DOVER - A hearing will be held at Strafford County Superior Court this week to determine whether a young female accuser of a Lebanon man charged in her felonious sex assault can be accompanied by her service dog while testifying at his trial.
The prosecution and defense in the upcoming trial of David Shaw, 48, of 294 Lower Guinea Road, Lebanon, Maine, argued last month over the need and appropriateness to have the alleged victim, who was around the age of 8 at the time of the charged offenses, be allowed to have Daisy, her golden retriever, standing by her while on the stand in front of the jury.
Shaw was indicted in the sexual assaults in January 2017 and then again in November when they were slightly modified by the Strafford County Attorney's Office.
The newer indictments comprise first and repeat offenses with regard to fellatio, touching of her genitalia and touching of his genitals by the victim, all of which are alleged to have happened between Aug. 1, 2015, and Aug. 22, 2016, in Barrington.
The defense team, led by Attorney Sarah G. Landres, argued last month that having a dog accompany the young girl to the stand was "inherently prejudicial" to Shaw, and that a jury could easily infer her need for the dog "incriminated" the accused.
They also worried how the dog might react if the alleged victim became upset on the stand.
The prosecutor in the case, Assistant County Attorney Tim Sullivan, told the court if the girl cries, Daisy would "put her paw on her" for comfort.
The defense also made it clear it wasn't convinced Daisy was, in fact, a legit service animal as defined by law and objected to her being labeled a "service dog," adding it wasn't certified.
Sullivan insisted that the dog was a service dog and that its actions would give no weight to her testimony. Moreover, Strafford County Superior Court Judge Mark E. Howard said he would advise the jury not to consider the dog actions as evidence.
The defense countered that the optics are stacked against their client and that, "It looks like the dog is there to protect her from the defendant," and that it creates a natural empathy for the alleged victim.
The defense suggested that the dog be kept in a court anteroom and brought in on a temporary basis only if the girl became upset under questioning.
Thursday's hearing on whether Daisy is allowed in the courtroom is expected to feature a clinician who is treating the alleged victim for anxiety.
The upcoming hearing has caught the attention of Seacoast lawyers, including noted Seacoast defense lawyer Stuart Dedopoulos of Durham.
"I've never heard of a hearing like this in 40 years," he said recently. "It's an unusual situation."
Dedopoulos said the defense has every right to be concerned about the presence of a service dog by the side of an accuser in a sexual assault case no matter the age.
Asked if the defense has a case against the dog, Dedopoulos replied, "Absolutely. Under normal circumstances people take the stand to testify, and they don't have support people (or a dog) with them. The jury watches the witness and makes a decision on what to believe. So this is injecting something unusual in the case."
Dedopoulos said the concern by the defense is "how (the dog) would impact the jury."
While noting that there can be legitimate needs for a service dog, Dedopulos noted, "What does that law say in terms of having the animal there in every setting? And could it abridge the person's (defendant's) constitutional right to a fair trial?"
As far as a judge's instructions to the jury to give no weight to the dog's actions while sitting next to the alleged victim during testimony, Dedopoulos said the instructions could lose out to the optics.
"It's one thing to say to a jury don't let it affect you, but then, as an adult, you see something with the child (and the dog) and you are affected.
"And so the question then is, are you affected so that you can't be fair anymore, empathizing with the child and the animal?"
A final pretrial hearing in the case was held last week, so Thursday's hearing on the dog will likely be the last before jury selection in the case begins next week.