Great Dane owner seeks jury trial in appeal of cruelty conviction

By DAYMOND STEER, The Conway Daily Sun
 

CONWAY – A Carroll County Superior Court judge has told the prosecution in the animal cruelty case of Christina Fay it has 20 days to better define five of 10 charges against Fay. She also denied the defense's motion to dismiss.

Fay, 59, is seeking a jury trial in Carroll County Superior Court as an appeal of her conviction in circuit court late last year on 10 counts of animal cruelty for her treatment of 75 Great Danes.

For now, jury selection on her new trial is scheduled for Feb. 26 but it may be delayed.

Last December, Circuit Judge Charles Greenhalgh found Fay, then of Wolfeboro, guilty on the 10 counts in a 20-page order.

Greenhalgh found that dogs were living in squalid conditions that were rife with feces and urine and also that the animals suffered from untreated ailments and were sometimes left without adequate water.

Though the bench trial began Oct. 16 and ran six days through Nov. 14, the case actually started last June, when local police and HSUS personnel seized 75 Great Danes from Fay’s home in Wolfeboro and nine more from a Bartlett location. The Conway Area Humane Society received another nine Great Danes prior to the seizure.

Greenhalgh gave Fay a one-year suspended jail sentence and ordered her to pay the entire amount that the prosecution had asked for, over three-quarters of a million dollars. The HSUS has sought $770,000; the town of Wolfeboro, about $16,300; and the Pope Memorial SPCA of Concord Merrimack County, about $1,500.

However, the sentence has been stayed because of Fay's appeal to the Superior Court, where the case starts all over again.

At the end of last month, the prosecution and defense argued over various motions. Defense attorney Kent Barker of Winer and Bennett in Nashua discussed each of the 10 charges, describing many as incomplete.

He said some charges said "many" dogs had one condition or another but failed to identify which dogs in particular had the condition and how many.

He said other charges simply said dogs had a condition like Papilloma virus without saying how Fay's behavior led to it or how she failed to treat it. Barker said that would be like charging a mother for neglect because her child had a cold.

Prosecuting attorney Simon Brown replied that the charges were properly formed and that the charges are supported by evidence provided in discovery.

"They are not in the dark as to which dogs were diagnosed with which medical issues," said Brown.

Judge Amy Ignatius settled the issue with an order issued Feb. 7. She said five charges that name specific dogs pass muster but those that describe dogs in general do not. She said the general complaints say there are more than 70 dogs on Fay's property.

"However, instead of stating how many dogs out of the more than 70 were affected by the negligent deprivation of necessary care or sustenance, the complaints use ambiguous terms such as many or the majority to describe the number of dogs that were affected by such conditions," wrote Ignatius. "Using such vague and ambiguous terms leads to speculation, as "many" and the the "majority" mean different things to different people and are not defined in such a way that leads to a definitive quantity or identification of the dogs at issue."

The judge wrote that the dismissal of the charges isn't warranted. She gave the State 20 days to "provide a bill of particulars" identifying the dogs each of the general complaint apply to.

Ignatius also rejected the defense team's motions to dismiss citing "due process and fair trial grounds."

Fay's team argued that the search and seizure executed by by the police and the HSUS "shocks the conscience" and therefore violated her rights, but Ignatius found that the search was conducted properly.

Fay's attorney's also argued that the police didn't provide notice that HSUS was going to assist in the search and that that HSUS used photos from the search warrant execution for fund raising and thus causes Fay to be tried in the court of public opinion. However Ignatius said the defense "fails" to show how the photos violated her rights and how the media attention and HSUS postings are "so egregious as to warrant the extreme action of dismissal."

Finally, Fay's team argues that the publicity surrounding her case has been so widespread that it threatens her right to a fair trial. That included the state and HSUS labeling her home a "puppy mill."

Meanwhile, the state argued that there's no evidence the jury pool has been tainted because and that an impartial  jury can't be impaneled.

Ignatius decided that the term "puppy mill" wasn't so strong that the case needed to be dismissed and that it was too early to say that a good jury can't be found.

"There is no evidence that anything the State or the HSUS disseminated to the public has tainted the jury pool," wrote Ignatius in her order.