CHARLESTON, W.Va. — The case of Jasper the dog has wound its way to the state Supreme Court … again.
Following the latest round of briefs filings, justices must determine whether Jasper’s case — which has kicked around the court system for three years already — should be considered or whether the dog should be put down as a vicious animal, as courts have determined more than once.
Moreover, justices also are being asked whether the due process rights of Jasper’s owner were appropriately represented.
Jasper is a 23-pound whippet mix, and his case is complicated.
He has been on a doggie version of death row since a 2015 magistrate court ruling following his biting of a 4-year-old girl and an 8-year-old girl three times over several months.
Jasper’s case had multiple stops in magistrate court and circuit court and was once considered by the state Supreme Court.
The animal’s plight gained the attention of Gov. Jim Justice, a dog lover, last winter when supporters pleaded for him to pardon Jasper. The governor determined doing so was not within his power.
“The governor’s office has exhaustively looked into the legal proceedings related to Jasper the dog in Raleigh County, and the law of West Virginia is clear: it is not possible for Governor Justice to intervene,” Justice stated less than two weeks into his term.
“The governor recognizes that it is a painful situation for the families, the children, the dog, and the judges involved. No one loves animals more than Governor Justice.”
That left Jasper’s case as a matter for judicial review.
Jasper remains alive, and his team’s latest appeal is under consideration by the Supreme Court again. One of the lawyers on Jasper’s side is Roger Hanshaw, a state delegate and vice chairman of the House Judiciary Committee. Hanshaw’s legislative duties are separate from his advocacy for Jasper.
Hanshaw’s argument focuses on the constitutional rights of Jasper’s owner, Raleigh County resident Brenda Jeffrey.
Boiled down, the argument is that Jeffrey pleaded guilty to harboring a vicious animal in 2015 but then unconstitutionally sacrificed her right to due process when the court system began to determine, as another phase of her case, whether to put down Jasper.
“While she did plead guilty to the charge of harboring a vicious animal, Brenda Jeffrey fully expected to continue advocating for her property rights and the preservation of her property, her dog, Jasper,” Hanshaw wrote in a 40-page Supreme Court brief filed July 18.
MORE: Read the brief in support of Brenda Jeffrey and Jasper
Jasper’s attacks on the two girls reportedly were significant.
“The attacks were severe, culminating in the 8-year-old’s arm being so badly mangled that it required multiple plastic and reconstructive surgeries,” wrote Gordon Mowen, an assistant attorney general who filed a 28-page response brief on Sept. 28 on behalf of the State of West Virginia.
The legal case originated on Aug. 20, 2014, when a criminal complaint against Jeffrey was filed in magistrate court in Raleigh County. “Then confusion began,” wrote Hanshaw in the brief.
Jeffrey signed a Statement of Surrender, voluntarily giving up Jasper to the Humane Society of Raleigh County.
Jeffrey thought the document was for a 10-day hold, Hanshaw contends.
The lawyers for the state disagree sharply on that matter.
Their response notes that the statement says “I hereby surrender all of my interest in said animal to the Humane Society of Raleigh County,” and the state’s lawyers contend Jeffrey was aware the shelter could attempt to adopt the dog to someone else or euthanize it — although the Raleigh County shelter is no-kill.
MORE: Read the state’s response in the Jasper the dog case
On Jan. 28, 2015, a hearing in Raleigh Circuit Court was held to determine Jasper’s fate.
Jeffrey and her court-appointed attorney were there, “but the state objected to her continued participation and moved that her counsel be prohibited from putting on a case,” Hanshaw wrote.
The judge concurred with the state “and ordered that Brenda Jeffrey lacked standing to participate in her own criminal case.” The hearing continued with the state and the Raleigh County Humane Society as the remaining parties.
On Feb. 11, 2015, the circuit court entered an order granting the state’s motion to have Jasper put down.
Everyone agrees that Jeffrey pleaded guilty on March 13, 2015, to the misdemeanor offense of harboring a vicious animal and paid a fine.
Jasper has been held in semi-isolation at the shelter in Raleigh County ever since, awaiting his fate and growing on the shelter staff and volunteers.
