PALMER -- A Mat-Su Borough commission was deadlocked Wednesday, unable to decide whether a top Iditarod musher's sled dog should live or die after it mauled a 2-year-old girl.
The husky belonging to Big Lake musher Jake Berkowitz nearly killed the toddler, Elin Shuck, animal control officers say. The girl was walking through Berkowitz's dog yard of more than 50 huskies with her mother and young siblings on May 10 when Wizard broke free from his chain and attacked, both sides agree.
Berkowitz says he and his wife had no idea the Shucks would be bringing their young children into the inherently dangerous dog yard. They weren't home at the time.
The parents of the girl say they told Berkowitz's wife, a former nanny for the kids, they would be visiting that day. She should have known the kids would come too, they say.
Lawyers for both sides battled for more than five hours Wednesday over whether the dog or the girl's family is to blame.
"There are many in this room who know full well that that young girl would not have been bitten if she had been at her mother's side," Berkowitz attorney Myron Angstman told the board.
"No one with any reasonable sense of safety would have done what that woman did that day. She exposed a 2 1/2-year-old child to a leaping, barking, crazed group of animals," he said.
At stake is the dog's life.
Borough law calls for shelter officials to humanely kill dogs that cause "serious physical injury or death" to a person. Exceptions can be made when the victim was attacked while trespassing, provoked the bite or when the animal was protecting itself, among other conditions.
Jennifer Sundquist, mother of the girl, testified that her children did nothing to provoke the bloody attack. Elin suffered permanent damage to her vocal chords and nearly lost her ear when Wizard pierced her throat and shook her, Sundquist told the board.
"She's never going to be able to sing," she said.
'ALMOST TOOK HER EAR OFF'
The mother described the day of the attack in halting, tearful testimony over the objections of Berkowitz's lawyer, who said no one is disputing the seriousness of the injuries.
Sundquist said she texted Berkowitz's wife, Robin, before the visit to say she wanted to stop by musher's kennel south of Big Lake. The Shucks pay $300 a month to board several of their own sled dogs there. The family planned to leave food and pick up a couple of the huskies, Sundquist said.
"(Robin) said they wouldn't be home, but that sounded good," Sundquist told the board.
Sundquist said she was leading one of her dogs, Natchez, by the collar as she walked down a path between the rows of sled dog houses.
Elin and Sundquist's 4-year-old son, Liam, were walking with her. Her 1-year-old daughter was strapped to her back in a baby carrier.
Sundquist said she turned around to make sure the kids were nearby. She saw Wizard, who had broken the "S-hook" on his tether and was able to run free. He lunged at Elin, she said.
"That's the first time he bit her, and he almost took her ear off," Sundquist said. She ran back to her daughter, falling in the mud. The backpack carrying her baby hit her in the back of the head, she said. For a moment she lost sight of Elin.
"When I got up, he had her by the throat," Sundquist said.
"I just hit him and I had to pull his jaws off of her neck, and my son was screaming her name," she said.
Medics flew the girl by helicopter to Providence Alaska Medical Center. Elin lost two-thirds of her blood and was given two adult transfusions, Sundquist told the board.
Berkowitz, who three months earlier finished eighth in the Iditarod Trail Sled Dog Race and won a humanitarian award for best dog care, listened with arms crossed. Another Big Lake musher, Kelly Maixner, sat in the gallery. Berkowitz's lawyer, himself an Iditarod veteran, withdrew a request to introduce fan favorite musher DeeDee Jonrowe as a witness.
With punchy cross-questioning of witnesses, stacks of evidence photos and no fewer than four lawyers in the room, the hearing at times resembled a TV courtroom drama. Sundquist often sat silently, staring blankly as lawyers and witnesses questioned her parenting on the day of the attack.
During a break, Sundquist said her daughter attends physical therapy four days a week and wears a hat and sunscreen to prevent permanent darkening of the scars on her neck. Elin's left vocal chord is paralyzed and she has trouble swallowing liquids, Sundquist said.
Liam, who just turned 5 years old, is seeing a counselor too, she said. "(He) has been drawing pictures of what happened," she said.
'DON'T TAKE KIDS INTO THE DOG YARD'
Mat-Su Animal Care and Regulation chief Matt Hardwig recommended the dog be classified under the most serious designation for animals that attack people. That recommendation, if approved by the board, means the dog will be put down.
