MS. LAMP: If I may, I was gong to ask the court if the court could address the forfeiture issue first because that has to be while the court still has jurisdiction and if anything changes—-

THE COURT: No, no, I understand. Yeah, no. No, let me say something. We’re going to have some statements made by some attorneys here. No noise. I’m the only one that can make the noise while they’re talking. And you gentlemen can talk obviously among yourselves. The court officer’s got extra handcuffs, that includes you guys, and I won’t hesitate to use it. Do you understand? And don’t get up and start walking in and out because I’m not going to allow that either. We’re going to behave ourselves. Mr. Henderson and Mr. Mercier, you talk to these two gentlemen only. Do you understand that? Officers, you talk to Miss Lamp only. Do you understand that? All right. Miss Lamp?

MS. LAMP: Your Honor, I was going to address the argument in favor of forfeiting the horses.

THE COURT: Okay.

MS. LAMP: To begin with. As MCL 750.50 states, that an owner, possessor or person having the charge or custody of an animal shall not do any of the following: fail to provide an animal with adequate care. And as the statute defines adequate care, it says that means provision of sufficient food, water, shelter, sanitary conditions, exercise and veterinary medical attention in order to maintain an animal in the state of good health. Your Honor, we have had testimony to support the fact that in this particular case there were sixty-nine horses at the Turn Three Ranch in Jackson County and that there was inadequate water, inadequate food and inadequate shelter and certainly unsanitary conditions. The court has heard a voluminous amount of testimony.

The adequate shelter, addressing that first. The court has seen exhibits showing the ramshackle condition of the shelters as noted in the photographs, and the testimony was that there was not enough shelter for all sixty-nine horses. Dr. Denise Altemose testified that it was inadequate for the size of the herd. She noted that one shelter in the pasture actually had the roof down, I believe the court has seen the photographs of that, and also that the three mares in the pen, the three emaciated mares including the grulla mare, that there was inadequate shelter for them all in that, even in that small pen. We had testimony from Dr. Vicki Chickering indicating that the standard of care for shelter from the generally accepted animal management practices that’s put out by the Department of Agriculture requires that animals have shelter to protect from rain, wind and weather, all animals need to have access to shelter at any given time. She indicated that this was inadequate. Additionally she said that while a tree line sometimes can be considered sufficient to count as shelter, that in this case on the west side of the property there was not a significant enough tree line to provide part of the shelter. So that was not even considered part of adequate shelter on that, as Mr. Henderson tried to maintain.

As to the issue of the insufficient water. There was testimony again by Dr. Altemose, testified that the water was inadequate, that she observed one tank with a thin layer of ice on it and another tank that had broken pieces of ice in it, and that she found other tanks on the property that were empty but she said she didn’t know whether those were food tanks or water tanks because nothing was in them. Dr. Chickering testified that there was water available in the barn, however, even in the barn in the pen with all the little horses, the weanlings and the yearlings, that she was concerned that the tank in there was a little too deep for those small horses to be able to reach it when it got to the low point. On the lot she said she observed one tank further back on the property through a gate and that it was a little harder to access in that the horses in order to access that particular water tank, would have to go over a less desirable topography, as she testified that it was frozen rough ground and it would be hard for the horses to navigate that, in addition they would have to go through a gate to get to it. So it was essentially like a mini obstacle course. She also testified that the stream was obviously the water source that was being used by the horses and that she did not know the quality of that stream, stream or water ditch, I’m not sure which it is. We do know that it feeds into a body of water, but she did not know the quality of the water. She also testified that she had concerns about the horses accessing the water in the stream area and that there were fence posts that were bent and broken and that there was wire in that area and that it was slippery and a steep slope to get into there, so that it, she saw it also as a risk of danger to the horses to use this particular thing just in terms of access to the water source. We did have Rachel Matthews who was the environmental quality analyst from the Department of Environment Quality. She testified that she was there a day after Altemose and Dr. Chickering on March twenty-first and that she ran tests and found that there was E coli contamination of the water where the horses were drinking from and accessing the body of water. As I recall, she testified that the maximum level of E coli that is allowed is at a number of one thirty and that the two samples that she tested came in at the rate of six fifty and six seventy, well above the acceptable standard of E coli, and she indicated she certainly wouldn’t be allowing her horses to drink from E coli infested water, infected to that level.

As to the issue of food that was available for the horses. Dr. Altemose testified that it was inadequate for the amount of horses that were there. Dr. Chickering testified that there was not enough food quantity in storage or in the pastures for the number of horses. She also testified that based upon her observations at the farm that the horses were obviously hungry, as they were picking at the ground and even at the poor quality hay that she testified that was out on the pasture, that being the hay that was moldy, containing a large amount of oak leaves and was very stemmy, that they were even picking at that hay and looking for food, and she felt that it was inadequate at the time that she was there.

She also testified about the safety issues of the bale strings on the pasture, and she said in her testimony that, that the safety issues would require you to remove the bale strings because of the fact that it, horses sometimes ingest them and it causes, poses a risk of safety for the horses in terms of an intestinal problem as a result of ingesting the bindings and or the possibility of those bindings getting wrapped around the feet and causing injury to the horses.

Then of course the conditions of the farm. There was a numerous amount of testimony as to the conditions overall. I mean, the, as the case started out on 3-13-07, Deputy DeLand had arrived at the horse farm as a result of receiving a dispatch that there were horses in the roadway. When he arrived the horses had been put back in. He observed the area of the farm, he had been there I guess as I understand it at least five times previously. The fencing was inadequate, and as a result, on either the thirteenth of March or the fourteenth, he had made the referral to Officer Wheaton. Officer Wheaton who was the first person on the farm made the following observations when she arrived on the fourteenth as to the condition of the farm. She observed the poor fencing consistent with what Deputy DeLand saw and testified to. She saw a dead horse in the mud with a tow strap attached to it. That was one of the first things she saw after observing the fencing as she walked on to the property. She went into the barn and saw eight horses in a pen that was in her opinion too small for the horses, and standing feces and urine, four to five inches. She testified that there was no dry spots, there was no food or water in there, the barn at that time, and that there were boards with nails sticking up where the horses were standing. That would obviously go to unsanitary conditions as she first observed it there on the fourteenth. Dr. Altemose testified that when she was there on three twenty, that the overall condition of the farm was a poor condition and that there were dangerous objects in the pasture. Dr. Vicki Chickering also testified that when she was there on three twenty, that the safety issues that she, that was the first thing that struck her was the safety issues, the large number of horses in the area, the fences down, the boards with nails sticking out them, the sheet metal and the falling down buildings. All of those came to her immediate attention. She also testified as to the body condition of the horses that she observed when she was there on the twentieth, that being the three emaciated horses, the grulla mare and the two additional mares that were in the separate paddock area together. She testified that the barn horses as she observed them, and again, Dr. Vicki Chickering was from the Department of Agriculture and her assessment of the body score condition of the horses was a visual one, not a physical examination of the horses. She testified that the barn horses were very thin to thin, they were in the two to threes, and some of the field horses were also very thin. Overall some of the horses were emaciated, some were two to three and some were thin to moderate and some were in normal body condition. Dr. Chickering also testified that in order for the farm to have come to be in this condition, looking at the horses in the barn in particular, that it had taken months to get to this point and that it had been a fairly longstanding problem. I believe that was also the testimony of several witnesses as to the condition, the general condition of the farm and all of the objects that were found on it. Officer Wheaton also testified that on March sixteenth, the, I believe it was the second time she went to the farm to meet with Matthew Mercier and Dr. Sray, that the horse with the wire in it, Matthew Mercier told her it was five days old. Of course, as the court will recall, I believe he said it was older when he testified on the stand. He said that the horses in the pen had been there for only five days, and Mr. Mercier told her that the three emaciated old horses were the ones in a separate paddock including the grulla mare were old and that it had been a tough winter by way of explanation as to the condition of those horses. The grulla mare in particular Mr. Mercier told Officer Wheaton that if he dropped the ball on any of the horses, it was the grulla mare, that she gas colicked back in December and had lost a little weight.

Now, Your Honor, I’m going to proceed on from my arguments as far as the forfeiture if the court would prefer that I do, on to the three cases, counts that I’ve charged torture on as well. If the court would prefer me to do that at this time.

THE COURT: Are you all set on your forfeiture argument then?

MS. LAMP: Yes, yes, I am.

THE COURT: Fine. Sure.

MS. LAMP: So shall I move forward?

THE COURT: Yes.

