Gets to go home, but muzzled, pending euthanization appeal
By Nick Norlen, Staff Writer
Just two days after a municipal judge denied the same request, a Superior Court judge Thursday signed a consent order allowing Congo — the German shepherd facing euthanization for its attack on a landscaper in Princeton Township in June — to return home to his owners, the James family, to await the dog’s appeal, their attorney said.
Attorney Robert Lytle said Thursday night that he believes the signed consent order —which he had not yet seen — stipulates that the dog must be muzzled and kept on a leash whenever it is outside.
The animal control officer can also conduct periodic inspections to ensure the judge’s order is being adhered to, Mr. Lytle said.
Guy James, who owns the dog with his wife, Elizabeth James, reacted to the decision via his cell phone late Thursday afternoon from Save – A Friend to Homeless Animals shelter, where he was in the process of taking the dog home for the first time since it was brought there after the attack.
”We’re so ecstatic that Congo is coming home,” he said, noting that his family realizes the appeal process still lies ahead. “Tuesday we had tears of sadness, and today we have tears of joy.”
On Tuesday, Municipal Judge Russell Annich Jr. denied a request from Mr. Lytle to allow the dog’s release from the shelter, calling it “counterintuitive” to do so after officially labeling Congo “vicious” — which will result in euthanization, pending the family’s appeal.
Mr. Lytle had argued unsuccessfully during the hearing Tuesday that Congo should be released to the family’s custody because he has lost weight since arriving at SAVE and because his record of no previous or prior bites indicates that he is not a threat to the public.
Judge Annich, who originally ordered the dog to be euthanized in a written opinion in October, made his ruling official Tuesday approximately 20 minutes after clearing the courtroom that had been filled to capacity with supporters of the dog after someone reacted unfavorably to his decision not to release the dog to the family.
Mr. Lytle said he was pleased to see that decision reversed Thursday.
”I think it strikes the appropriate balance between the concerns the township had, the concern the James family has, and the issues that are going to be involved for the remainder of the case,” he said.
But Mr. Lytle emphasized that the decision to temporarily free Congo does not impact the appeal, which he said he doesn’t expect to be beard for four to six months.
”If the appeal does not turn out favorable to us, then the James will be required to return Congo,” he said.
Though an automatic stay of execution has been granted for the dog because of the pending appeal — filed by Mr. Lytle immediately after the decision Tuesday — Mr. James has said the family will do whatever it takes to spare the dog from the sentence.
Mr. Lytle said the appeal will focus primarily on proving that the state did not meet its burden of proof — as mandated by state statute — to show that Congo was not provoked during the June 5 attack, which left 42-year-old landscaper Giovanni Rivera, of Hamilton, in the hospital with severe bites and scratches.
Mr. Rivera required three hours of surgery because of his wounds, and had to be given 65 rabies injections because some of the dogs were unvaccinated.
He was paid a $250,000 settlement by the family’s insurance company following the attack.
After the hearing Tuesday, an emotional James family gathered near Mr. Lytle, who declined to speculate on whether the Superior Court will look favorably on his clients.
However, he said he was “very confident” in the case he presented in township court — which he will present again during the appeal.
Mr. Lytle has joined the James family previously in maintaining that the attack was unintentionally provoked — a position supported by a dog behavior expert retained by the family during the trial.
According to state statute, a dog “shall not be declared vicious … if the dog was provoked.”
However, the statute says that the “municipality shall bear the burden of proof to demonstrate that the dog was not provoked.”
Moreover, both Mr. Lytle and even Prosecutor Kim Otis has said that the issue was “a close call” in the trial.
Debate on that issue has hinged on the accounts of what happened that day during the attack.
Mr. James has said the landscapers — employees of On Target Staffing, owned by Mr. James’ brother, Roy James — arrived an hour early, and that some of them entered the grounds despite being told to wait in their vehicle.