Hardwig said the life-threatening attack by Wizard was the most severe he has seen in a decade working for animal control.
He rejected the argument that the girl and family were to blame for walking their own dog with small children through the dog yard and whipping the Berkowitz dogs into a frenzy.
"There are always children with animals. There are always other animals being run through lots," Hardwig testified. "It's not a reasonable defense."
Berkowitz and other witnesses said the case isn't so simple. Sled dog yards are inherently dangerous places and the semi-wild animals can be provoked when strange dogs and small children walk through their territory, they said.
The musher showed a video, filmed a few days after the attack, of someone walking the Shucks' remaining dogs down the same path where Elin was attacked.
The Berkowitz dogs can be seen lunging and straining at their chains, running in circles and barking. That should show how dangerous the yard is, Berkowitz said.
A borough lawyer objected to the viewing of the video, saying such evidence was turning the hearing in to a "circus."
Sundquist made an "incredibly poor choice" bringing the unattended children into the dog yard and was as much as 120 feet away from the girl when the mauling occurred, Angstman said.
Berkowitz testified that he would not knowingly have allowed young children in the dog yard unless he or his wife were present.
"There is a bond between me and the dogs and a control that I have over them that no one else has over those sled dogs," the musher said.
The Berkowitzes do not have any kids and do not have a tourism business, meaning the dogs are not used to visiting families, he said.
Robin Berkowitz said that when she worked as a nanny for the Shucks, she was told not to take the kids out of the van when the family visited another Mat-Su dog yard..
Robin said she did not explicitly tell Sundquist not to bring the children around her tethered sled dogs at Apex Kennels because it did not seem necessary. "I did not feel the need because that was her rule to me ... her acknowledgement, 'don't take the kids into the dog yard.' "
IMPASSE ON THE BOARD
Katrina Zwolinski, a veterinarian who works at the borough shelter, said she has observed Wizard since he arrived at the shelter after the attack. The animal is mild-mannered with adults, she said. But the dog seemed "remarkably interested" in her own children when her kids were visiting the shelter and separated from the husky by locked doors.
When Zwolinski's daughter made frightened noises, she said, the dog pounded against the kennel door "as if he wanted to get out." Wizard appears to have a heightened prey instinct, she testified.
The hearing to decide Wizard's fate could foreshadow battles to come in state civil court, and could have implications on how the borough deals with future dog attacks. If Wizard is pardoned, dog owners will be able to blame attack victims for agitating their animals, even if the victim was merely walking by their dog, borough officials argued.
In his closing statement, Deputy Borough Attorney John Aschenbrenner said Berkowitz is claiming that a 2-year-old child walking near a dog amounts to "tormenting" the husky and prompting an attack.
"If that's the case, then everybody better keep their children in the Mat-Su Borough in their homes," he said.
Mushing is the state sport, Angstman told the board. By allowing sled dog yards to exist, Alaskans are saying that these dangerous places represent an acceptable risk.
"Would we close down the creek at Mr. Berkowitz's house if that little child had wandered in and drowned? Do we close the street when an unattended 2 1/2-year-old gets run over by a car?" he said.
Animal Control Board member John Wood called the case the toughest of his career. After debating behind closed doors, the four board members were at an impasse, he announced.
Two wanted to accept the animal control chief's recommendation that Wizard be euthanized. Two were opposed.
The board must issue a final order within 10 days and has scheduled another meeting for June 24. Angstman said it's unclear what happens next. If no board member changes his or her mind, both sides have the option of asking that the dog's fate be decided in state court, he said.
Mat-Su Borough law requires anyone who owns five or more dogs that are 6 months or older to register as a kennel operator. Berkowitz did not have a kennel license at the time of the attack, according to an animal control report on the mauling.
Berkowitz applied for kennel license in the week following the attack. Animal Control spokeswoman Carol Vardeman said she did not know why Berkowitz wasn't cited for failure to have a license. (Officials ticketed a Big Lake man $150 for keeping more than two dozen dogs without a license in April.)
"It's the officer's discretion," Vardeman said. "(Berkowitz) was already in enough trouble. He figured he would hop down right away and apply."
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