There is something of a conceit in many TV crime shows that lawyers in private law firms must come in and save the day from overworked and less competent legal services lawyers. This has been an ongoing theme in The Good Wife, a show with excellent writers, who are either lawyers themselves or whose work must be checked by lawyers. Nevertheless, sometimes the client should stick with the court-appointed lawyer, as may have been true here.
I should point out that though this case was a poor example of accelerant detection canine procedure, there are many cases where the alerts of such dogs have been carefully considered and admitted. This is not the place to review a broad range of accelerant detection cases, but that is something I will do in the book I am working on with the help of Tadeusz Jezierski, L.E. Papet, John Grubbs, Greg Keller, and others regarding canine forensics and law.
U.S. v. Hebshie, 2010 WL 4722040 (D.Mass. 2010).
Thursday, December 16, 2010
Bomb Dogs More Effective Than Manual Screening at Ferries, but Cost Three Times as Much
U.S. ferries annually carry over 80 million passengers and 25 million vehicles. They are potential targets for terrorism, and ferry systems have been hit by terrorists overseas. The Transportation Security Administration supplies Visible Intermodal Prevention and Response teams to ferry systems. Some of these VIPR teams include explosives detection canine teams (a handler and a dog). TSA has deployed 319 VIPR units to ferry systems in almost four years, but it is not clear how many of these units included canine teams. Statistics have not been provided as to how many canine teams work in the ferry system on any given day, but it seems likely that only a small portion of people, luggage, and vehicles going onto ferries are actually sniffed by dogs. The map shows areas with significant ferry services in the U.S. (Dark circles show human passengers; light circles show vehicles. Washington State has a high level of cars on its ferries.) In a report published this month, the Government Accountability Office evaluated security at ferry systems using canine and manual screening. Some ferry systems use walk-through metal detectors and baggage belts. The GAO noted that the Coast Guard believes that canine screening is “a reliable and proven method for detecting concealed explosives.” The Coast Guard has stated that “canines provide advantages of superior mobility and the ability to follow a scent directly to its source—citing that canines have a higher probability of detection compared to manual, x-ray, and trace detection methods.”
The description of following a scent to its source may be (or may not be) a reference to Auburn’s now-trademarked Vapor Wake Detection Program, which the GAO has described recently. See Technology Assessment: Explosives Detection Technologies to Protect Passenger Rail, GAO-10-898, p. 42 (July 28, 2010). On November 16, 2010, Auburn was granted trademark rights to the phrase, Vapor Wake. (I have some concern that Auburn’s trademarking of this phrase may induce other training organizations to seek protection for phrases used in marketing and online materials. Some of those phrases may be used by other organizations, meaning that everyone will have to check whether their use of a phrase has become problematic because of someone else trademarking it.)
A dog’s alert allows a ferry to take further action. According to the GAO:
"[S]tate police officers who perform canine screening at one ferry system we visited reported that state case law generally prohibits them from opening a vehicle trunk without the driver’s consent or a search warrant. However, when a canine detects a potential threat associated with a vehicle and the driver does not consent to trunk screening, officers notify the ferry captain. Under the ferry system’s security procedures, anyone denying such a screening will be prohibited from boarding, preventing a potential risk from boarding the ferry."
The Coast Guard has estimated, however, that canine screening is over three times more expensive than manual screening, with a startup program for two handlers and two dogs costing about $250,000. This apparently means that the training phase of the handler, and the expenses related to a dog before deployment, amount to about $125,000. One port security official estimated that the cost of one system’s four canine units per year was $160,000, meaning that a single team costs about $40,000 a year (at least at one location, probably in the South where handler salaries are lower).
The GAO should have investigated how a calculation was reached that canine screening is so much more expensive than manual screening. This seems to be something of a comparison of apples and oranges. For instance, if a ferry takes automobiles, it would be far more time-consuming, likely less thorough, and certainly more Constitutionally suspect, to manually search every car than to walk an explosives detection dog through the vehicle hold. The generally less intrusive nature of drug and explosives sniffs—sui generis as Justice Sandra Day O’Connor described it 27 years ago in U.S. v. Place, 462 U.S. 696 (1983)—continues to explain why canine teams have procedural and often economic advantages over other criminal investigation techniques. (O’Connor’s Latin phrase, sui generis, has never stopped reverberating through the case law of canine sniffs; see the opinion of Justice John Paul Stevens in Illinois v. Caballes, 543 U.S. 405 (2005), concerning automobile sniffs during a legitimate traffic stop.)