MS. LAMP: Okay. The argument as to the bind over on the other counts, Your Honor, and you know, of course that feeds into the forfeiture, but primarily I want to, prior to moving into that argument I want to make a motion to amend the dates on the complaint from three fourteen ’07, to three twenty of ’07, to the dates of January first of 2007 through March twentieth of 2007.

THE COURT: Go ahead with your argument.

MS. LAMP: Okay. I would also make a motion to amend the description in count one from yearling filly to bay filly as was indicated by the testimony.

And as far as my argument in favor of bind over, Your Honor, I would specifically exclude any of the statements and testimony of Mr. Mercier and Mr. Henderson that was heard for the purpose of the forfeiture, as that’s obviously excluded from statute for consideration in a criminal case.

THE COURT: Why? They testified, were represented by--

MS. LAMP: Because of their constitutional rights, Your Honor, I believe that’s why the statute specifically excludes it.

THE COURT: Okay. I thought a defendant could testify any time he wanted to.

MS. LAMP: They can, Your Honor, but in terms of the forfeiture, on the statute itself it indicates that they can testify in the forfeiture hearing without having that be used against them in the criminal.

THE COURT: Oh, okay. I thought you were talking about the…

MS. LAMP: That’s what I’m talking about, Your Honor.

THE COURT: Okay.

MS. LAMP: I just want to make it clear that I’m not talking about any of their testimony pertaining to the criminal matter.

THE COURT: Okay, yeah, no, I got, understood that.

MS. LAMP: The three counts that are charged are count one, inflicting torture on the horse described as a bay filly, that being the horse with the wire injury. Count two is inflicting torture on the horse described as the grulla mare, that being the horse that was severely emaciated, and count three, excuse me, Your Honor, that being the infliction of torture on the paint yearling, that being the horse referred to by Animal Control as Lucky Seven and by Mr. Mercier and Mr. Henderson as Elvis, with the leg injury. And by way of, you know, my request to bind over obviously, I would ask that the misdemeanor count as articulated in count four accompany counts one, two and three to circuit court in both Mr. Henderson and Mr. Mercier’s case.

The court has heard again obviously a lot of testimony in this matter. In pertaining to the, in pertaining to count one, that being the bay yearling with the wire injury, the court has heard the testimony of Dr. Hammer. Dr. Hammer testified that, that a person who knew there was wire and did nothing about it for three weeks or more as testified to by Mr. Mercier, that this would be extremely painful for the horse and that he testified that in his expert opinion this would rise to the level of torture. And as I recall, the court defined torture as the infliction of severe physical or mental pain and the dictionary definition of that is agony of body or mind. I believe those are consistent definitions. He testified that it was painful enough in fact that the horse could not bear weight on the leg.

Dr. Hammer also testified about the grulla mare, that being count two. He testified that he had observed the grulla mare and that she was severely emaciated to the point that you could see all of the bones in her body, no fat whatsoever, and he said that based upon his examination of her there were no health issues to explain her condition. He testified that in his expert opinion that the emaciated condition of the grulla mare would also rise to the level of torture, that she should have been suffering, she would have been suffering from that in that condition, it would have caused her to suffer, that she was approximately four hundred to four hundred and fifteen pounds underweight and in his expert opinion it took approximately five to six months without adequate food and water for her to arrive at the condition she was at the time that he observed her. Now, Dr. Hammer also specifically said in his testimony in determining whether there was abuse in this situation, that there was no way that it had occurred overnight, that it had been a long standing problem at the ranch, and that if you were to rule out stupidity, and as I understood his testimony people who know nothing about horses, which is clearly not the case for Mr. Mercier and Mr. Henderson based upon the testimony of all of their witnesses, their friends who came to the stand and said how they live and breathe horses, so if we rule out the stupidity according to Dr. Hammer, and that it had occurred over a period of time and as he testified it was something that occurred over a period of months, that it was definitely abuse overall at the farm.

Then as to count three, the torture count on the paint yearling, that being referred to as Seven or Elvis. The court has heard the testimony of Dr. Hammer who examined the horse and found it, Seven to be severely lame on the right rear leg, very sore on the hip, almost to the point of refusing to move. He also testified that the condition of Elvis or Seven was a longstanding condition that needed radiographs, that the horse was emaciated and that the ultimate condition of the horse was bone to bone on the hip joint. He based that bone to bone analysis upon the pathology report that was completed by Dr. Williams who was called by the defense. Dr. Marteniuk is the doctor who ultimately treated Elvis and Seven at Michigan State. She is the one who also testified, she testified that this horse was in poor body condition, that the lice infestation on this particular horse was so severe she described it as one of the worst cases she had ever seen, and in fact took photographs of the lice to use it as a teaching tool in her classes. She said that this horse was extremely reluctant to move, due to being very painful on the hind end. She testified that it was a severe arthritic condition and extremely painful in any species, including horses; that it was bone on bone and a longstanding condition. She also testified that the symptoms that would have been apparent is that the horse would have been lame or reluctant to move. Beginning perhaps with an abnormal gait and going to the point where it was reluctant to even put its leg down on it, as it was at the time that she observed it. And Dr. Marteniuk in her expert opinion testified that this animal suffered torture. Dr. Hammer who was also, made some other observations of the farm when he was there on three twenty-seven. His initial observations is that there was nothing suitable for horses there, that it was just a lot of junk and debris.

Again, going to the unsanitary conditions on the farm. Dr. Hammer had also testified about the horse with the wire injury as indicated in the torture count, count one, that it had been at least three weeks and probably longer that the wound had actually healed around the wire and that would have taken a period of time. Overall he said there were too many horses for the lot. He testified that two thirds were on the thin side, obviously not getting enough nourishment. The injury on the horse, on count one, that being the horse with the wire injury, Dr. Hammer testified that the injury would have been apparent from the size of the leg. And I don’t think there was any denial of that. Mr. Mercier acknowledged initially that there has been a wire injury to Officer Wheaton. Dr. Sray testified that an injury like this could be treated for a day or two before getting veterinary care, and I believe Mr. Mercier’s testimony was that he treated the horse for nine to ten days in his testimony and before seeking any care, and at the time that Mr. Mercier sought care it was after Animal Control had become involved in the situation.

The testimony indicated that the age of the grulla mare was four to five years old and therefore Mr. Mercier’s initial statement that was made to Officer Wheaton at the time that she was investigating the crime was that, they, all three of them were old horses; while the other two mares were old horses, in fact the grulla mare was a young horse. Dr. Williams also testified to the very thin body conditions, how the pelvic bones were prevalent through the skin at the time of the performance of the necropsy after the paint yearling in count three had been euthanized. Dr. Williams testified that in his opinion the lameness of this horse would have been absolutely evident. Matthew Mercier testified that he had seen it just like the day before Animal Control had come on to the scene.

Mr. Henderson, as the testimony would have indicated excluding both Mr. Mercier and Mr. Henderson’s testimony, several of the friends of both of them testified that Mr. Henderson had not been on the farm in 2007, in fact was rarely ever on the farm. On just a couple of noted occasions in 2006. However, the testimony that has been presented is that Joel Mead saw Jim Henderson on the ranch after 1-22 of 2007, and in fact talked to him. Joel Mead testified that he had driven by the farm a number of times and he in fact knew Jim and Matt for a number of years and that he had driven by several times between January and March twentieth of 2007, including a few times where both of the vehicles were there. Of particular noteworthiness is the fact that he actually had a conversation with Mr. Henderson at the farm about the, the car that he was interested in, in January, between January twenty-second and the end of the year. And he testified that he remembered that that was the date of it because that was his daughter’s birthday, 1-22-07, and he knew that it was in January and it was after the birth of his daughter. David Pierce who lives across the street on Maute Road testified that he saw James Henderson and when he said that he saw James Henderson, it wasn’t just the vehicle that was driving by, but he actually knows Mr. Henderson and he saw him in the vehicle driving by on Maute Road approximately two to four times. He didn’t remember exactly the number of times, but it was between January and March twentieth of 2007. Brigitte Gozowsky who also knows Matt and Jim for a period of time testified that she saw them both at the ranch multiple times between January and March twentieth of 2007, and that Mr. Mercier was there probably double the times of Mr. Henderson. But I, I believe it was like two to four times, I don’t remember. We don’t have the transcript for that portion of it, but it was in that ballpark, so she certainly places him on the farm in that period of time. And Bradley Chaltry who was called by the defense counsel from the Ponies Are Use organization testified that he called Mr. Henderson on 3-21 of ’07 after he had gone home and I guess got on the internet to find the phone number, was able to contact Mr. Henderson and he asked him about the three horses that were being charged, that we were anticipating charging with torture. I, at that time, Your Honor, we were actually charging them with neglect. But they were three of the worst horses on the farm. And he had asked Mr. Henderson to explain the conditions of these horses. And as Mr. Chaltry testified, Mr. Henderson was fully aware of the condition of three of these horses and was able to discuss that matter with him on the telephone. So, Your Honor, I think that for the burden of proof being probable cause that a crime was committed by both defendants in this matter and that it was of a nature of a felony crime, that there has been sufficient evidence I would argue to the court to bind over as to both Mr. Mercier and Mr. Henderson on all three counts of torture on the bay yearling as amended, the grulla mare, and the paint yearling and also again that count four accompany those to circuit court. Thank you.

