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Criminal Law
May-June 2009

Seven years for dog-fighting

Officers responding to a 911 call busted a group of people in the act of fighting dogs. Here’s how prosecutors secured a conviction for one of the dog owners.

Tameika Badger

Assistant Criminal District Attorney in Tarrant County

Until a dog-fighting case landed on my desk, I had not even thought about the issue since former NFL quarterback Michael Vick was sent to federal prison a couple of years ago. The last time I looked at the statute, causing a dog to fight with another dog was a Class A misdemeanor unless the defendant was earning money on the fight. That changed in the last legislative session; now, that offense [in Penal Code §42.10 (a)(1)] is a state jail felony, even if there is no “pecuniary benefit.” I brushed up on the new law while preparing for the case.

The case

Last May at about 12:30 a.m., Manuel Cortez and his wife were at home sleeping when he was awakened by his dogs barking. Cortez went out to his backyard to see what was going on. A big commotion was coming from the backyard of the home across the alley—it sounded like dogs fighting (he heard dogs growling in an aggressive manner and yelping like they were in pain). He also heard a crowd of people yelling, cheering, and chanting, “Get him” and “Kill him.”

Cortez had heard dog fighting from this neighbor’s yard before and figured it was happening again, so he told his wife to call 911. In the meantime, he kept watch over the goings-on and saw his neighbor, Mark Mitchell, holding a brown pit bull on a chain while a second man held a black pit bull on a chain. It looked like the men were encouraging the dogs to fight. In fact, at one point he heard a man’s voice bet $100 that his dog would kill another dog.

Officers arrived without their lights or sirens activated. As soon as they got out of their cruisers, they could hear dogs growling and people yelling (“Get him!”; “Kill him!”; “Let him go!”) from the backyard. Once they passed through a gate, the officers observed seven people in a semi-circle around two pit bulls. Mark Mitchell was holding a brown pit bull by a chain, and another man was holding the chain of a black pit bull while the brown dog was tearing into the other’s neck. The peace officers ordered them to separate the dogs, at which point Mitchell pulled the chain and the dog released its grip on the other dog’s neck—but not before chomping down on the black dog’s leg before Mitchell could pull it completely away. Both dogs were bloody and had several bite wounds on their faces and necks. Officers called Fort Worth Animal Control to seize the dogs.

Animal Control Officer Berry Alexander, who has participated in dog-fighting busts throughout the state, arrived on the scene within an hour. To his experienced eye, he knew the dogs’ injuries were consistent with fighting, and he seized them for medical treatment.1 He loaded them into the cage on the back of his truck and photographed both their injuries as well as the yard where the fight occurred.

Neither responding police officer had ever handled a dog-fighting case like this one; they had both answered calls but neither had arrived on the scene while the fight was still underway. After breaking up the fight and detaining all of the people at the home, they consulted a sergeant with how to proceed. The higher-ups instructed the officers to identify everyone and write them all Class C tickets, which ranged from “not having rabies vaccinations” to “failure to provide medical treatment for the animals,” plus other miscellaneous city ordinance violations. Not a single person, not even Mitchell, was arrested that night.

Naturally, once I was assigned the case, I wondered why the officers hadn’t arrested anyone. Not only did the officers themselves see the fight, but they had several civilian witnesses too. I could already hear the defense’s closing argument to the jury: “If these trained officers weren’t sure this was a dogfight, how can you find my client guilty beyond a reasonable doubt of dog-fighting?” I emailed the responding officers hoping for a reasonable explanation, and they replied that writing the Class C tickets was a mistake. They did indeed believe that the defendant was engaged in dog-fighting, but they wanted Detective Wade Walls, the main animal cruelty detective for Fort Worth Police Department, to review the case before making any arrests. I didn’t like that explanation, but at least it was honest.

I expected to see arrest warrants for more than just Mitchell—after all, the responding officers had identified everyone at the fight and taken their pictures. However, Detective Walls explained that when he received the case, he discovered that a couple people had given false names so he decided not to seek arrest warrants for anyone unless and until he could confirm their identities. To date, nothing has come of those cases.

