“The rain ...falls upon the just and the unjust alike; a thing which would not happen if I were superintending the rain’s affairs. No, I would rain softly and sweetly on the just, but if I caught a sample of the unjust outdoors I would drown him.
Mark Twain, a Biography
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“Unconcerned, unrepentant, unchanged.” These were the words that prosecutor Nadine Pellegrin used in describing the surviving partner from the Boston Marathon bombing, Dzokhar Tsarnaev, who had his appearance before a jury and was sentenced to death yesterday, after the jury decided that a complete lack of remorse had to be a factor in reaching a death penalty verdict. A video of Tsarnaev giving the finger to a security camera in his cell months after the bombing took place seemed to say it all to the jury.
Unconcerned, unrepentant, unchanged. Those same words describe Larry Wheelon who brought a sore horse to a horse show and was ticketed for it, while he was still under an 18 count indictment for aggravated cruelty against horses alleged to have been sored while in his training barn.
Unlike Tsarnaev, however, Wheelon, thanks to what took place in a Blount County courtroom, also on the 15th of May, will never face a jury. The compelling and stark evidence in his case will never be presented for judgment.
During hearing proceedings in the Wheelon matter in Maryville, Tennessee, the prosecution led by Mike Dunn and the defense led by Rob White appeared before Judge Tammy Harrington over a motion to suppress evidence. Without that evidence there could be no case, so the case itself was the prize to be won or lost.
Witnesses were separated with the exception of the two experts , John Bennett, DVM, a defense witness , and John Haffner, DVM, the prosecution’s expert. The two men sat stoically side by side in the courtroom waiting to be called to the stand.
First to be heard was Julie McMillan, a 24- year veteran agent of the USDA whose territory covers all of the state of Tennessee and who works primarily waste, fraud, and abuse cases.
McMillan, whose answers to questions from the defense were peppered with phrases like “I don’t remember, I’m fuzzy, and I think that’s what I said” told the court how she came to look into the situation at Larry Wheelon’s training facility.
She first began to look into practices at Wheelon’s barn in 2012. She confirmed that she entered the barn while there was no one there, saw the horses in the stalls were all in leg wraps, with at least one wrapped in cellophane that was visible, and assumed, based on her previous understanding of soring, that the horses were being sored. She said that although she had a strong feeling that the horses were being sored, she did not act in 2012 because she felt she did not have enough information.
Subsequently, according to McMillan, after receiving other complaints about the activities at Wheelon’s barn, she returned to his facility in April of 2013 and entered the barn where she was once again able to view horses.
She filed an affidavit, as part of the process of obtaining a search warrant, citing two confidential informants identified as informant #1 and #2 ( #2 was later revealed to be Gino Bachmann of the Blount County SPCA). She testified that informant #1 regularly visited Wheelon’s facility and had business there, but that the informant had not been asked by her to enter the barn.
In the case of Informant #2, McMillan testified that she approached the informant and asked him to enter the facility and take pictures of the horses there. She said she also believed that this informant had some sort of business relationship with Wheelon, although Mr. White later refuted this.
McMillan testified that she did not identify Informant #2 as a current law enforcement agent, but as a former law enforcement agent, retired from the DEA. McMillan maintained that, although she did not know at the time she filed her affidavit that officials with the Blount County SPCA had police powers and were in fact considered to be active law enforcement officers, that she did not want his name in the affidavit because of his business relationship with Wheelon ( which was selling hay) and that the public had no need to know the name. She also said she felt that she and Judge Headrick had discussed this issue.
(Later in the proceedings after a 10 minute recess that turned into a 55 minute recess, lawyers came out of chambers with an agreement to stipulate testimony that Judge Headrick, should he be called to the stand, would testify that he was never told by McMillan that Blount County SPCA officers Kellie and Gino Bachmann were involved with her affidavit.)
Examining McMillan’s contention that wrapped horses caused her to presume that they were sore, White asked McMillan why she failed to tell Judge Headrick that there were other legitimate reasons for wrapping a horse when she sought her warrant.