THE COURT: Okay. Will you do the statement, Mr. Dungan?

MR. DUNGAN: Yes, Your Honor.

THE COURT: Do you mind if I do a couple arraignments?

MR. DUNGAN: No, that’s fine.

THE COURT: We’ll recess ten minutes on this.

(At 9:08 a.m. recess)

(At 9:21 a.m. proceedings reconvened; court,

parties present)

THE COURT: Mike, do you want to start without him?
MR. DUNGAN: Yeah, I may as well.

THE COURT: Okay.

MR. DUNGAN: Because, Your Honor, really one of the first comments that I was going to make is I do want the court to consider my comments not just as to the civil forfeiture but as to the criminal case as well.

THE COURT: Yes, absolutely, absolutely.

MR. DUNGAN: And Mr. Hurst may have some additional comments he wants to make when he returns.

THE COURT: Okay. Mr. Dungan?
MR. DUNGAN: Your Honor, we began this case with what I’m going to describe as some exaggerated allegations involving what was really a pretty dramatic description of a horse lying dead in the driveway, dead from unknown causes, an abandoned farm with sixty-nine starving horses. No food and water to be found anywhere, no sign of any caretakers. There was something about this case that caught fire real fast and once it got started it appeared that there was nothing that was going to stop it, certainly not an exercise of common sense and certainly not the truth when that began to come out. One of the problems in this case really is the failure on the part of Animal Control to use simple common sense, and the fact that they turned a deaf ear to the truth or anything that they learned that did not happen to support their initial impressions about this, all of which turned out to be wrong.

Dr. Sray the Animal Control vet who has been called out on Animal Control abuse cases for the last twenty-nine years tells Animal Control this is not an abuse situation, this is not a seizure situation. Obviously that was not what Animal Control wanted to hear. So the next step that they take is to lie in a search warrant and say, well, Dr. Sray has known Matt Mercier since he was a little kid, he can’t be objective, we need an independent vet to take a look at these horses. So that search warrant leads to the two vets that came down for the Department of Agriculture, Doctors Chickering and Altemose. While those two doctors obviously had some criticism of the farm and some of the horses as they testified to, one of the more important things that they also testified to was that fifty-six of the sixty-nine horses that they examined on that farm had a body condition score of four or five. And we learned from them and the Henneke scale that was admitted as an exhibit that fifty-six out of these sixty-nine horses were in ideal condition or within a single body score level of an ideal condition. Now, what should have happened at that point at the worst is that Matt and Jim should have got fifty-six out of sixty-nine horses returned to them at that point in time. Animal Control then brings out to the farm their first choice horse rescue people who agreed with the assessment of Dr. Sray. Brad Chaltry testified this is not an abuse situation, this is not a seizure situation, and in fact he testified this was the only time he had ever been called out on an animal rescue where he refused to take the animals for the reason that there was simply no need. So after they bring out Dr. Sray and the Department of Ag vets and the Chaltrys, they then bring in Leelanau Horse Rescue and later Dr. Hammer.

Dr. Hammer, I’m not quite sure what to make out of what he testified to. According to his testimony he comes out to the farm on March twenty-seventh when Animal Control has been in charge of the farm for a period of eight days. His testimony is that eleven weanlings and yearlings are severely emaciated and that seventy percent of the rest of the herd is underweight. So we’re talking about virtually every horse on the farm. This is completely contrary to what I was just talking about with the Department of Agriculture vets who had, if you run it on a calculator, fifty-six out of sixty-nine of the horses, that’s eighty percent of the herd was in ideal or near ideal condition as far as the body condition score. And that’s only eight days later that Hammer’s out there after the Department of Ag. So I don’t know what happened in that eight days, but either Animal Control is not feeding them properly before Dr. Hammer comes out, or Dr. Hammer simply is being disingenuous about his findings after he examined those horses. I mean, the point is, and you know, Judge, from being experienced in litigation, if you look around hard enough and long enough, you can find somebody to come into court and give the opinion that you’re looking for. But the fact remains, Animal Control’s first choice vet, their own vet, and their first choice horse rescue people told Animal Control, not a seizure situation, leave these people alone.

There’s been a lot of emotion in this case, Your Honor, and you’ve commented on that a couple of times yourself. And I think what’s needed at this point now that we’re wrapping things up is to look at this case with what I’m going to call a rational perspective. The issue in this case is not whether the horses were cared for in a manner that satisfies the personal standards of Animal Control or Leelanau Horse Rescue, the issue is whether these horses were cared for at the level that’s required by the statute. Michigan law requires adequate care. That’s what the statute says. Not Elizabeth Taylor and National Velvet care. Horses are not domestic pets, although some people certainly choose to treat them that way, that’s fine, but Michigan law defines horses as livestock. Horses are lumped into the exact same category as cattle, pigs and chickens. The farm that we’re dealing with, obviously not an upscale facility designed for show horses. We don’t pretend that’s what it is, that’s not what it was designed to be and, more importantly, Michigan law does not require such a facility. This was a garden variety small town horse farm. The horses that we’re talking about are not pampered show horses. They are barrel racing horses, brood mares, breeding horses, they’re farm horses and horses that were wintered outside in Michigan. Looking back on this case I kind of see where we got where we’re at at this point in time, because there were several problems that really got this case blown out of proportion and made into something that it never should have been.

One of the first problems that I think is clear is that the investigation in this matter was essentially done backwards. Animal Control’s MO on this case was seize the farm first, let’s try to justify it later. And we try to justify it later with our own people, and that doesn’t work, let’s find some people who will support what it is we want them to say. Some of the other problems I think that happens to get this case where it is right now is that the people who went to the farm and looked at the horses made a number of assumptions that were based on just what they saw during that short window of time when they happened on the farm. You know, the problem was no one that was involved in this investigation ever really tried to get, you know, the Paul Harvey, what’s the other side of the storey. No one talked to Jim or Matt in any detail about Matt’s routine for feeding and watering or these issues, the various health or weight issues that were involved with the horses that were located in the barn. People go out there, they see what they see. They don’t know the history of it, they don’t know what the routine of it is, and they just choose to assume the worst, and simply because they fail to ask the right people the appropriate questions.

Now, as to some of the allegations. I want to talk about those and then of course I’m not going to do everybody’s testimony, but some of the important points that we heard. The allegation starts out when we begin this case essentially that no one’s coming out to the farm to care for the horses. They had Pat Davis testify she only sees people out at the farm three times through, once near Thanksgiving, once in early December and then again I believe within the first ten days of February. Now, her assumption and of course the suggestion that the prosecution was making to you is that no one is caring for those horses over this Michigan winter except for the three times that Pat Davis saw him. And as the case proceeds, Your Honor, it turns out she was wrong and if they wanted to know who was caring for the horses and how often, again, all they had to do was ask Matt. All they had to do was ask Jim. You heard Matt’s testimony to his regular winter routine of going out to the farm twice a day, every day. Matt was living with Billie Jo Cockroft at the time. She confirmed his schedule, she knew his comings and goings and confirmed that for the court. Pat Davis also admitted she can’t see the Maute Road exit to that farm from where she, from where her house sits and as Matt testified of course that’s the one that he used on a regular basis. We know that that, that somebody was coming out there to care for those horses on a regular basis, again because of the testimony of the two vets from the Department of Ag who again tell us fifty-six out of sixty-nine horses got a BCS of four or five. Now, some of things that support that, that we learned from the vets and the other people who I guess were just referred to as horse people, testified how quickly horses lose weight, particularly in the winter time, as opposed to how much longer it takes for them to try to gain weight back. Now a simple application of common sense tells us that if that farm had been abandoned to the extent suggested by Animal Control or Pat Davis, Animal Control would have went out there on March fourteenth and found seventy dead horses, not one dead horse. It’s simply not possible based on all of the expert testimony and all of the testimony of the people who are experienced with horses to have fifty-six out of sixty-nine with a BCS of four or five following on the heels of a tough Michigan winter that was just in the process of coming to an end.