Cost issues would, of course, become somewhat secondary if a U.S. ferry were to become a terrorist target.
No uniform standards exist for non-federal canine teams used for screening at ports, though federal project bids will usually include requirements and the captain of a port may have to approve a contractor. Coast Guard officials informed GAO that DHS is currently evaluating the feasibility of developing standards for nonfederal canine programs. (Participants in TSA’s Transit Security Grant Program and DHS’s Homeland Security Grant Program must satisfy SWGDOG guidelines.)
Government Accountability Office, Maritime Security: Ferry Security Measures Have Been Implemented, but Evaluating Existing Studies Could Further Enhance Security, GAO-11-207 (December 2010)
Additional Notes. On December 22, according to the Atlanta Journal-Constitution, federal agents conducting a sweep around Hartsfield-Jackson Atlanta International Airport found men hiding in a truck at the Delta Airlines cargo facility. It was the second night of a Visible Intermodal Prevention and Response operation focused on trucks carrying cargo to be loaded on planes. No specific threat prompted the operation. Bomb dogs, a radioactive detector, and an x-ray device were brought but no explosives were found. This indicates that VIPR teams often involve deploying multiple modalities. DHS also summarized the incident in its daily report. The TSA Blog for August 22, 2013, indicates VIPR teams are not being cut back, at least in rail environments.
Saturday, December 11, 2010
School District Resists Autism Service Dog, but Benefits Outweigh Control Problems
K.D., an autistic child, attended an Illinois elementary school. In May 2009, the boy received a Labrador retriever, Chewey, from Autism Service Dogs of America (ASDA). The court kept the child’s identity and the family’s name confidential, but news reports have identified them. The Villa Grove School District soon sent K.D.’s parents a letter saying that Chewey could not accompany K.D. to school. In July 2009, K.D.’s parents filed suit, seeking a court order permitting K.D. to bring Chewey to the school. The school district filed a motion to dismiss the case because (1) the parents had not exhausted administrative remedies before beginning their suit, and (2) Chewey was not a service animal under the Illinois School Code, which specifies:
"Service animals such as guide dogs, signal dogs or any other animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions, whether in or outside the classroom." 105 ILCS 5/14-6.02
The trial court denied the school district’s motion to dismiss, and Chewey went with K.D. to school during the 2009-2010 school year.
The parents then sought a court order to require the school district to:
1. Train at least one primary staff member and one backup staff member in the commands needed for Chewey to accompany K.D. to all school functions.
2. Designate one primary staff member to hold Chewey’s leash while K.D. is also tethered to Chewey during transition periods throughout the school day.
3. Designate one primary staff member to release K.D. from his tether while he uses the restroom facilities and during periods with heavy physical activity, such as gym classes.
4. Allow Chewey access to water and to relieve himself during the school day.
The trial court denied this relief, finding the request exceeded the scope of the School Code.
At a hearing, Kati Witko, an ASDA program training director, who trained dogs to assist autistic children, described Chewey’s training. Dogs receive approximately 16 months of training, beginning when they are six to eight months old. Dogs in training are taken to schools to learn to remain calm around children with loud behavior. Dogs are taught to remain at a down-stay position with a child, and not to move from that position unless commanded by a handler.
"Witko stated Chewey is not currently commanded by K.D. because K.D. does not function at a level where he could provide Chewey with a sense of leadership or control. Rather, he is specifically trained not to respond to K.D.'s commands, and thus someone else must command him. Although Chewey knows over 30 commands, a handler needs to know only 5 to manage Chewey in a school environment. Chewey's main handler is K.D.'s mother, Nichelle."