McMillan replied that she didn’t feel that there was any legitimate reason for all of the horses in the barn to be wrapped in such a fashion since it was apparent that the horses were not in the process of being readied for transportation or suffering from any apparent health issues.
McMillan also said that she felt that Wheelon was involved in the practice of soring horses because from 1981-2012 he had a history of eight violations of the Horse Protection Act on his record as well as 14 sanctions for violations and when this documented history was combined with the appearance of horses wrapped in cellophane, she believed she had probable cause for her belief. Judge Harrington interrupted her to observe that from 1981- 2012, " if my math is correct, that covers a period of 31 years, and that is not relevant to probable cause".
At one point, Harrington admonished the observers in courtroom who had begun to noticeably shake their heads in disbelief as testimony continued.
People in the courtroom later noted that it seemed as if the judge could not wrap her head around the idea that a repeating history of violations for soring horses was a pattern of recidivism and could speak to a probable cause argument.
McMillan also stated that she did not include the information from her first visit to Wheelon’s barn in 2012 in her affidavit when she finally asked for a search warrant because, she said, she felt that she had enough new information that she did not need to include her prior visit to the facility.
McMillan did receive a search warrant from Judge Headrick. The warrant was executed, horses were examined, and then seized in April of 2013. The conditions surrounding the affidavit and the granting of the warrant became the basis for the defense motion to suppress all evidence in the case.
Dr. John Bennett, who practices in Shelbyville, Tennessee, was called to the stand. He identified himself as a graduate of the Auburn Vet School, listing all of his professional affiliations, and described himself as familiar with both Larry Wheelon’s horses as well as with the practice of soring.
Attorney White asked Bennett, “ What is a bucket stance? Is it indicative of soring?”
Dr. Bennett responded, “ It’s indicative of something, but not necessarily of soring.”
White then asked for Bennett’s opinion about horses lying down in their stalls.
Bennett told the court there could be many reasons, including horses that were cast in the stalls and that tail braces and wraps can get wrapped around the horses’ legs making it difficult to get up.
White then asked if a person were soring horses would all four legs be wrapped.
Bennett replied that , “There are legitimate reasons to wrap like treating tendons and horses are curious. They use the duct tape to keep them from nibbling at the cotton and cellophane. “
White then asked Bennett if in his professional opinion seeing horses wrapped, as had been indicated, was indicative of soring them.
Bennett readily replied, “ No. The horses would have to be examined.”
Prosecutor Dunn next questioned Bennett, asking him if he had ever testified in a criminal prosecution before , to which Bennett replied “ not that I can recall”.
Bennett further told Dunn that soring was not a common practice in the walking horse business and that he would not take Wheelon’s prior history of violations into account when determining if they could have been sored.
On redirect, White asked Bennett if he was familiar with the HPA , to which Bennett responded yes, but when asked about Wheelon’s history of violations, Bennett responded that he knew nothing about Wheelon’s violation history with the HPA.
Dr. Haffner, was the second expert witness called to the stand. He told prosecutor Dunn that he first started working in horse barns around the age of 15, cleaning stalls, that he went to college and vet school and had worked for the late Dr. DeWitt Owen, a noted equine lameness expert, before going into private practice and ultimately to his current position at the equine program at MTSU.
When asked if he had ever witnessed the practice of soring, Haffner replied , “Yes, in training barns.” He also confirmed that he had never personally sored a horse.
When Dunn asked Dr. Haffner to explain what soring entailed, the veterinarian obliged him by going into a long , involved, and clear explanation of the process.
Dunn asked Haffner if he had reviewed the search warrant. Haffner responded that he had. He asked him about the bucket stance previously explained by Dr. Bennett.
In a series of responses, the highlights from Dr. Haffner were: “Yes, a bucket stance is indicative of a sore horse…. Horses lying down, in this particular situation, are indicative of their feet hurting…. Looking at the history, the ages, the use of the walking horses ( from this warrant), the horses can be assumed to be sore… I would investigate [for evidence of] soring before I looked at anything else. “
Attorney White pressed Dr. Haffner, asking him if there were misstated facts in the affidavit used to obtain the search warrant if that would change Dr. Haffner’s opinion. The veterinarian replied with a firm “no”.