The other fairly similar allegation to that is the allegation that these horses were not provided with sufficient food, water and shelter, again, another allegation that I suggest to the court was proven false based on some of the same comments that I’ve already made. Matt testified to his regular winter routine for providing food and water. Again, that was confirmed by the family that he was living with. You heard additional testimony from Perry Haag and Art Feldkamp about how often Matt was out to both of their farms to pick up hay. He wasn’t, Matt wasn’t doing that because he was bored in the winter time and didn’t have anything better to do. Obviously that hay was going out to the farm to be used for those horses. Some of the, I believe it was the Department of Ag vets made some comments relative to in that brief window of time that they go out to the farm there’s not sufficient food here, we looked around, there’s not enough hay to get them through for the next couple months. Well, that’s not the routine that Matt was doing and Matt testified why, how he broke his leg in the summer time, he wasn’t able to get up that winter store as he usually was able to do in the past, and that’s why he had to go see Perry and Art on such a regular basis. And again, I don’t know how the prosecution can say on one hand they weren’t provided with sufficient food, water and shelter, but yet their own witnesses from the Department of Ag again say fifty-six out of sixty-nine are in ideal or near ideal condition. Dr. Sray himself testified I guess to what’s considered the obvious, that it would not be possible to have fifty-six out of sixty-nine horses with a BCS of four or five if those horses had not been provided with sufficient food, water and shelter throughout the Michigan winter. Now, as far as some of the other horses that were considered underweight. All of the vets and the horse people agree that about, somewhere between eleven to thirteen horses on the farm were underweight, had some issues with their body condition score. And the horses that we were referring to were the ones I called the two old ladies which was Dee and Easy, and then the grulla we talked about, the subject of the felony count that we referred to as Moose. And there was also testimony some additional horses, some weanlings and yearlings numbering somewhere between eight and ten, also had some issues with their weight. We don’t contest that, Your Honor. Even when Matt and Jim testified, they agreed and they told you, yes, those horses were underweight. The issue for the court is not that they were underweight, it’s why were they underweight. And as we learned from the testimony of the experts and the vets, the fact that there are underweight horses on a farm, particularly one with sixty-nine horses, does not automatically lead to a finding of torture and or a failure to provide adequate care. I asked Dr. Sray quite a few questions, tell me about wintering horses in Michigan, is it okay, does everybody do it. We got a good description of that. What we found out was that it’s very common for horses to lose weight during the winter. Some of the testimony was, you know, we try to fatten them up a little bit because we know it’s going to happen, it’s colder, they burn more calories, they don’t move around as much, and it’s life on a horse farm in the winter, they’re going to lose some weight. The vets testified that a caretaker of horses can do everything right, not just provide adequate care, but do everything right and still have underweight horses. And you heard a variety of factors that can lead to that. First, that horses lose weight very quickly, and a number of variables that affect their ability to maintain or gain weight were heard about diet, weather, sickness, age, pecking order, and then we heard, you know, what, there are some horses that are just hard keepers. What does that mean? Hard to keep weight on them. We’re not really sure why. Probably no different than people. Some of us gain and lose weight faster than others, it’s just that way, and you’re going to see those variations in a herd of sixty-nine horses. Now, another thing that I consider significant is that when Animal Control goes there on March fourteenth and Jim and Matt don’t know that they’re there, the underweight horses are all found in the same place. And I would strongly suggest to the court that it cannot be coincidence that the underweight horses, the horses with the weight issues, were also the exact same horses that were the most likely to lose weight in the winter, that being the oldest horses, the two old ladies, the youngest horses, the weanlings and the yearlings, and of course the sick horse which was the colicky grulla. Those were the horses that you would most expect to have weight issues throughout the winter. Perhaps more importantly, Your Honor, when they come to the farm it can’t be a coincidence that all of the underweight horses happen to be segregated together in the same barn, not out in the herd. That’s important, because being inside the barn is a place where they don’t have to compete in the pecking order for food, it’s where Matt can monitor their condition as far as their ability to put more weight on, he can control their diets, and of course that’s the best shelter on that particular farm as far as shelter from the Michigan winter. It can’t be coincidence that all of these horses, the ten to twelve or thirteen, just happen to be there where they can receive special care. That to me does not suggest abuse and I don’t think it should to the court. What that does suggest is that whoever was in charge of taking care of that, those horses, recognized we’ve got weight issues here, I’ve got to take steps to do something about it, so I’m going to do it, I’m going to get them all together, put them in the barn where I can treat them individually. That’s what a good horse caretaker does, takes extra care with the horses that happen to have the special needs for whatever reason they happen to have them. And again, Your Honor, I think this is probably analogous to I guess any classroom in this county that you could walk into that’s got sixty-nine kids in it. You take a group of that size, you’re going to have fat kids, skinny kids, healthy kids, sick kids, kids that are thriving and some kids that just flat out aren’t going to make it. You’re going to have every variation you can think of under the sun. A herd of horses is certainly not going to be any different than that. There will be those that are stronger, healthier, more adaptable to winter conditions, more able to survive better in winter conditions, and then of course out of those sixty-nine again, particularly the younger and the weaker and the older, there are going to be those that are going to have a tougher time despite the fact that they’re being provided with adequate care.

We heard some testimony about the horses’ coats, that they just don’t look good. We learned from the vets that nature provides a way for horses to keep warm in winter. They grow winter coats, they grow rough coats that simply don’t look like the shiny coats that you see in the spring, summer and fall until those coats are shedded out and when the weather warms up. And as particularly Dr. Sray testified to, they’re ugly, they’re rough, and they don’t look good. But again this is a cosmetic issue, not something that’s considered a health issue.

There was some testimony about internal-external parasites, the worms and the lice and, you know, we learned about that as well as we sat through the testimony. The fact of the matter is that worms and lice, internal-external parasites, are issues that come with the territory when you’re dealing with a herd of horses of this size, it’s just a fact of life in a herd that’s going to have to be dealt with. We also learned that horses are more likely to have lice issues when they have their rough winter coats as these horses did, and we learned from Matt, you know, that his regular routine as far as taking care of lice is to apply the lice powder in the spring as the winter coat sheds out and the weather warms up and that typically solves that problem. As far as the overall condition of these horses, the Animal Control vet, Dr. Sray, I think put it best. He’s got a nice down to earth I guess country veterinarian horse farmer way of putting things when he says these horses that I saw on this farm are typical for horses that were wintered outside in Michigan, and perhaps more importantly, when he says there is nothing that he saw on that farm that four weeks of warm weather was not going to take care of.

Your Honor, as to the farm facility itself. It was what it was and it looked the way it looked. If we were charged with messy farm keeping in the first degree, we’d have pled these guys guilty a long time ago. There’s no question about that. But the fact remains that these guys were investigated at the end of a very hard winter and at a time that occurred before the regular spring cleanup that happens every year, and that’s the exact time when this farm is going to look its absolute worst. Aesthetics is not a violation of the statute.

We heard some testimony about the farm, I think one of the witnesses described it as being a minefield of dangerous debris, again something I would suggest to the court as a flair for the dramatic. We had one injury to one horse that can be attributed to something on the ground on that particular farm and that was from the electric fence that got taken down in the ice storm. I mean, we heard about knives and syringes and boards and nails and all kinds of things. I just suspect if those items were that prevalent on that farm and that dangerous to those horses, that during the long time that this case has been proceeding somebody would come in here and say, guess what, we got a horse injured in that manner. And of course the horse--or the court heard no testimony of that type whatsoever. We heard testimony about the collapsed building, the trailer on the property, junk all over the place, you know, and then when Matt testifies and we get the chart out, the court learns probably for the first time that those are in areas that the horses aren’t kept in, that the horses don’t get to unless there’s some kind of breakdown with the internal fencing on the property. And again, what I would suggest to the court is simply that a messy farm that is overdue for a cleanup and a renovation, and nobody contests that, is simply not torture or failure to provide or really I think even relevant to any of the issues that are important to the court in this case.

