Denise Menendez owns Duke, who is confined to a Long Island animal shelter.
Photo credit: Kirk Condyles for The New York Times
By PAUL VITELLO
Published: April 12, 2007
BAY SHORE, N.Y., April 11 — In legal papers filed on Wednesday in the Appellate Division of State Supreme Court, the conflicting portraits of the prisoner seem to describe two different individuals. He is a vicious predator with a history of assault. Or, he is the kind who would not even show his teeth if you pulled his ears. After three and a half years on doggie death row, Duke, a 5-year-old American pit bull terrier, is the subject of an unusual, last-ditch appeal of a judge’s “order of destruction” over his attacks on a neighbor dog twice in two months in 2003. His lawyer contends that Duke was wrongly convicted and harshly sentenced, based on a law that took effect on Jan. 1, 2004, two weeks after the attack, making dog-on-dog attacks subject to serious punishment. Before that, only dogs attacking humans were punished severely.
“We are running out of options,” said the lawyer, Amy Chaitoff. “And it would be a terrible injustice.”
Duke’s case has drawn considerable attention on Long Island. Dog rescue organizations staged a demonstration at Islip Town Hall in 2005, demanding that he be freed. And during a 2006 hearing, a crowd of about 60 gathered outside the courthouse to show solidarity with Duke’s owners, Denise and Chanse Menendez of Hauppauge.
But if the judges of the state Appellate Division in Brooklyn rule against him this time, Duke, who has been confined to the last cage on the east tier of Kennel No. 1 at the Town of Islip Animal Shelter here since Dec. 26, 2003, will probably soon eat his last biscuit. (His cage is adjacent to the small room where workers administer lethal injections to a dozen or so animals each week.)
In some ways, legal experts say, Duke represents a new class of death-row dog. New York is among a dozen states that have changed laws over the past 10 years to make it possible to seize dogs from their owners and order them euthanized for biting other dogs.
Ledy VanKavage, director of legislation for the American Society for the Prevention of Cruelty to Animals, said the stricter provisions reflected several factors: the rising numbers of pet dogs in American households, a growing concern about highly publicized vicious dog cases, and what she called the “evolving human-animal bond.”
“The thinking goes: ‘My dog is a member of my family. If you attack my dog, you are attacking my family,’ ” she said.
But Ms. VanKavage said this was flawed logic, noting, “Dogs are predators, after all.”
The opposing view is in the papers filed on behalf of Duke’s former neighbor, Dominick Motta, who testified that on Oct. 23, 2003, Duke and his pit bull sister, Shelby, chased Mr. Motta’s bulldog, Daisy, and that Duke bit her.
After a hearing, Duke was designated a “dangerous dog” by District Court Judge Madeleine A. Fitzgibbon of Suffolk County. His owners were ordered to keep him indoors or in a specially built kennel outdoors.
When Duke got loose on Dec. 13, 2003, and again chased and bit Daisy, Mr. Motta, who then had three children ages 2 to 7, filed a follow-up complaint, which resulted in Judge Fitzgibbon’s order of destruction.
“My client did not order the dog euthanized, a judge did,” Mr. Motta’s lawyer, John L. Belford Jr. of St. James, said in an interview. “And the judge’s decision was not designed to protect my client alone.”
If Duke shares with some human death row residents the kind of mysterious personality that can look darkly dangerous to some and intriguing to others, he also shares what seems like the equanimity of one who is at peace with himself.
“Watch this, I’m going to do some things that no aggressive dog would tolerate,” said Jeff Kolbjornsen, an animal behaviorist who attended the rallies on Duke’s behalf, on a visit to the shelter the other day.
He clamped a hand over the dog’s mouth. He pushed him. He stepped on his paw, lightly. He gently slapped the dog’s head.
Duke — whose skull is about the size of a baby watermelon, whose neck is roughly as thick as a man’s thigh, and whose mouth is ear to ear — sat on his hind legs, panting, his tongue extended just past the widest part of his wide chest. He nudged and then licked Mr. Kolbjornsen’s hand.
“This is the nicest, calmest dog I have ever worked with, and I’ve been here seven years,” said Joanne Daly, an attendant at the shelter.
In the brief filed with the court on Wednesday by Ms. Chaitoff, the lawyer for Duke’s owners, affidavits from Ms. Daly and from Matt Caracciolo, the shelter supervisor, were included praising the dog’s unflappable and friendly nature.
But the main thrust of her argument is that the law under which he was prosecuted, Section 108 of the state’s Agriculture and Markets Law, which defines “a dangerous dog,” changed from the time of the attacks to the time of his trial.
In 2003, the law defined a dangerous dog as one who attacks a person or attacks certain types of service animals, like Seeing Eye dogs. It was in 2004 that the law was expanded to include “companion animals,” pets like Mr. Motta’s Daisy.
Therefore, Ms. Chaitoff said, in the eyes of the law, as well as his friends, “Duke is an innocent dog.”
Now I have to say, the pit bull is not one of my favorite breed of dogs and they do get a bad rap but I sure think “Duke” got more than he deserved. It was the judge who gave Duke the death sentence, the person whose dog he attacked had only filed a complaint with NO mention or request of having Duke euthanized.
Do you think the judge was right or wrong ordering Duke destroyed?