After Chewey had been trained in Oregon, he was assigned to the family in Illinois. Witko went to Illinois to teach Chewey how to apply his training to K.D. This should have involved working in the school as well as the home, but since the school district was not at the time allowing Chewey into the school, Witko had to return in August 2009. At that time she spoke with K.D.’s speech teacher, his one-on-one aide, the head of special education at the school, and some “fill-in” aides. Witko left her contact information with school officials but no one from the school contacted her and her follow-up calls were never returned.
Chewey was taught to “stand his ground” when tethered to K.D. to prevent him from running into traffic or other dangerous situations. Tethering is intended to give the child some sense of independence and to reassure family members and school staff that the child will not be able to run. Chewey was also taught a command to apply deep pressure with his head or a paw to K.D., which Witko described as something children with autism “seek and need.”
Nichelle D. the boy’s mother, testified that K.D.’s autism frequently caused him to run away and into dangerous situations, even leaving the house at night while the rest of the family was asleep. K.D. only slept two to three hours a night. After obtaining Chewey, K.D. became upset for shorter periods of time, completed his homework, and began to sleep six to eight hours a night. Chewey barks if K.D. leaves his bed. He began to go to school calmly and happily, without tantrums.
K.D.’s one-on-one aide, Aimee Reardon, helped K.D. “transition” from place to place and do his homework. She testified that the dog did nothing without a command, but said that commands often had to be repeated two to three times. She said Chewey would bark at other dogs near the playground and try to go to dogs. Sometimes he barks in school and sniffs other students. Removing his gentle leader was sometimes difficult. Sometimes K.D. would try to give Chewey commands that differed from those Reardon was giving the dog, which seemed to confuse Chewey.
Kathy Burgess, a full-time aide for the school district, tethered and untethered K.D. and Chewey in the classroom and lunchroom, and also testified to Chewey’s barking at other dogs and sometimes having to be restrained from trying to get to them. She also said that commands had to be repeated. She said she had not notified Witko about Chewey’s barking because it was not a consistent problem.
Beth Wiessing, a speech-language pathologist, met with K.D. four days a week during the 2009-2010 school year. She expressed concern that Chewey “increasingly” stood up when K.D. stood up, despite not being commanded to do so. The dog once ignored a command to stop following K.D. down a hallway when K.D. was untethered. She also complained of having to repeat commands to the dog. She described K.D. as throwing more tantrums after being paired with the dog, as increasingly repeating vocalizations of other persons (a condition called echolalia), and said that the child’s use of spontaneous language had decreased.
The trial court ruled that Chewey was a service animal because he had been individually trained, the child had a disability, and the dog had been trained to perform tasks for the benefit of the child. The court said that to be a service animal the law did not mean that the dog had to perform tasks flawlessly.
The school district appealed, continuing to insist that Chewey was not a service animal, an argument that was a loser on the facts. The appellate court affirmed the trial court in concluding that Chewey was a service animal, as well as denying the argument regarding exhaustion of administrative remedies. This court agreed with the trial court that even if Chewey’s behavior sometimes varied from his training, the Illinois School Code “does not specify service animals must behave perfectly at all times.” Nor does the statute require that a child’s educational and behavioral performance be evaluated before an animal qualifies as a service animal. In testifying, some of the staff seemed to make too much of minor problems and I had to wonder if they were all on board with the school district’s position and the litigation strategy that came from it.
The school district argued that the dog did not “accompany” K.D., as allowed by the School Code quoted above, because K.D. was not Chewey’s handler. The court found this argument sophistic. Given that the trial court had rejected the parent’s motion to require that numerous staff be trained to handle Chewey while K.D. was at school, neither the trial nor the appellate court required the school to provide a handler. This is somewhat analogous to the situation where a facility is required to admit a service animal, but not to care for it when the handler is unable to take care of the dog. For instance, a hospital may be required to admit a service dog accompanying someone who is getting an MRI, but not required to take care of the dog during the MRI. The patient has to bring an alternative handler. The teachers and aides at a special school must adapt to each child, however, making the situation different from a hospital providing an MRI where no staff member would be responsible for a patient in the same way. If a child uses a prosthetic device, for instance, a school would have to train staff to help the child with the device and the same could be said to be true of a service dog. (See 105 ILCS 4/14-1.08, referring to Special equipment for use in the classroom, required by the child because of his disability….”; see also 105 ILCS 4/14-8.02, referring to “supports” for children with autism spectrum disorders.) Since an aide and other staff performed handler functions during the 2009-2010 school year, it must be hoped that the school district will not now argue that an aide would have to be hired by the parents to assume this role.