Three of the horses I want to talk to you about separately, and that’s the horses that are the subject of the felony counts. First is Ice, which the court knows is the horse that had the wire leg injury. We learned from the vets and the horse people that that’s a fairly common injury that can occur on a horse farm. Matt testified to how he treated this particular injury on his own. I know Dr. Sray, Brad Chaltry, Dr. Irving all testified that it’s very common for persons who are experienced in dealing with horses and keeping horses to treat an injury of that type on its own, they don’t have a problem with it. Now, the court heard that Matt had made an appointment with Dr. Irving, an appointment that was canceled by Animal Control. When you go through the time line of who examined and who looked at this particular injury, it breaks down like this. Officer Wheaton sees that horse on March fourteenth. Her testimony, no wire sticking out of that wound. Dr. Sray examined that horse on March sixteenth, his testimony, no wire sticking out of that wound. The Department of Agriculture vets come down on March twentieth, Chickering and Altemose, their testimony, no wire sticking out of that wound. Brad Chaltry came down on the twenty-first, his testimony, no wire sticking out of that wound. Then we get to March twenty-seventh when Dr. Hammer makes his visit, and this is now when Animal Control is eight days into being in control of that property. Dr. Hammer is the first person to testify about that wound that he sees a wire sticking out, an obvious one because I think he said it was a good two, two and a half inches sticking out. What’s important about making that point, Your Honor, is Dr. Hammer’s testimony particularly as to, is this torture or is this not torture, was if the wire was in there, everybody knew about it and didn’t do anything about it, yes, that’s torture. In fact he’s the only one that saw the wire. Everybody out there whether it was Matt, whether it was Dr. Sray, whether it was our witnesses, whether it was the prosecutor witnesses, nobody saw wire out until Dr. Hammer shows up on March twenty-seventh. Then that horse receives no additional veterinarian treatment while that farm and those horses are under Animal Control, Animal Control’s control, until Dr. Irving finally sees the horse on April eighteenth. And again, keep in mind when Dr. Irving’s cleaning up the mess on April eighteenth, this is something that he was scheduled to do back on March twenty-first if that appointment had not been canceled by Animal Control.

The next felony horse I want to talk about is Elvis-Lucky Seven, the horse that had the pelvis injury. If you review the testimony, Your Honor, just outline it as to this particular horse. March fourteenth when Officer Wheaton is out there, there’s no mention of any injury to this horse. March sixteenth Dr. Sray is out at the farm and at Matt’s request he has Dr. Sray examine Elvis. Dr. Sray sees, yeah, looks like there could be a problem, let’s get him to Doc Irving. Oh, you’ve already got an appointment, fantastic, make sure that you get him there. He’s not terribly concerned but recommends that Matt follows up with Dr. Irving. That appointment gets canceled by Animal Control. March twentieth the Department of Ag vets come out. No mention whatsoever of any injury or problem with this horse. March twenty-first Brad Chaltry comes out. He examines that horse, he says, yeah, it looks like there’s a little bit of a problem there, that’s something that should be followed up with. Interesting enough, March twenty-seventh Dr. Hammer’s out there who apparently has bad things to say about, just about every horse out there, but not this one. As far as any signs of any kind of hip or pelvic injury whatsoever, Dr. Hammer was absolutely silent about that as far as his visit to the farm on March twenty-seventh. Now, Dr. Hammer comes back out on April fourth and examines that horse. For what, and apparently he found a problem, although for whatever reason he doesn’t write a letter until six days later on April tenth when he says hey, this horse needs to go to MSU. What I’m interested to know is what happened between March twentieth when the Department of Agriculture vets don’t find any problem with this horse and April tenth when all of a sudden it looks like we’re in an emergency situation where this horse has to be immediately taken to MSU to the extent that we’re having ex parte or short notice motion hearings about it. What happened between those dates, Your Honor, that information is contained in the exhibit that we admitted, the MSU medical vet records regarding this particular horse. The MSU records reveal, and this is a quote from the medical records:

Horse was found down in a group of seventeen

horses. Was recumbent and being trampled, thought to be

dead.

That’s an event that occurred after Matt and Jim’s farm was seized and they were no longer on there. So the extent to what we know happened is what’s contained in the medical records, but whatever it is that happened that turned what seemed to be a fairly minor injury that needed to be checked out into an emergency situation where we have to take Elvis to MSU, who’s later euthanized, whatever it is that happened, happened on Animal Control’s watch.

The third felony horse is the grulla that we refer to as Moose. There was testimony from Dr. Sray that Matt told him she had been colicky, that she was having trouble competing with the other horses for hay in the pasture, apparently in the pecking order she wasn’t at the high end. As a result Matt testified he had taken extra care of her, had brought her into the barn with the other horses that had weight issues, was feeding her grain, supplements and the other things that he described. The testimony was too that being colicky and with the cold weather that was present during that time period in Michigan, sure, that can cause a horse to lose weight and a horse could drop three hundred pounds, as much as that in a period of two to three weeks. So Matt as he testified did what he was supposed to do, he isolated her, he monitored her, controlled what she ate and kept an eye on her. Brad Chaltry even testified the fact that she is separated, although it’s common sense, it’s certainly a sign of proper care and he saw nothing about that horse that indicated she needed any kind of particular vet care. And again, you know, we come back to the same point again where simply because a horse is thin or has a weight issue, doesn’t necessarily follow that it’s been tortured or that there’s been some kind of failure to provide.

In order to prevail on the civil forfeiture case, I’m going to talk specifically just about that for a minute, the prosecutor is going to have to prove the criminal elements of the criminal charge. To win the forfeiture you got to prove a criminal case, although only by a preponderance of the evidence. More importantly, those proofs have to be shown against Jim Henderson because he is the sole owner of all the horses. And, Your Honor, when we discuss horses I want you to think of them in four different categories, that’s how I’ve got them divided up and I think there’s a good logical way for why I’ve done that. The horses I’m going to talk about separately.

The first group would be what I’m just going to call the three felony torture horses, and you know which ones those are. The second group of horses that I’m going to discuss separately is the eight or so underweight weanlings, yearlings, and the two old ladies, Dee and Easy. I’ve got them lumped in together as the thinnest horses that were found on the farm. The third category of horses that I’m going to talk about is the fifty-six horses that the Department of Agriculture said had a body condition score of four or five, which was ideal or within one of ideal. And the fourth category of horses that I’m going to talk about we didn’t really talk about during the trial, but as I understand it there’s been about fifteen horses that have been born and are still present on that farm since that farm was seized. And for purposes of talking about them, I’ll actually work backwards on that.

Taking the easiest one first. The fifteen or so horses that have been born since that seizure are the personal property of Jim Henderson. He owned the mama, he owned the daddy, he owns the babies. I don’t think there can be any dispute about that. As the court is well aware, Jim and Matt have not had access to these horses, they were all born after the farm was seized, so obviously there hasn’t been any torture or failure to provide on their part. So essentially I think that’s a no brainer, those fifteen horses be returned.

The second category, I know I said fifty-six out of sixty-nine probably about a hundred times now, and I’m not trying to beat the issue to death, but the point is, Your Honor, these weren’t my people that said that. I didn’t pick these people to come down and look at that farm and look at those horses, the prosecutor’s office did. Apparently the court was impressed with their credentials to give them expert witness status. They came down and said fifty-six out of sixty-nine were in ideal or near ideal condition. Everybody agrees if there was torture or systematic farm-wide failure to provide after the winter that we had, it would be impossible, not unlikely, but impossible to have fifty-six of sixty-nine in that condition. So again, I think it’s a no brainer those horses have to be returned.

The other group of horses, the eight or so underweight younger horses and the two older horses. You’ve heard the explanation about that, Your Honor, and obviously there are some credibility issues that the court’s going to have to resolve, but again I would ask the court just to look at those with a little bit of common sense. Not to repeat what I’ve already said, but perhaps just to highlight, it ain’t coincidence, Judge, that the ones that happened to be skinny were the ones that were most vulnerable to becoming skinny over the winter, and it’s not coincidence that they were in the barn separated from the herd where they could be more carefully cared for.

The three felony torture horses, the last group, Your Honor, unfortunately Elvis was euthanized, he’s no longer an issue as far as this case is concerned. The other two horses, Ice and Moose, you’ve already heard my comments about as far as whether I think there was torture or failure to provide on those and I’m not going to repeat what I’ve already said about those particular horses. But I would like the court to break those down into categories. I think it’s a fairly easy way to handle it. But we got to get the fifteen that were just born, the fifty-six based on the prosecutor’s own witnesses, the court’s going to give us a decision on the ones that were thin and of course on the two remaining horses that were the subject of the felony torture counts. That just addresses the merits of whether there was torture or failure to provide.

