squirrels

A squirrel carries a walnut in its mouth in Portland, Maine, in 2018. On Thursday, a judge dismissed nine felony animal cruelty charges against a Greenacres, Wash. woman after she used an electric fence to protect her walnut tree from squirrels. (Robert F. Bukaty / AP)

A Greenacres, Wash. woman is no longer facing nine felony charges for her efforts to prevent squirrels from raiding her beloved walnut tree. But for the nine squirrels, the death penalty could not be reversed on appeal.

Spokane County Superior Court Judge Annette Plese on Thursday dismissed nine felony counts of animal cruelty against 68-year-old Mary J. Franks, a retired U.S. Postal worker who is suffering serious medical problems, said her attorney, Brendan Kidd.

Plese tossed the charges on a request from Kidd, who argued the state could not prove that Franks intended to inflict substantial pain or undue suffering on the walnut-seeking squirrels, who were seen hanging dead on an electric fence Franks installed to deter them from raiding her walnut tree.

“We got down to the nuts and acorns of it over here,” Kidd said. “It would be funny if it wasn’t so serious.”

The case was prosecuted by Deputy Spokane County Prosecutor Brett Pearce, who handled the felony criminal case even though he primarily works on appeals.

“I don’t have any problems with the judge’s decision,” Pearce said. “She made a pretty fair ruling.”

But Kidd questioned why his client had to go through the personal expense of hiring a private attorney and suffering the stress of facing prison time. Each count of animal cruelty carries a maximum penalty of five years in prison. With no criminal record, Franks likely would have only faced about a year in lockup, Kidd said.

“It’s one thing if you write someone a ticket and they pay a fine,” Kidd said. “But you are talking about taking someone’s liberties away. She could have been incarcerated for a very long time.

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“Is that an appropriate cost to society for someone putting up an electric fence around a walnut tree to keep squirrels away? It’s disgusting.”

The case began after two passersby reported seeing dead squirrels hanging from a fence in Franks’ backyard. The death display was “pretty much in plain sight,” from the street, Ashley Proszek, the field operations manager at SCRAPS, said earlier this year.

When confronted by one of the witnesses, Franks reportedly said the squirrels were her trophies and she would be keeping the squirrels hanging from the fence to deter other squirrels, Proszek said in the earlier interview.

Franks took down the fence after a SCRAPS officer came to her house to investigate, Kidd said.

Despite his problems with the charging decision, Kidd said he harbored no ill will toward Pearce, the prosecutor.

Pearce “was very respectful. He was courteous,” Kidd said. “He’s a very good prosecutor. Maybe he had marching orders from above. I don’t know.”

Pearce declined to answer questions about his office’s charging decision, saying he did not want to say anything that would run afoul of his ethical duties.

Expert finds torture

But Kidd said the state was doing everything to move forward with the prosecution against Franks. The state had hired an expert witness, in this case a veterinarian, who was prepared to testify that Franks’ use of an electric fence justified the felony charges.

The expert “reviewed literature on the euthanization of animals by electricity and concluded that these squirrels were tortured to death,” Kidd said. “He never performed a necropsy. He just looked at a grainy picture and made these conclusions.”

Kidd said the state was prepared to spend thousands of dollars on the trial, and that doesn’t count the cost of incarcerating Franks if she had been convicted.

“She is dealing with some significant health issues,” Kidd said. “She’s certainly not someone who needed this sort of prosecution.”

Efforts to reach Franks through her attorney were unsuccessful Thursday.

Kidd said he did not know the condition of this year’s crop of walnuts from the tree in question.

“Rather than break the law in a no-shoot zone, she puts up a fence and knows the only way it works is if it’s a hot wire,” he said.

After prosecutors filed the case, Kidd said he received an email from a major crimes detective. It included a photograph of a squirrel that had been electrocuted after it stepped on an exposed power line.

Under the photo of the dead squirrel was a question about whether or not “we were going to be prosecuting Avista next,” Kidd said. “So, law enforcement, I don’t think, was terribly behind the prosecution.”