The school arguably could have based an argument on the dog’s effect on other children in the school, though I think that this would fail because the school would have to reasonably accommodate conflicting interests. The Illinois Code provides that the service animal “be permitted to accompany that student at all school functions, whether in or outside the classroom.” So even if other children are allergic to dogs, satisfying the statute would require that children be separated into different classes to avoid the problem. At least one family has expressed concern about the safety of their child at the Villa Grove Elementary School. Service dogs are trained not to be aggressive and such concerns would probably have been resolved had the school worked with the ASDA trainer. If counseling did not resolve a child’s fears, again the statute would require the school to find an accommodation for both children.
Schools, service dog organizations, and the parents of the child receiving the service dog should reach a formal agreement as to their responsibilities for a service dog before a dog is placed in a school setting. Patty Dobbs Gross, Executive Director of North Star Foundation in Storrs, Connecticut, says that getting a school to buy into the advantages of a dog working with a child at school is extremely important to help everyone concerned in traveling up the necessary learning curves. Such important topics as bullying from normally developing students can be addressed through the introduction of a service dog if the dog is used as an educational tool. According to Patty, who runs tolerance programs with her service dogs in training at schools, there is no better way to teach tolerance than through the eyes of a puppy being trained to help a child with a disability.
From a staff training perspective, it was unfortunate that the elementary school involved in this case did not work with the trainer from ASDA. The dog could, for instance, have been taught to play in the schoolyard with the children, returning balls with his nose. This would likely focus the attention of the dog on the child (or children) rather than on other dogs within sight of the schoolyard, as well as help to integrate the child with autism socially with his peers. Such training glitches as Chewey sniffing children and being slow to respond to commands from adults would also have been addressed in a timely manner. As Rick Manley of the Phoenix Field and Obedience Club taught me long ago, repeating commands is a way of training the dog to respond to a command only after it has been repeated several times.
The accommodation requirements of some of the newer service dog types may present more difficult questions than merely whether a dog is a service animal. Autism service dogs are required to deal with complex situations, and a child that is abusive to a dog may not be a good candidate for a service animal, but this is one case where the advantages of the dog to the child were very clear. The resistance that formed somewhere in the administrative hierarchy of the school district was most unfortunate.
K.D. v. Villa Grove Community Unit School District No. 32 Board of Education, 936 N.E.2d 690 (Ill.App. 4 Dist. August 24, 2010). For a discussion of autism service dogs and some of the relevant research, see Service and Therapy Dogs in American Society (pp. 79-83).
Email Comment. I received an email from someone who has been following the case who points out that the dog is apparently conflicted when K.D. gives Chewey commands. She points out that this indicates that the dog is willing to respond to the boy's commands and that some bond has formed. When autism service dogs do not bond with a child, the dog tends to ignore the child's efforts to control it, and may even shy away from the child.
"Service animals such as guide dogs, signal dogs or any other animal individually trained to perform tasks for the benefit of a student with a disability shall be permitted to accompany that student at all school functions, whether in or outside the classroom." 105 ILCS 5/14-6.02
The trial court denied the school district’s motion to dismiss, and Chewey went with K.D. to school during the 2009-2010 school year.
The parents then sought a court order to require the school district to:
1. Train at least one primary staff member and one backup staff member in the commands needed for Chewey to accompany K.D. to all school functions.
2. Designate one primary staff member to hold Chewey’s leash while K.D. is also tethered to Chewey during transition periods throughout the school day.
3. Designate one primary staff member to release K.D. from his tether while he uses the restroom facilities and during periods with heavy physical activity, such as gym classes.
4. Allow Chewey access to water and to relieve himself during the school day.
The trial court denied this relief, finding the request exceeded the scope of the School Code.
At a hearing, Kati Witko, an ASDA program training director, who trained dogs to assist autistic children, described Chewey’s training. Dogs receive approximately 16 months of training, beginning when they are six to eight months old. Dogs in training are taken to schools to learn to remain calm around children with loud behavior. Dogs are taught to remain at a down-stay position with a child, and not to move from that position unless commanded by a handler.