It’s still my position that Mr. Henderson as the sole owner of these horses has an additional defense available to him which I call the innocent owner defense, at least at the time of the directed verdict. Because even if the court finds torture or failure to provide on any of these horses, there is no vicarious liability in Michigan for the acts of Matt if you find those acts to be a violation of the animal cruelty statute. I’m not suggesting that you should, but not being a mind reader, if you do, there is no vicarious liability to that. The testimony as far as to when the injuries occurred, you know, we got some different opinions about that and I’m not going to repeat to you what everybody’s were, you heard it, I know you took great notes about this. You know, the injury to Ice, the wire injury, I don’t think anybody had an injury happening more than thirty days before the March twentieth seizure. The injury to Elvis-Lucky Seven, there’s no mention of that until Matt brings it up on, when Dr. Sray’s out there on March sixteenth. Moose the grulla, we heard testimony it was fine in the fall, she dropped weight throughout the winter, you know, she looked the way she looked in mid March, but the last time that Mr. Henderson was on the farm proper in view of the animals, everybody was fine. The court heard how these gentlemen had set up this farm and I think probably the easiest way to summarize it is Henderson’s the checkbook, Matt’s the day to day caretaker, and the court heard the testimony in that regard. And based on that, you know, if this court does find torture or failure to provide, and again, I’m not suggesting that you should, it’s on Matt and it’s not on Jim Henderson. The closest that anyone comes to placing Mr. Henderson on the farm during these time periods which apparently the prosecutor wants to amend from January first through March fourteenth or March twentieth of 2007, really is about November, 2006, I believe. We know that there’s been no showing that Jim had any knowledge at the time that these animals had these problems, that they actually had these particular health issues. We know he’s not responsible for their daily care and maintenance. The reason why I brought in some of the women, Your Honor, to testify about their knowledge of Matt was to show you why it was a reasonable and intelligent decision and appropriate for Matt to be entrusted with the care take of these horses and that’s why I brought these people in for you to hear about him as a person, his experience with horses and his knowledge of it and why he loves to do what he does. So certainly Mr. Henderson’s decision to have Matt do that was entirely appropriate. So really we’re left with the only theory for binding Mr. Henderson over on any of the felony charges is vicarious liability. And as far as some of the testimony that the prosecutor brought up in rebuttal as far as is Jim on the farm, is Jim not on the farm, what does he know, what doesn’t he know, Joel Mead that testified again doesn’t even have Mr. Henderson, if you believe his time line that it actually was some time after January twenty-second, doesn’t have Mr. Henderson even inside the gate on Michigan Avenue. He can’t even put him inside the property line fence. David Pierce that testified Jim drives by his house on Maute Road. Where was Jim coming from? I don’t know. Where was Jim going to? I don’t know. He cannot put Mr. Henderson on the farm. That Brigitte Gozowsky that testified again that says she saw Jim a couple of times off Michigan Avenue, if you, even if you choose to believe her, she can’t put him inside the gate. So again, no one has made a showing that Mr. Henderson knew what was going on with those horses and that if he did know didn’t take appropriate steps to do something about it. Now, the prosecutor mentioned that Brad Chaltry had a conversation with either Mr. Henderson or Mr. Mercier both and that, oh, yeah, he knew what was going on with the three horses that are the subject of the felony counts. Well, hell yeah, he does, Judge. The conversation took place on March twenty-second, two days after seizure. Certainly Jim and Matt have had enough time to talk between the twentieth and the twenty-second when they talked to Chaltry about what’s going on with the farm and each and every horse that’s involved in this and I suspect that was a fairly heated conversation between the two of them where he found out exactly what was going on. But having a conversation on March twenty-second with somebody doesn’t give you knowledge from January through March twentieth.

Now, another thing that the court needs to consider as far as the felony charges against Mr. Henderson. They had a neat time looking up vicarious liability for felony charges and for misdemeanor charges and there appears to be actually somewhat of a different standard depending on whether it’s a felony and whether it’s a misdemeanor and also what particular type of misdemeanor. A couple of cases the court may want to take a look at, Judge, you probably remember People versus Aaron, the felony murder case that came out in 1980. That citation is 409 Mich 672, and just, you know, it’s a forty page opinion but really has one quote I think that’s fairly personal, or pertinent to this particular case. It says,

However this rationale entirely destroys what is one of the most basic principles on which our criminal law is grounded. There can be no criminal liability without individual culpability.

And to phrase, to me that means you can’t be held criminally liable unless you yourself do something to put yourself in a position of criminal liability. Aaron goes on to say,

In situations involving the vicarious liability of co-felons, which these guys are, the individual liability of each felon must be shown. It is fundamentally unfair and in violation of basic principles and individual criminal culpability to hold one felon liable for the unforeseen and unagreed to results of another felon.

And again, you know, if you Shepardize Aaron, you know, it’s still good law, it’s quoted over and over and over again. And as far as the misdemeanor count is concerned, the vicarious liability, there’s a neat little case called People versus Hockshop which was like a pawnbroker case.

THE COURT: Spelling?

MR. DUNGAN: It’s H-o-c-k-s-h-o-p, Incorporated. That’s found at 261 Mich App 521. What I really liked about this case is it’s one of those cases that kind of reads like a Law Review article where they go through the history and the statutes and there are public policy arguments and things like that, so it’s rather educational besides telling you what the law is. Essentially what that case says, Your Honor, when you have a principle agent, employer-employee, those types of situations, and you’re trying to hold one responsible for the other, they go through, well, can we hold the pawnshop owner liable for what his employee does wrong when he takes in a stolen stereo without getting a thumbprint. They talk about other different kinds of situations where you can or cannot hold the principle or the agent liable for what the agent does. And essentially what it broke down to is, and I know that you’ll read it for yourself, the statute specifically says you can hold the owner liable. You don’t have to guess what it says, it says the owner can be held liable for the acts of an agent, the owner gets held liable. Obviously the animal cruelty statute we’re dealing with does not say that. If the statute starts to get a little ambiguous or a little bit vague, can we hold the owner or the principle liable for an employee or an agent, whatever they happen to do. It really says if the penalty is a five hundred dollar fine, yeah, we may tend to allow some vicarious liability. Where however the statutory maximum for the misdemeanor is a year in jail or ninety-three days in jail, uh-uh, we’re not, we’ll take your money, you know, for what somebody else does, but we’re not, but we’re not going to put you in jail for it, that’s essentially what it says.

So, Your Honor, in closing, what I wanted the court to be aware of essentially is the four groups of horses that I talked about, I mean certainly I would anticipate based on the proofs and really based on what the prosecutor’s own witnesses say, a substantial number of horses are not going to be forfeited. Obviously there’s going to, the court’s going to have some issues with the two remaining living felony horses, the court’s probably going to have some issues that you’re going to want to talk about as far as the eight to ten underweight horses, but the fifty-six out of sixty-nine got to come back. The fifteen that were born since this farm was seized, respectfully got to come back. That’s if you’re actually able to attribute some form or some knowledge of torture or failure to provide to Jim, which I don’t think can be done. Under the innocent owner defense about which we had discussion, Your Honor, virtually every single one of those horses should be returned to Mr. Henderson and that’s the finding I would ask the court to make. Thank you, sir.

THE COURT: Mr. Dungan, if I understand then what you’re saying is that if the court should say Mr. Henderson doesn’t have this liability, however you want to define it, vicarious or individual culpability, cannot the, all horses, I’m understanding you disagree with that, but could not the court forfeit all or some in your order that you’ve outlined them because of the individual culpability of Mr. Mercier under the forfeiture statute?

MR. DUNGAN: No, because Mr. Mercier doesn’t have an ownership interest.

THE COURT: What does possessor mean then under the statute, or a person having charge or custody of an animal?

MR. DUNGAN: Oh, I agree with that. You can hold somebody criminally liable for that, but the only person you can forfeit an ownership interest about in a civil forfeiture case is the owner.

THE COURT: Well, the statute says an owner, possessor or a person having charge or custody of an animal.

MR. DUNGAN: Can be found guilty--

THE COURT: Shall not do any of the following.

MR. DUNGAN: Right.

THE COURT: I read this statute a couple times. Is there something later then that says that if the court finds preponderance of the evidence that these acts were proven, failed to, I think we’re just working with 2(A) fail to provide an animal with adequate care--

MR. DUNGAN: Yes.