Meanwhile, the case wound on.
The humane society, now one of the parties to the case, moved for a stay of the circuit court’s order. The circuit court remanded the case back to magistrate court, where it had originally been filed.
At a hearing on May 3, 2015, the Raleigh County magistrate found that Jasper is vicious and ordered him to be destroyed. Jeffrey testified as a witness rather than as part of her own criminal proceedings.
The humane society pursued a writ of prohibition, and the case bounced back to circuit court. There, on Feb. 23, 2016,the judge determined that the humane society lacked standing to bring an appeal.
The humane society then appealed to the Supreme Court, contesting the lower court’s ruling that it lacked standing.
That was the first time justices considered Jasper.
The Supreme Court issued a 3-page memorandum decision this past Jan. 6, saying the shelter’s brief was inadequate and affirming the circuit court’s ruling.
Jasper was minutes away from a deadline to be put down this past Feb. 3 when a fax came through to the shelter, saying there had been yet another stay in the case.
This one was in response to the latest line of appeal. Jeffrey wanted to assert her rights as Jasper’s owner and, through her lawyers, said she hadn’t had the opportunity.
“In all the above-described proceedings, the criminal defendant in this case, Brenda Jeffrey, has yet to be afforded an opportunity to appear at a fair and proper hearing in her own criminal case to defend her property interest, her dog, Jasper,” Hanshaw wrote.
His brief claims Jeffrey was denied her Fifth and Fourteenth Amendment rights of due process under the United States Constitution, as well as her right to due process under the U.S. Constitution.
MORE: Read the reply brief in Jasper’s case
As a criminal defendant, Hanshaw wrote, Jeffrey was entitled to the assistance of counsel at all critical stages of her criminal proceedings.
“Unfortunately, Brenda Jeffrey’s guilty plea was not the end of the process,” he wrote. “The second phase, akin to the penalty phase in a usual criminal proceeding, was the determination of what, if anything, was to be done with Brenda Jeffrey’s personal property, her dog.”
Jeffrey received no notice of many of the proceedings as the case went on, Hanshaw wrote. Sometimes she appeared as a witness under subpoena but was not represented by her own counsel. At least once she went to a hearing because she’d seen it mentioned on social media.
“Here, after nearly three years, Brenda Jeffrey still has not been afforded the opportunity to appear before a judicial officer as a party in her own criminal case and present her case before having a judgment entered against her permanently depriving her of her property.
“Such a fundamental failure of justice cannot be allowed to stand in a nation that values due process of law.”
Lawyers for the state disagree that the case amounts to that.
“Petitioner’s contention that she has suffered various constitutional violations (she claims violations of the rights secured by due process, the 5th, 6th, and 14th Amendments, as well as her corollary state constitutional rights) is baseless,” wrote Mowen on behalf of the state.
By signing the statement turning over Jasper to the shelter and then by pleading guilty to harboring a vicious animal, Jeffrey essentially elected to become a bystander, Mowen wrote.
He wrote that the original hearing about Jasper did not concern criminal charges against Jeffrey “but instead simply required the magistrate to determine whether there was ‘satisfactory evidence’ to establish that the dog was vicious and should be put down.
“Petitioner was not entitled to a jury trial, counsel or any of the litany of other rights afforded to criminal defendants during criminal proceedings.”
The state also contends it doesn’t make sense for Jeffrey to have pleaded guilty to harboring a vicious animal while later defending her right to claim Jasper isn’t vicious.
“Finally, as the State proffered during the proceedings below, it makes little sense that Petitioner would plead guilty to harboring a vicious animal and then, in the second phase, argue that the animal was not vicious,” Mowen wrote.
“As both a practical and legal matter, she should be stopped from claiming the dog is not vicious when she admitted, by virtue of her guilty plea, that it is vicious.”
The lawyers for the state wrote that they don’t believe oral arguments are necessary and suggest a memorandum decision is appropriate.
Jeffrey’s lawyers want the Supreme Court to remand the case with instructions to hold a new hearing to determine whether Jasper lives or dies.