"Witko stated Chewey is not currently commanded by K.D. because K.D. does not function at a level where he could provide Chewey with a sense of leadership or control. Rather, he is specifically trained not to respond to K.D.'s commands, and thus someone else must command him. Although Chewey knows over 30 commands, a handler needs to know only 5 to manage Chewey in a school environment. Chewey's main handler is K.D.'s mother, Nichelle."
After Chewey had been trained in Oregon, he was assigned to the family in Illinois. Witko went to Illinois to teach Chewey how to apply his training to K.D. This should have involved working in the school as well as the home, but since the school district was not at the time allowing Chewey into the school, Witko had to return in August 2009. At that time she spoke with K.D.’s speech teacher, his one-on-one aide, the head of special education at the school, and some “fill-in” aides. Witko left her contact information with school officials but no one from the school contacted her and her follow-up calls were never returned.
Chewey was taught to “stand his ground” when tethered to K.D. to prevent him from running into traffic or other dangerous situations. Tethering is intended to give the child some sense of independence and to reassure family members and school staff that the child will not be able to run. Chewey was also taught a command to apply deep pressure with his head or a paw to K.D., which Witko described as something children with autism “seek and need.”
Nichelle D. the boy’s mother, testified that K.D.’s autism frequently caused him to run away and into dangerous situations, even leaving the house at night while the rest of the family was asleep. K.D. only slept two to three hours a night. After obtaining Chewey, K.D. became upset for shorter periods of time, completed his homework, and began to sleep six to eight hours a night. Chewey barks if K.D. leaves his bed. He began to go to school calmly and happily, without tantrums.
K.D.’s one-on-one aide, Aimee Reardon, helped K.D. “transition” from place to place and do his homework. She testified that the dog did nothing without a command, but said that commands often had to be repeated two to three times. She said Chewey would bark at other dogs near the playground and try to go to dogs. Sometimes he barks in school and sniffs other students. Removing his gentle leader was sometimes difficult. Sometimes K.D. would try to give Chewey commands that differed from those Reardon was giving the dog, which seemed to confuse Chewey.
Kathy Burgess, a full-time aide for the school district, tethered and untethered K.D. and Chewey in the classroom and lunchroom, and also testified to Chewey’s barking at other dogs and sometimes having to be restrained from trying to get to them. She also said that commands had to be repeated. She said she had not notified Witko about Chewey’s barking because it was not a consistent problem.
Beth Wiessing, a speech-language pathologist, met with K.D. four days a week during the 2009-2010 school year. She expressed concern that Chewey “increasingly” stood up when K.D. stood up, despite not being commanded to do so. The dog once ignored a command to stop following K.D. down a hallway when K.D. was untethered. She also complained of having to repeat commands to the dog. She described K.D. as throwing more tantrums after being paired with the dog, as increasingly repeating vocalizations of other persons (a condition called echolalia), and said that the child’s use of spontaneous language had decreased.
The trial court ruled that Chewey was a service animal because he had been individually trained, the child had a disability, and the dog had been trained to perform tasks for the benefit of the child. The court said that to be a service animal the law did not mean that the dog had to perform tasks flawlessly.
The school district appealed, continuing to insist that Chewey was not a service animal, an argument that was a loser on the facts. The appellate court affirmed the trial court in concluding that Chewey was a service animal, as well as denying the argument regarding exhaustion of administrative remedies. This court agreed with the trial court that even if Chewey’s behavior sometimes varied from his training, the Illinois School Code “does not specify service animals must behave perfectly at all times.” Nor does the statute require that a child’s educational and behavioral performance be evaluated before an animal qualifies as a service animal. In testifying, some of the staff seemed to make too much of minor problems and I had to wonder if they were all on board with the school district’s position and the litigation strategy that came from it.
