Appeals Court weighing animal cruelty convictions
Jul. 15—SALEM — The attorney representing a New York dog breeder convicted of animal cruelty three years ago tried to convince an Appeals Court panel Friday that "no rational trier of fact could conclude that the evidence was sufficient to sustain this conviction."
The problem for Dominick Donovan and his current lawyer, Dale Merrill: That trier of fact was a superior court judge. And the suggestion that he got it wrong when he credited the testimony of a co-defendant who had a deal with prosecutors didn't appear to sit well with the Appeals Court judges.
"Is it your strongest argument, in your opinion, that the judge was not a rational trier of fact?" asked Appeals Court Justice Amy Blake near the end of Merrill's argument.
"Well, that is part of the standard that has to be met, and I think that applying common sense and experience, we would all have to stay that was not a rational decision to come to," Merrill responded.
Donovan, now 57, of Long Island, New York, was sentenced to four years in jail, followed by probation, after his 2018 jury-waived trial. Judge James Lang, after hearing two weeks of testimony, found Donovan guilty of six counts of animal cruelty, for the deaths of two puppies named Livid and Gotti, and for inhumanely cropping the ears of four puppies.
Much of the case hinged on the testimony of a Salem man, Jason Gentry, who had been involved in a deal to purchase and breed a type of dog Donovan had dubbed "Donovan Pinschers."
Gentry, who was also facing animal cruelty charges stemming from the earlier death of a dog named Wotan, testified against Donovan and subsequently received a sentence of probation.
But Gentry's testimony was in conflict with earlier statements he'd made to police — so much so, Merrill argued in her brief in the case, that his testimony was "no more reliable than the spectral evidence" offered at the Salem Witch Trials in 1692.
"Gentry's testimony, like that of Miss Parris and Miss Williams defied science and rational thought," Merrill wrote. "Such evidence is insufficient to sustain a conviction."
"It is important to keep in mind, that as soon as Gentry was arrested on July 9, 2015 for the brutal death of the dog, Wotan, and for the horrendous conditions at his Alpha Canine Performance Kennel, he approached the police and the Commonwealth to make a deal for leniency in his matter, in exchange for accusations against Mr. Donovan," Merrill wrote.
Merrill also raised concerns about the limited investigation done by Revere police after the dogs were found.
Much of Merrill's focus was on the fact that in order for Gentry's version of events — that Livid and Gotti were hanged by Donovan at Gentry's kennel during a visit to Salem for Halloween in 2014, and were found weeks later in a bag at a Revere gas station trash container — to be true, the dogs' corpses would have been in far worse condition.
"Two dead dogs in garbage bags could not be exposed to seagulls, rats, racoons and other scavengers in Revere for three weeks without some damage to the corpses and the bags in which they were stored," Merrill argued.
And there was no evidence to show that Donovan had returned to Massachusetts in the time between his Halloween visit and the discovery of the dogs.
On the other hand, Gentry, the lawyer argued, was familiar with the area in Revere where the dogs were found. And he made no mention of any involvement by Donovan until after he was charged.
Gentry, the initial suspect in the death of the two dogs, "was working a deal with the Commonwealth to minimize his own sentence (and) admitted that he repeatedly lied and changed his story," Merrill argued in her brief.
She also argued that Lang's error in a ruling, attributing some of the testimony to Donovan (who did not take the stand), and mistakes by Donovan's own attorney at trial, Jack Atwood, call for Donovan's conviction to be set aside.
Merrill argued that Atwood failed to call a witness and enter records showing that the four puppies supposedly cropped without anesthesia by Donovan were actually cropped at a veterinary clinic. She also suggested that Atwood, at 71, was unable to handle the rigors of a lengthy trial.
But without any prior proceedings on potential errors by Atwood, Blake on Friday suggested that the appeals panel has little to go on.
Assistant District Attorney David O'Sullivan argued that the judge did weigh all of the evidence and concluded that Gentry was credible.
He suggested that the appeal was based solely on the defense wanting the judge to discount Gentry's testimony.
"The defense consisted of an attack on Gentry's credibility and the police investigation, and expert testimony suggesting the puppies had died closer in time to the date of their discovery," O'Sullivan argued in his brief.
O'Sullivan argued that the judge simply misspoke when he used Donovan's name instead of Gentry's in his ruling relating to Gentry's testimony. And, he said, it is improper for the defense to now raise, for the first time, a claim of ineffective representation by Donovan's trial attorney.
"The claim is spurious where, in context, the judge plainly misspoke and did not believe the defendant testified in the Commonwealth's case in chief," O'Sullivan argued.
When Blake pressed Merrill earlier in the hearing as to whether she conceded that the judge misspoke, however, Merrill said she would not.
Appeals Court decisions typically take several months.
While serving his sentence last year, Donovan became a named plaintiff in a case brought by the state's public defender office and other legal groups against the state asking for prisoners to be released due to the pandemic.
Courts reporter Julie Manganis can be reached at 978-338-2521, by email at jmanganis@salemnews.com or on Twitter at @SNJulieManganis.