THE COURT: --that therefore the owner is-—you can’t forfeit them because the owner wasn’t, didn’t have that individual or vicarious liability?

MR. DUNGAN: Exactly.

THE COURT: Does the statute say that?

MR. DUNGAN: The vicarious liability cases do.

THE COURT: I understand that, but the statute says, the Legislature says, and some of us do believe that we’re supposed to read what the Legislature says and apply it--

MR. DUNGAN: Sure, absolutely.

THE COURT: --when it’s clear. It says an owner, possessor or person having charge or custody of an animal shall not do any of the following and then we’re familiar with what’s been listed here, you both talked about that. And then it goes into the hearing. And if the court finds that the prosecuting attorney has met the burden by a preponderance of the evidence, a forfeiture order shall enter, bond, et cetera. If posted, then the horses are held pending, forfeiture is held in abeyance pending the criminal action. Does this statute 750.50 say okay, you found a possessor or person having charge or custody of an animal failed to provide adequate care, but not the owner, in our case Mr. Henderson--

MR. DUNGAN: Right.

THE COURT: --therefore you cannot forfeit?

MR. DUNGAN: Exactly.

THE COURT: The statute says that?

MR. DUNGAN: Can I point you to language that quotes that? Of course I can’t. You know I can’t. You’ve read it too.

THE COURT: Okay.

MR. DUNGAN: But, you know, and I don’t want to-—

THE COURT: I got cross eyed a couple times here.

MR. DUNGAN: I know. And I don’t want to get confused because we’ve been doing criminal and civil at the same time because--

THE COURT: I understand the vicarious and criminal side.

MR. DUNGAN: Right. But back to square one. The civil forfeiture is only against him because he’s the owner.

THE COURT: So you’re saying yes, I, if I don’t find Mr. Henderson because of the case law, that I would not forfeit any of them, even though Mercier is guilty as all get out.

MR. DUNGAN: Exactly, exactly.

THE COURT: Got you. Okay.

MR. DUNGAN: If you find Jim to be an innocent owner and Matt to be the worst caretaker in the world, he still gets them.

THE COURT: I got you.

MR. DUNGAN: Okay. Thank you, Judge.

THE COURT: Okay. Just a minute, Miss Lamp.

Miss Lamp, you have some closing words for us?
MS. LAMP: I do, Your Honor.

THE COURT: Sure, go ahead.

MS. LAMP: In response to the arguments given to the court by Mr. Dungan, I would indicate to the court neither that Animal Control nor the prosecution has ever maintained that all sixty-nine horses on this farm were starving. What we have maintained is that there was a violation of MCL 750.50 in that the, all of the horses in totality, that there was a failure to provide adequate care, which involves adequate water, adequate food, shelter and sanitary conditions as has already been covered before the court. We’ve never maintained that all sixty-nine horses were starving in this case. What we do maintain and I believe we have proven to the court is that there was a failure to provide adequate care as defined under our state law for all sixty-nine horses.

Mr. Dungan was talking about how Dr. Sray was our first choice veterinarian and how then we sought different veterinary testimony and opinion. In fact, that was not the case, as was indicated by the testimony. Officer Wheaton had requested Mr. Mercier get a vet to the farm now to assess the situation together with her. She did not know Dr. Sray was going to be that veterinarian as I understood it until she arrived there and there Dr. Sray was. There was a conflict of interest, as Dr. Sray himself acknowledged on the stand, that he could not both be the veterinarian for Mr. Mercier and also the veterinarian for the county in this case. He acknowledged that openly on the witness stand. He came in as a result of Mr. Mercier calling him there to the farm and requesting that he respond, and not as a result of Animal Control calling him to that farm. Once he’d been there obviously Animal Control as an obvious result of the obvious conflict there, had to seek different veterinary advice, especially based upon what the, what I would indicate were not true and accurate conclusions that Dr. Sray testified as to the condition of the horses.

Dr. Chickering and Dr. Altemose according to Mr. Dungan said that fifty-six of the sixty-nine horses were in ideal condition and that we should return fifty-six of the sixty-nine horses. Now, first off, as I recall the testimony of Dr. Chickering and Dr. Altemose, they both specifically testified that their BCS analysis was a visual analysis, and I don’t recall whether it was Dr. Chickering or Dr. Altemose, but one of them testified that a visual BCS score is always going to err on the side of going too high on the BCS scale as opposed to too low because unless you feel the animal you don’t know where the bones are, and so if, the score would be different if, you know, somebody were to come in and do an actual physical exam it may be less, but it’s not going to be higher. And additionally the argument that fifty-six of the sixty-nine horses should therefore be returned as a result of this ideal condition proposed by defense counsel, ignores the failure to provide adequate care as I just cited under our state law of water, food, shelter and sanitary conditions. And it is that in and of itself that requires that the horses not be returned.

Now, we had the testimony of Mr. Chaltry from the Ponies Are Us, and quite frankly, Your Honor, I don’t know what to make of the testimony of Mr. Chaltry. He was called in as a rescue to come in and help Animal Control administer first aid and Mr. Chaltry, as I understood his testimony, said that when Ponies Are Us usually comes in, they usually seize all of the animals, it’s usually a removal situation and I think that that’s initially what might have been discussed in the sense that Officer Luce contemplating a possible impoundment of the farm in the future, may have thought we need to get these sixty-nine horses and we need to find somebody who can help us move them to other locations and I think that’s why they initially came into contact. But when all was said and done, they were called out to help administer first aid as I understood it under the supposed authority of Dr. Herman, which is whole other bizarre story. But, so they come out there and they administer this and Mr. Chaltry testified on the stand, when he comes into a situation he usually ends up taking the animals, taking the equipment and, unless I misunderstood him, I thought that his testimony was that he thought maybe he was going to take the horses and maybe he was going to take the trailer and maybe he was going to take all this, and then so I’m not quite sure what his motivations were and why he was there, but I do know that, as he testified, that when he left he went back and got on the internet and found the phone number of the defendants and called them. And it just all seems very bizarre to me, I’ve never encountered a situation where a rescue operation is called in by law enforcement and then goes around behind the back and talks to the defendants and seems to be conspiring in some way. So I don’t even know what to make of Mr. Chaltry, so I’m just going to discard that and move on.

Dr. Hammer testified about the eight weanlings or yearlings that were emaciated. And if you’ll recall, as I recall Dr. Hammer’s testimony, he initially thought they were weanlings because they were so small and in such poor condition, but upon further examination was able to determine that in fact they were yearlings but they just looked like weanlings because they were so malnourished. And Mr. Dungan indicated that Dr. Hammer’s testimony about the eleven emaciated yearlings that were in the pen was contrary to that of the Department of Agriculture vets. Now, I believe that’s not true, Your Honor. As I recall the testimony of Dr. Chickering and Dr. Altemose, they said that the horses in the pen in the farm which would constitute the weanlings and or yearlings that Dr. Hammer referred to, were BCS’s of two or three, which is certainly less than ideal. I believe that’s the very thin to thin category on the scale.

Defense counsel also talked about how, you know, these are barn horses, barrel racing horses, implied that they were somehow horses of a lesser standard than the lofty Martha Stewart type ways that Animal Control takes care of their horses. And, Your Honor, that’s completely false. These are, we’re not dealing here with lofty standards of Animal Control. Animal Control does the best they can with what they have. We’re talking about the testimony of the Department of Agriculture vets, we’re talking about the generally accepted farm practices as put out by the Department of Agriculture, our state department mandates that there be adequate shelter for an entire herd of animals at any given time, so that if it rains all sixty-nine horses can find shelter if they choose to do so. That’s not what was available here at the farm. Also, the sanitary conditions, that’s not a lofty condition, Your Honor, that’s something that’s required by our state law. MCL 5050(I), 1(I) says that sanitary condition means space free from health hazards, including excessive animal waste, overcrowding of animals or other conditions that endanger the animals’ health. This definition does not include the condition resulting from a customary reasonable practice pursuant to farming or animal husbandry. There’s been no testimony, and in fact to the contrary, that there’s nothing reasonable or customary about farming or animal husbandry in the way that these horses were maintained. Both, we’ve had testimony from multiple witnesses that in fact there was, one, excessive animal waste, two, there’s been multiple testimony of there were more animals on the lot than could be supported, and three, that there were multiple conditions that could endanger the health of the animals, mainly alerting the court to the debris that was all over the farm and inside the barn. The statute also requires the shelter that I just discussed and defines it in subsection J just below sanitary conditions, means adequate protection from the elements and weather conditions suitable for the age, species and physical condition of the animal so as to maintain the animal in a state of good health. And then it goes on, shelter for livestock includes structure and natural features such as topography, although that has been ruled out by the testimony in this case.