A few days after the fight, Detective Walls attended the animal seizure hearing at the Fort Worth Municipal Court, hoping that the dog owners would appear to claim their animals—and Mark Mitchell did just that. During the hearing, Mitchell told the judge that the dogs started fighting on their own and he was trying to break them up. The judge didn’t buy it and denied his request to take back his pit bull. The City of Fort Worth maintained possession of both seized dogs.

After the hearing Mitchell agreed to meet with Detective Walls and to give a written statement, where he maintained that he was trying to break up, not instigate, the fight. Walls asked if he were willing to take a polygraph. Mitchell agreed but never showed up for the test. After obtaining written statements from Mr. and Mrs. Cortez (the neighbors who called 911) and one of the spectators at the dogfight, the detective obtained an arrest warrant for Mitchell.

At first, I was pretty sure this case was going to plead out: We had eyewitnesses and Mitchell had a 2nd-degree state jail enhancement. I offered him four years at TDCJ, figuring the defendant would not risk going to trial with those facts and his criminal history. Within a few days, though, defense counsel informed me that he would accept only misdemeanor time. There was no way I was going to sign off on that. I felt we had a pretty strong case, and Fort Worth Animal Control Officer Chris Berry informed me that the defendant’s pit bull had old scars, which indicated that it had been fought before, so we prepared for trial.

Jury selection

My trial partner, Robb Catalano, and I knew that jury selection would be especially important in this case. Because the defendant had prior felony convictions, probation was not an option. We knew most potential jurors would say they were opposed to dog-fighting, but we weren’t sure how people would feel about sending a man to the penitentiary for it.

Getting people to talk about dog-fighting was pretty easy. I started by asking the panel if they knew that dog-fighting was an offense for which a person could receive jail time. Several people said that they hadn’t known that until the Michael Vick case. (It was inevitable that someone was going to bring up the Vick case, so I used that opportunity to ask the panel how they felt about it. The defense did not object.) I wanted to identify and strike people who believed Vick should not have been sent to prison or even prosecuted. There were only a few such folks.

Next we talked about dog-racing and hunting—were they similar to fighting? The consensus was that none of that compared to dog-fighting. Most people on the panel felt that dog fighting was cruel and barbaric and should not be allowed, even if regulated. One person stated that because dogs are domesticated, they should receive more protections than other animals. Most people agreed.

Next we moved to the punishment range, which is where I requested the most challenges for cause. Some people on the panel felt that the state jail punishment range was too high for dog-fighting and, even if instructed and regardless of the facts, could not sentence anyone within that range. When I talked about the enhanced punishment range, I lost a few more people. One man said, “We’re talking about dogs. You can harm a human and get less time.” Needless to say he didn’t make it onto the jury. I asked for about eight people to be struck for cause on punishment alone. Thankfully we ended up with a good, dog-loving group. The foreman owned a pit bull, which he described as his best friend.

Defeating the defense theory

The most difficult part was proving that the dog fight was intentionally organized and disproving the defense’s theory that the dogs started fighting on their own. After all, pit bulls have a reputation for being vicious and dangerous, and it seems plausible that if two such dogs did start fighting, it would be difficult to break them up. The neighbor’s testimony, then, was going to be critical. Mr. Cortez testified that he heard the constant chants of “get him” and “kill him.” He equated the mood of the crowd to fans at a football game. He also testified that when he looked through the fence, he never saw the defendant struggling to pull the dogs apart. In fact, the only signs of distress he heard were coming from the dogs when they yelped in pain. This testimony was corroborated by what the responding officers saw and by the dogs’ injuries.

Animal Control Officers Chris Berry and Barry Alexander both testified that the dogs were not human aggressive, only animal aggressive. Officer Berry explained that people who fight dogs usually train them to be submissive to people so that whenever they need to separate the dogs, the animals would not the bite the owner or the person controlling the fight. Officer Berry testified that she could photograph, examine, and treat the dogs without any problems. We even had pictures of the officer with her hands around the dogs’ mouths to check their teeth. The fact that the animals were not aggressive towards any of the officers, coupled with the fact that the men were able to separate the dogs once police arrived, helped prove that the defendant had not been struggling to break up the fight as he claimed. In spite of the fact that the dogs were not human aggressive, they still had to be euthanized. They were not “adoptable” because they were taught to be aggressive and there was a likelihood that they would attack other animals or small children.

