Some Judges Reconsidering Use of Comfort Dogs in Court

Like restaurants, patio bars and office spaces in dog-crazy Austin, four-legged friends can be found at the Travis County criminal courthouse.

Particularly Mickler, a 3-year old golden retriever and yellow Labrador mix with a controversial role at trials involving the sexual abuse of children.  Beloved for his even temperament, Mickler, a grant-funded service dog, brings comfort to uncomfortable situations when children testify in the same room as those accused of abusing them.

But a judge and some defense attorneys have a bone to pick with Mick, believing his presence might signal to a jury that a traumatic event indeed occurred and the child he’s there to assist can’t relive the event without him.

Those optics, Mickler’s critics say, impair a defendant’s right to a fair trial.

“That seems to me to be a comment on the evidence, specifically that the witness’s claims of trauma are credible and need some compensation,” state District Judge David Wahlberg said.

Walberg has Mickler on a short leash after the dog made a scene in his courtroom at the Blackwell-Thurman Criminal Justice Center in late March and prompted the judge to declare a mistrial.  Against objections from the defendant’s lawyer, Wahlberg approved the dog’s presence during the testimony of a 12-year old girl who said she had been sexually abused.

The judge’s ruling came with a condition: Mickler could not be seen by jurors, meaning he’d have to enter the courtroom when the jury was not present and stay under the witness stand at the girl’s feet for all of her testimony.

Thirty minutes into the girl describing abuse she said she endured from the boyfriend of a family friend, Mickler  walked out from under the witness stand and into the center of the courtroom.  Tipping the scales at 100 pounds, he was hard for jurors to miss.  He continued to the spectator pews near the entrance to the courtroom and found his handler.

It was the first time Wahlberg had let a dog into his courtroom to assist a witness. “And the last,” he said last week.

The state Legislature gives judges discretion to approve a person’s request to bring a comforting item to the witness box.  Some children choose a blanket or their favorite toy.  Others are accompanied by another person.  In the past five to seven years, service dogs have risen in popularity because of studies that show they relieve anxiety in people.

The Center for Child Protection in Austin acquired Mickler in 2017 from an agency in New Mexico as a replacement for Sidney, a therapy dog, who before her death had fulfilled many of the same courthouse duties as Mickler.  As a service dog, Mickler was viewed as an upgrade because he can work all day without breaks; Sidney and therapy dogs need breaks.

Mickler participates in roughly six trials per year and is scheduled for his fourth trial of the year later this month. The rest of the time he interacts with abused kids at the children’s center.

The $15,000 it costs annually to keep Mickler is offset by a grant from the Girls Giving Grants in Austin.

“He provides the sense of safety,” said his handler, Miriam Jansky, “When people testify, the defendant is sitting probably 6 feet away.  For a lot of kids, that can be an absolutely horrifying experience.”

Although Mickler is trained to be still when his handlers aren’t around, Jansky said the dog probably strolled into the middle of Wahlberg’s courtroom because he was lacking human interaction. She blames herself for not relaying that information to Wahlberg, who would not allow Jansky to sit with the dog under the witness stand or allow the girl to hold the dog’s leash.

“Mickler was under the stand without any kind of feedback whatsoever,” Jansky said.

At least twice in Texas, an appellate lawyer has filed an appeal suggesting the jury’s opinion of a juvenile’s testimony might have been tainted by the presence of a service dog.  The convictions were affirmed in both cases.

Two years ago in Conroe, a yellow Labrador retriever named Ranger made noises under the witness stand as a child was testifying, court records show.  Jurors did not know the dog was in the courtroom.

“Unless it can be done in a way that guarantees a dog isn’t going to be visible, I really worry about it, and I think Judge Wahlberg probably made the right call,” state District Judge Brad Urrutia said.  “The last thing you want a jury to do is start focusing on why the dog is there.”

State District Judge Brenda Kennedy said she does not have a hard stance on the issue.  “It would either be allowed or disallowed on a case by case basis,” she said.  “The law allows it, so there are circumstances where I would allow it as well.”

Therapy dogs are commonly in the adjacent civil courthouse to comfort children in cases in which the parents are fighting to retain custody against the state.  This is viewed as a less controversial role than when dogs assist in criminal courts.

In another dog-related incident in Blackwell-Thurman, a defendant on trial last month for unlawful restraint brought a Doberman to jury selection.  The dog stood up and walked around the courtroom, irritating a Travis County prosecutor who the next day signaled to the court her desire to question the man under the Americans with Disabilities Act about his need for the dog.

“I thought he conveyed to the jury he would be approved for a service dog when he had a violent history that would have precluded him from owning a service dog,” prosecutor Veronica Chidester said.  

It became a nonissue when the Doberman didn’t show up with the man the next day for trial.  But retired Judge Jon Wisser, who was filling in on the bench that day, said he was prepared to bar the dog from the courtroom.

“I was not going to permit it the rest of the trial because I didn’t think we should permit dogs in the courtroom.” Wisser said.

As for Mickler, he was not in the courtroom for the retrial last month when the 12-year old girl testified for a second time.  Prosecutors did not request his presence, but Wahlberg said he would not have granted it anyway.

The jury convicted Maria Miranda-Aguirre on two counts of trafficking a person and one count of indecency with a child by contact.  Wahlberg sentenced the woman to 12 years in prison.  Miranda-Aguirre’s boyfriend, Jose Rodriguez-Navarrete, is charged with continuous sexual assault of the girl and is set for trial May 20.

Miranda-Aguirre’s lawyer, Raymond Espersen, said he believed the girl testified more calmly in the first trial, probably because of the dog’s presence.  That said, Espersen said he’s like to see an end to the practice of dogs helping witnesses testify.  

“From a practical standpoint, it creates a mistrial and forced the child to testify for a second time,” he said.  “Rather than easing the situation, it exacerbated the situation.”