Defense counsel talked about how the investigation in this case proceeded backwards, how Animal Control came in and wrongly impounded the animals. In fact, it was just to the contrary, Your Honor. The court heard that this all began with Deputy DeLand being dispatched by 911 to come out for a horse in the road that was posing a risk not only to the horse, but also to motor vehicles that would drive down Michigan Avenue. He referred the case to Animal Control, Animal Control came in and began the investigation on March fourteenth, made attempts to contact the owners of the horse, and I believe it was sometime late on the fifteenth that finally there was contact made, in spite of the postings that officer Wheaton testified that she posted both on the farm and as she was able to find the home of James Henderson, Jr., on Sager Road, and no one contacted her until late in the day on March fifteenth, in spite of the fact that Mr. Mercier testified that he’s there at least two times a day. Then there was, she met there with him on the sixteenth, met there with the vet, and it wasn’t until on March twentieth, Your Honor, that the animals were impounded. And, you know, it really is as required by statute, Animal Control’s duty to impound those animals if they’re not being properly cared for. That’s the whole purpose of the statute, if there’s animals that aren’t being cared for, it’s their duty to seize those animals and care for them so that they don’t die. So Animal Control was merely performing the duty that it is required to do under state law.

Mr. Dungan commented on how nobody talked to Matt or Jim, but as I indicated, as soon as Matt made himself available, Officer Wheaton was willing to talk to him. Mr. Henderson never made himself available to be part of the investigation. Defense counsel also referred that, you know, that the people who testified in this case just had a snapshot picture of what had occurred on this farm. A snapshot picture is worth a thousand words, Your Honor. The snapshot summarizes what the conditions have been on the farm that have led us to what is here in this snapshot here at this time. The expert witnesses, multiple of them, testified that this had been a longstanding condition that had gone on for a period of months. Animal Control as I understand it, and nor has the prosecution ever maintained that nobody ever came out to the farm, and we would certainly agree with defense counsel that had nobody come out to the farm for a period of months, that in fact there would have been sixty-nine horses that were dead instead of just the dead horse in the driveway and the dead foal on the farm. Pat Davis, as I recall, she testified that somebody, she’d not seen somebody out at the farm I think it was till March or a couple of times between January and March. As the record will reflect, I specifically asked Miss Davis does that mean that nobody was ever there on any other time and Miss Davis replied that absolutely not, somebody could have been there at times where she didn’t see it. So that’s never been an argument and we would agree that they would all be dead if nobody had been there.

The court would I believe, also would find it interesting that the witnesses that testified were all friends, they testified they were all friends of both of the defendants and have been so for a number of times(sic), which would certainly in my opinion indicate their bias in their testimony. There was testimony as the defense counsel indicated that the weight loss of all these horses had happened so quickly. In fact, the Ponies Are Us guy testified that this may have just happened overnight. Four hundred to four hundred fifteen pounds that that grulla mare lost could have just dropped off overnight. That’s ridiculous, Your Honor. Dr. Hammer testified specifically that it had to have been a number of months, I believe it was four to five or five to six months of inadequate water and inadequate food for this, particularly for the grulla mare to have arrived in the condition that she was at the time that the horses were impounded.

Defense counsel also brought up the argument that the Department of Agriculture merely had a snapshot vision of the amount of food that was there on the day that they happened to be there to investigate the farm on March twentieth. As I recall the testimony of the Department of Agriculture vets, their testimony indicated that there was not enough food there to feed the horses or maintain the horses either in forage or out on the field, but more importantly what they testified about was the condition of the horses in totality was not consistent with horses that had been fed regularly, and inadequate amounts. We also heard testimony about the pecking order of horses. If horses are being fed adequately and appropriately, then you don’t have some horses starving and the stronger horses being the only ones that are getting the nourishment. You account for all those factors in your management of your farm. Dr. Hammer specifically testified that in his opinion that two thirds of the horses were on the thin side. Thin side, that does not mean that they were emaciated, but it means that in his opinion that they were not nourished to the level that they should have been.

Mr. Mercier posed to Officer Wheaton when she was there to investigate that the grulla mare was, it was as a result of the rough winter and a colic in December. But the court has to remember that the grulla mare and the two other mares were severely emaciated horses. And again, four hundred to four hundred fifteen pounds underweight is how much the grulla mare was underweight. The testimony was that you could see every bone in its body. And remember that the yearlings in the barn, they did not get underweight in a short period of time. These are yearlings that looked like weanlings. Also, defense counsel argued that, you know, it was just a rough winter and that that’s why you would expect the horses to lose weight. Your Honor, it is in fact what we have here are the pregnant mares and the younger horses, they are the most nutritionally demanding population on a herd and those are the ones that should in fact be provided for the most. But they are also going to be the very first ones to show that there’s a problem on the farm, and that’s what we have here and it’s significant in that regard.

The defense counsel argued that Mr. Mercier was in fact caring for the horses by isolating the yearlings in the barn and ultimately bringing the grulla mare into the barn. Let’s remember what the conditions of the barn were according to the testimony at the time that Animal Control came in. Officer Wheaton testified that when she went into the barn on March fourteenth that there was manure and urine without any dry spots, four to five inches deep, and that there were boards with nails and all sorts of debris. So what a fine condition, what a fine way to care for those horses that need extra care, to put them in a pen where they are in such poor unsanitary conditions. Defense counsel also made the analogy of sixty-nine children in a classroom where we’ll have a broad variety of skinny children to fat children. Your Honor, if we have children that are severely emaciated analogous to the grulla mare, then we would have CPS involved in investigating and probably removing the children from their home, which would be their duty under law.

MR. DUNGAN: All of them?

MS. LAMP: And we have the same type of situa--same type of situation is Animal Control--

THE COURT: Mr. Dungan.

MR. DUNGAN: Sorry.

MS. LAMP: Animal Control is charged with making sure that the animals are properly cared for and as I indicated, it’s their duty to impound those animals and care for them if they’re not being done so. And I will certainly direct the court to recall that, as I recall, all of the testimony from I believe it was approximately twenty-seven witnesses that were presented by both prosecution and defense, I don’t believe there was any testimony that there were any fat horses on this farm. So we’re dealing with five and below. We never get above that scale because there were no fat horses on the farm. Mr. Dungan argued that the coats of the horses were merely a cosmetic issue. You know, the fact that they had internal and external parasites. But the court will recall that this was not just a mere small little lice issue. It was evidence that the herd had not been cared for and it was just one of many factors showing the lack of care of these animals. Dr. Sray himself testified that he’s had horses as I recall for many years, if not all of his life, but that he’s never had lice on any of his own horses, ever. Dr. Marteniuk testified that the infestation was so bad that she took photographs to use as a teaching tool, and in fact both of the Department of Agriculture vets testified as to the excessive infestation of parasites that they observed visually.

Defense counsel argues that this is a housekeeping versus a farm keeping matter. Again, Your Honor, I’m going to do the classroom analogy and say that if you go into a house where there’s feces and there’s children and urine and all sorts of debris around where the children can hurt themselves, matches, knives, CPS comes in and removes the children from the home. They’re going to do something about it. It’s not that it’s okay and it’s not that it’s just a mere matter of housekeeping. We have horses here standing in manure and where there are sharp objects, even out on the pasture there’s all sorts of hazards for those horses that do not belong there. It’s not an aesthetic issue as argued by defense counsel. The sanitary conditions are required under our state law.

Mr. Dungan addressed specifically the three horses, Ice, which is the horse with the wire injury, and he testified that, you know, he indicated that this is a very common injury. As I recall that was the testimony, that this is the type of thing that could happen on a farm. There’s wires, horses can get them wrapped around their feet. Although I think our common sense could direct us that in a farm where there’s wire and debris all over, it’s probably more likely that it’s going to happen in a place like that. But that’s not really the issue. The issue is, as Dr. Martenuik testified, it’s not the conditions that you have on the farm, but rather what you do with them, and that’s what the issue is here. It’s not that Wire had the injury, it’s what Mr. Mercier and Mr. Henderson chose to do with that injury, which was to just let it heal over and not treat it. Dr. Sray testified that, sure, it’s fine to treat it on your own for approximately two or three days, and again, the only veterinary intervention done to this parti