Another factor that helped to disprove the defense’s theory was the dogs’ injuries, which were concentrated on their faces and necks. Officer Berry acknowledged that dogs do get into random fights; however, she said that in those cases it’s common to see a few bites on the body, but once one of the dogs establishes dominance, the other dog flees. With forced dog-fighting, as we had in this case, injuries are concentrated on the face and neck because the dogs must face and attack each other in a confined space until the fight is stopped.

On cross examination, the defense highlighted that fact that the defendant expressed great concern for his dog after the fight, implying that a person who cares so much for his dog would not fight it. Officer Berry explained that in her experience, people who fight dogs often care about the dogs and invest money in them. She told the jury a story from her days as a veterinary technician of a man who would fight his dogs but then spend a lot of money getting their wounds stitched up. She had told me this same story during our meeting, but I didn’t expect the defense to let it in. The defense passed the witness shortly thereafter.

In the defense’s case in chief, counsel called the defendant’s son, Mark Mitchell, Jr., who is 25. He testified that on the night of the incident, Mitchell’s dog was being kept at their cousin’s house (the location of the fight) to separate it from another dog at their house that was pregnant. Mark Jr. was at the cousin’s house while Mitchell was at home. He then laid out a timeline for that night: Mitchell’s dog and another pit bull were in the backyard, and they started fighting. He said he and his cousin tried to separate the dogs but couldn’t. He then drove to his Mitchell’s house (about 15 minutes away) to pick him up so he could come and separate the dogs. This was around 10 p.m. When they got back to the cousin’s house, the dogs were still fighting. He was adamant that the defendant was only trying to separate the dogs when officers arrived after midnight.

On cross examination, Robb Catalano did not have to ask many questions. The goal was to highlight the inconsistencies with his timeline and save the rest for closing arguments. We also wanted to show that he had a clear motive to lie. When asked if it would have a negative impact on him if his father was convicted, he said it would. He said that his father had already been to prison and he didn’t want him to go back.

Verdict

The jury stayed out about an hour before returning a guilty verdict. During the punishment phase, the defense called Mitchell’s fiancée, Janis Philips. I later learned from the jury that she actually hurt him more than she helped. She testified that the defendant had changed and was now a “good person” and had a “good sense of humor,” in spite of his extensive criminal history. On cross-examination she could not explain how the defendant had changed. When I asked her about his work history, she stated that Mitchell had not been employed for at least five years. Jurors later said that this factored heavily in their decision on punishment.

During closing arguments, the defense explained that but for the defendant’s criminal history, the maximum punishment for dog fighting was two years, so that’s what she asked for. Defense counsel told the jury that Mark Mitchell was not Michael Vick and that they should not allow that case to influence them. When I gave my closing argument, I didn’t ask for a specific number; I told them that although this was not a 20-year case, because of the defendant’s criminal history and because we had not heard about anything positive that he had contributed to society, they should start at five years and work their way up. They deliberated just under an hour before they returned with the seven-year sentence.

The animal control officers were ecstatic about the verdict. They explained that they have a difficult time getting these cases to court because dog-fighting is such an underground activity. In most cases, they find only the results of the fight, like a dead dog in the alley with blood splatter on the wall and no one around to arrest. But it is still important that we continue to prosecute these cases. Jay Sabatucci, Texas State Director of the Humane Society of the United States (Central Regional Office), explained to me that dog-fighting is a symptom of a criminal lifestyle. He explained that in his experience, many dog-fighting busts lead to arrests for ancillary organized criminal activity such as weapons and narcotics trafficking. Thus, what starts out as a dog-fighting or animal cruelty investigation, may lead officers to more underground illegal activity.

Endnote

1 Tex. Health and Safety Code §821.022(a).