The school district argued that the dog did not “accompany” K.D., as allowed by the School Code quoted above, because K.D. was not Chewey’s handler. The court found this argument sophistic. Given that the trial court had rejected the parent’s motion to require that numerous staff be trained to handle Chewey while K.D. was at school, neither the trial nor the appellate court required the school to provide a handler. This is somewhat analogous to the situation where a facility is required to admit a service animal, but not to care for it when the handler is unable to take care of the dog. For instance, a hospital may be required to admit a service dog accompanying someone who is getting an MRI, but not required to take care of the dog during the MRI. The patient has to bring an alternative handler. The teachers and aides at a special school must adapt to each child, however, making the situation different from a hospital providing an MRI where no staff member would be responsible for a patient in the same way. If a child uses a prosthetic device, for instance, a school would have to train staff to help the child with the device and the same could be said to be true of a service dog. (See 105 ILCS 4/14-1.08, referring to Special equipment for use in the classroom, required by the child because of his disability….”; see also 105 ILCS 4/14-8.02, referring to “supports” for children with autism spectrum disorders.) Since an aide and other staff performed handler functions during the 2009-2010 school year, it must be hoped that the school district will not now argue that an aide would have to be hired by the parents to assume this role.
The school arguably could have based an argument on the dog’s effect on other children in the school, though I think that this would fail because the school would have to reasonably accommodate conflicting interests. The Illinois Code provides that the service animal “be permitted to accompany that student at all school functions, whether in or outside the classroom.” So even if other children are allergic to dogs, satisfying the statute would require that children be separated into different classes to avoid the problem. At least one family has expressed concern about the safety of their child at the Villa Grove Elementary School. Service dogs are trained not to be aggressive and such concerns would probably have been resolved had the school worked with the ASDA trainer. If counseling did not resolve a child’s fears, again the statute would require the school to find an accommodation for both children.
Schools, service dog organizations, and the parents of the child receiving the service dog should reach a formal agreement as to their responsibilities for a service dog before a dog is placed in a school setting. Patty Dobbs Gross, Executive Director of North Star Foundation in Storrs, Connecticut, says that getting a school to buy into the advantages of a dog working with a child at school is extremely important to help everyone concerned in traveling up the necessary learning curves. Such important topics as bullying from normally developing students can be addressed through the introduction of a service dog if the dog is used as an educational tool. According to Patty, who runs tolerance programs with her service dogs in training at schools, there is no better way to teach tolerance than through the eyes of a puppy being trained to help a child with a disability.
From a staff training perspective, it was unfortunate that the elementary school involved in this case did not work with the trainer from ASDA. The dog could, for instance, have been taught to play in the schoolyard with the children, returning balls with his nose. This would likely focus the attention of the dog on the child (or children) rather than on other dogs within sight of the schoolyard, as well as help to integrate the child with autism socially with his peers. Such training glitches as Chewey sniffing children and being slow to respond to commands from adults would also have been addressed in a timely manner. As Rick Manley of the Phoenix Field and Obedience Club taught me long ago, repeating commands is a way of training the dog to respond to a command only after it has been repeated several times.
The accommodation requirements of some of the newer service dog types may present more difficult questions than merely whether a dog is a service animal. Autism service dogs are required to deal with complex situations, and a child that is abusive to a dog may not be a good candidate for a service animal, but this is one case where the advantages of the dog to the child were very clear. The resistance that formed somewhere in the administrative hierarchy of the school district was most unfortunate.
K.D. v. Villa Grove Community Unit School District No. 32 Board of Education, 936 N.E.2d 690 (Ill.App. 4 Dist. August 24, 2010). For a discussion of autism service dogs and some of the relevant research, see Service and Therapy Dogs in American Society (pp. 79-83).
Email Comment. I received an email from someone who has been following the case who points out that the dog is apparently conflicted when K.D. gives Chewey commands. She points out that this indicates that the dog is willing to respond to the boy's commands and that some bond has formed. When autism service dogs do not bond with a child, the dog tends to ignore the child's efforts to control it, and may even shy away from the child.
