Davis

CHARLESTON - West Virginia Attorney General Darrell McGraw wants to brand a little old man as a criminal for rescuing a baby deer.

McGraw assistant William Valentino pleaded with the state Supreme Court of Appeals on Jan. 8 to prohibit Circuit Judge Joseph Pomponio from dismissing a charge of illegal wildlife possession against Joel Rosenthal of Hillsboro, owner of a wildlife sanctuary.

According to Valentino and the Department of Natural Resources, Rosenthal committed the crime by caring for a fawn that two men pulled from a lake.

Valentino's argument offended all three Justices who heard it.

"In a state with limited resources and thousands of children being abused and criminals running the streets, why are we wasting taxpayer dollars prosecuting a man who is trying to do nothing but help animals?" Justice Robin Davis asked.

Justice Joseph Albright said it would take "a heart of concrete" to charge Rosenthal as a criminal.

"This old man is doing the right thing," Chief Justice Spike Maynard said. "The right thing may violate the law and the penalties are horrible."

Justices Brent Benjamin and Larry Starcher missed the argument.

Rosenthal, representing himself, told the Court that DNR officers have brought him animals needing help.

"I don't go around looking for animals to take care of," he said.

Rosenthal never would have taken care of the fawn if DNR officers had taken care of it.

In 2005, James Stoots Jr. and Shane Harvey found the fawn and called the DNR. An officer told them to release it into the wild.

Knowing the motherless creature would die, they took it to Rosenthal.

Two months later, the DNR cited Rosenthal in Pocahontas County. At trial in magistrate court, a jury convicted him.

Rosenthal appealed to circuit court, and Pomponio dismissed the citation last June.

Valentino petitioned the Supreme Court of Appeals for a writ of prohibition that would keep Pomponio from enforcing his order.

Valentino's brief to the Court claimed state ownership of the fawn, quoting law that grants the state title to all wild animals as trustee for the people.

"There simply is no legal mechanism for Rosenthal to engage in conduct that provides a rehabilitation facility for West Virginia wildlife," Valentino argued.

In response, Rosenthal quoted a different law making it a crime to abandon, neglect or deprive sustenance from any animal.

"The DNR is trying to say that by aiding the fawn I was breaking the law," he wrote, "but had I abandoned the fawn I would likewise have broken the law."

He wrote that any property owner in West Virginia can injure, abandon or kill almost any wild animal.

"Yet the DNR now fights vigorously to prevent someone with decades of experience from aiding a miniscule few of these creatures," he wrote.

He argued that DNR officers abrogated their responsibility by choosing not to take the fawn from Stoots and Harvey.

"Instead they tried to instruct these men to break the law," he wrote.

At oral argument, Valentino brushed off Albright's comment about a heart of concrete by comparing the case to assisted suicide.

"It's not right to compare this to assisted suicide," Albright said.

Albright asked if Rosenthal mistreated the animal. Valentino said he did not.

Albright said, "He rendered some pretty good assistance to this creature?" Valentino said he didn't know.

Maynard said Pomponio tried to do right. He said judges sometimes try to do right instead of doing justice.

"Doing right is easy," Maynard said. "Doing justice is really hard."

Rosenthal said he has a federal permit to rehabilitate migratory birds.

Maynard asked what would normally happen to an animal in a case like this.

Rosenthal said the DNR violated state law that makes it illegal to abandon or neglect any animal in need.

"I did not do anything illegal," he said. "Judge Pomponio ruled exactly as he should have."

Valentino rose to rebut, and Davis asked him why the state would waste its time on this prosecution with children being abused and criminals running the streets.

Valentino said he swore to uphold the Constitution and the law.

Davis sighed loudly.

Albright asked Valentino if the state delivered animals to Rosenthal.

"I don't know, but the director wouldn't take kindly to that," Valentino said.

The Justices took it under advisement.

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