The different parties in the case have disputed whether Mr. Rivera pulled Ms. James to the ground while trying to hide from the dogs, and whether the other four dogs were hit — or simply held at bay — with a rake by one of the other landscapers.
However, members of the James family and their supporters have likened the incident to an attack, and have said Congo was simply trying to protect his owner.
But Mr. Otis and Animal Control Officer Mark Johnson said Ms. James was never pulled to the ground, and Mr. James admitted before the hearing Tuesday that his wife “never physically landed” on the ground, but rather laid atop Mr. Rivera as he fell.
While the police report on the incident notes that Ms. James said Mr. Rivera “attempted to use her as a shield between himself and the dogs,” it does not say that Ms. James said she was pulled to the ground.
Still, both Mr. Johnson and Mr. James have said that Mr. Rivera has changed his account of the story — though they disagree on how many times.
And Mr. James has said his wife stated that she was in fact pulled down in a statement issued to Mr. Johnson immediately after the incident.
But that testimony was lost, Mr. Johnson said, when it was chewed up by a stray dog he had in the front cab of his truck, where the document was sitting.
While Mr. Lytle stated that Ms. James was pulled to the ground, he said that fact is inconsequential.
”Based on my analysis of the case, whether or not she was pulled to the ground doesn’t matter,” he said. “Before she was pulled to the ground, she was pulled from behind, causing her to scream. That alone was provocative conduct.”
Along with labeling Congo “vicious” — which mandates euthanization, pending the appeal — Judge Annich also labeled four of the family’s other dogs — Lucia, Congo’s mate, and their offspring, Bear, Shadow and Hunter — as “potentially dangerous,” which results in increased an annual licensing fee of $700 for each dog, and other requirements about how the dogs are kept.
Another dog, Magnus, was not involved in the attack because he had strayed from the property that morning, but was unlicensed, as were the other five dogs.
Because all of the dogs were unlicensed, and the younger dogs were unvaccinated, the judge levied fines of $300 and $150, respectively, plus court costs.
But he denied requests for stays on some aspects of the “potentially dangerous” labeling, which he said he will let the Superior Court decide.
As mandated by the state statute, the dogs would be tattooed with a prominently placed identification number and the owners would be required to purchase liability insurance.
Judge Annich noted that the dog owners have 60 days to meet the conditions of the labeling, and that the appeal proceedings will likely begin in just 20 days — allowing the Superior Court to grant stays if they are deemed appropriate.
After the outburst from one supporter — who said the dog is “not a car, it’s a living being” — Judge Annich rose from his seat and ordered the filled courtroom to be cleared.
After an approximately 15-minute recess to a nearby conference room, family members re-entered the court with Mr. Lytle, who requested that Ms. James be allowed to address the court.
After reluctantly allowing her to do so, Judge Annich interrupted Ms. James when she began to read a statement from her daughter Hannah after thanking supporters.
He said the matter is in the hands of the Superior Court, and that he had received many similar statements from supporters by e-mail — and in phone calls and letters at his home.
Prior to the hearing, approximately 100 of the supporters gathered outside the courtroom to protest the judge’s original decision — with signs and T-shirts that read “Save Congo” — before packing the courtroom that featured a heavy police presence.
Despite the large crowd, Township Police Chief Mark Emann said Wednesday that the day was “totally uneventful.”
He added, “We wanted to try to make it as low key as possible, yet maintain a presence — and assure the safety of both the protesters and those attending municipal court. I think they got their point across and everybody can move on from there.”
But comments made by the James family before and after the hearing indicate that they aren’t likely to move on from the case any time soon.
Ms. James, Congo’s official owner, said that the ultimate outcome of the case is important for all dog owners, and asserted that incident involving Congo was “a case of provocation.”
Asked why he refused a plea deal initially offered by Mr. Otis to have Congo deemed “potentially dangerous” and thus avoid euthanization, Mr. James said he refuses to have his dogs labeled in any way, under any circumstances.
”We’re just not going to do that,” he said. “By no means are these dogs dangerous.”