Thursday, December 2, 2010
Huang Hua, Joan Hinton, and China, 1984
Two people that I met in China died recently. Last week it was Huang Hua, once Vice Prime Minister of China, who entertained my father and the members of his family traveling with him in a dining hall in the Forbidden City in Beijing. More on that later. The other was Joan Hinton, whom I met on a collective farm in rural China. My father led a group of American agriculturalists around China for 30 days in 1984. Instead of just visiting the cities, we spent much of our time in the country so that the agricultural scientists could talk with the people running the large farming operations. Joan Hinton and her husband were on a farm that had a large dairy operation that Hinton’s husband, Erwin Engst, had helped build. The couple had raised their children in China and Mrs. Hinton told me that her son, who had returned to the United States for college, had an accent that for some reason was mistaken as German, not Chinese. The Hintons wore Mao jackets, which was curious since this was twelve years after Nixon’s visit and eight years after Mao’s death. Most government officials by then were wearing well-tailored Italian suits. My father said that Engst and others had built a very good dairy operation from scratch, and he was impressed. He did not know anything about Hinton and it was only after her obituary appeared in the New York Times in June of this year that I learned of her connection to the Manhattan project and the suspicion that she may have been a spy. The couple struck me as good natured old lefties of the sort that one could still find in the coffee shops along Telegraph Avenue in Berkeley in the 60s talking about visiting Trotsky in Mexico before his assassination by Stalin's agents.
Huang Hua was a very different story and to tell what I know about him requires that I explain why my father was in China in the first place, By the time I went with him in 1984 my father and mother had been to China five times. They had first gone in 1972. When Nixon returned from China my father got a call from Earl Butz, then Secretary of Agriculture, whom my father had known for more than a decade. As my father told it, Butz’s first words were, “You’re going to China.” My father had no connection with China and asked why. “They asked for you,” was Butz’s reply. “But why me?” my father asked. “I don’t know.” In time my father did find out. In the 1950s, he had written up some research he found in a journal published in Hong Kong. The paper had been roughly translated into English and my father saw the results as significant. He wrote about this in several places, but never knew that it had come out of Red China. He told me he had assumed it had been done in Taiwan or Hong Kong. My father’s attention gave the paper international recognition at a time when Chinese research was often ignored by western scientific publications. The Chinese never forgot and when Butz asked if they had a preference about who could lead the first exchange of livestock producers, they asked for my father.
So in late 1972 my father went to China. He met several officials and spoke at the University of Beijing, but he spent most of his time talking to the leaders of collective farms. Because he went to parts of China where no American had been for a generation, his return flight was routed through Washington where he was debriefed by someone from the Pentagon. According to my father, he made a lousy spy because, in his words, "I couldn't tell a missile silo from a grain silo." (Actually I'm quite sure he could, but it was probably his way of saying that the debriefing made him uncomfortable. He thought that agriculture should be outside of politics, if not above it.)
My father kept going back. Several times he asked me to come with him, but the time required either conflicted with school (I was in law school until 1974) or work. Finally I went in 1984. The dinner in the dining hall in the Forbidden City with Huang Hua and his wife was perhaps the most unique event I have ever attended. My father had been dealing with the Vice Prime Minister for years and the two had become friends, but the rest of us were in awe of the man who had met with Henry Kissinger to bring down the barriers that had separated China from the United States since 1949. After the dinner was over and we were being taken back to our hotel, my wife turned to me and said, “Two little nebbishes from New York have just had dinner with one of the most powerful men in the world in one of the most unusual places in the world.” Indeed. At about 3 a.m. the entire group of about 20 were wakened and driven to see Mao, whose body, preserved in an inert atmosphere, had not been visible to the public for some months while his mausoleum was being repaired. There were large plastic sheets hanging around the walls of the room to prevent the public from looking in. The time was selected so that no one would know that an American group had been allowed to see Mao when others were being denied the privilege. It was a favor to my father from Huang Hua.
I wish that I could say that I had seen paintings of Pekingese dogs on the walls of the imperial palace, but I didn’t. The only dogs I remember from that trip were the several varieties of dogs that the shepherds in Inner Mongolia kept for their herds. They are hardy animals. With the cold winds and long winters of Mongolia, they have to be. My mother took some pictures of these dogs for possible inclusion in a revision of The Complete Book of Dogs, which my father never got around to. My efforts to find the pictures my mother took of the Mongolian dogs have so far been unsuccessful. The picture here is from stock photography.
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