White also asked if there were other reasons why horses could be wrapped and Haffner replied “yes, but I would examine to rule out soring first. “
Haffner added that he could look at the evidence photos ( taken by Gino Bachmann) and say that the horses were most likely sored.”
Judge Harrington addressed Dr. Haffner, saying, “ You are presuming that a Tennessee Walking Horse performance barn is more likely sore than not?”
Haffner replied, “ It is almost certain.”
The Judge continued, “ Did you know that this was a Tennessee Walking Horse barn?”
Haffner said, “ I know Larry Wheelon.”
Next to be called to the stand was a witness identified as Terry Hughes, a Wheelon employee who works doing general stable work.
He testified that McMillan approached Wheelon’s barn on April 13th and that he was also there when she returned on April 17th. She drove a red truck that was “covered in walking horse decals”, he said.
Hughes maintained that on the 13th of April that the barn gate was locked, although it was later demonstrated that there was a simple latch mechanism on the gate and not a lock.
Hughes said that McMillan asked him about a house that was for rent on a hill behind the barn and that he told her he didn’t know anything about it, she would have to ask the boss ( Larry Wheelon).
According to Hughes, he went back to feeding and McMillan opened the gate and came into the barn, staying about 10 minutes. He testified that she also asked him for information about boarding a horse.
Hughes testified, conveniently in view of White’s position that Wheelon’s training barn was a private facility not a public barn that was accessible to the general public , that he told McMillan at the time , that ‘she would have to ask the boss but that the barn was a private barn for private owners and that the owners had to make an appointment to see their own horses. ‘
Hughes also told Attorney White that the Wheelon gate was always locked, except on the occasions when horses were being ridden outside.
Under questioning from the prosecution, Dunn said that he and Mr. Hughes were acquainted and he was asked if he was in court under a subpoena, which Hughes confirmed.
Dunn, then, likely noting the new convenience of Hughes’ testimony, said, “In earlier proceedings, the first time you ( were called to testify) you pled the 5th . You would not even tell the court where you were employed . You pled the 5th, but today you are willing to testify. ”
Hughes was the last witness called. The SPCA investigator, Gino Bachmann, was never brought to the courtroom.
In the end, none of it mattered: neither the horses found wrapped in plastic wrap and leg wraps bound with duct tape, horses so tender that they had difficulty standing, nor the list of chemicals found on the premises; not the indications and allegations of suspicious shoeing practices; not the variety of overweight chains and other preparations used under action devices nor the test results that came back from the swabs taken from the legs of the horses, because of the case presented by Rob White and heard by Judge Harrington.
· Rob White told the court that McMillan had acted with reckless disregard for the truth when she filed her affidavit seeking a search warrant.
· He said that his motion to suppress all the evidence collected in the case should be upheld because of that reckless disregard and that the involvement of the Bachmanns had not been stipulated to Judge Headrick .
· He said that there was no reason to presume that simply because a horse had been wrapped that it had also been sored
· He said that there was nothing to verify the veracity of informant #1 and therefore whatever he might have said should be stricken
· He said that Bachmann was an agent of the state and that his entrance into the barn was a shining example of an intrusion of privacy and should be barred as an unauthorized search.
· He said that the search itself exceeded the scope of the warrant, that swabs were taken illegally from the horses' legs and must be excluded because nothing in the search warrant allowed for swabs.
· He said that TCA section 3914.211 required that no search of livestock can be conducted without an agent or a vet present and that this had not taken place.
Although Prosecutor Dunn did respond to White’s statements, saying that probable cause did exist, that the statements made by Agent McMillan in obtaining the warrant were not misleading, that Wheelon’s place of business was in fact open to the public, and that there was no applicable case law under TCA section 3914.211 quoted by White because not until a search warrant occurs must a veterinarian or an agent be present, it didn’t add up for the judge. She demonstrated that justice is not only blind, she can also be deaf.
In the end, none of it mattered because , after two years and an indictment by a grand jury, the judge in the case, The Honorable Tammy Harrington, decided, after hearing evidence and reviewing the affidavit and the search warrant obtained by USDA agent Julie McMillan, that although horse soring was horrific and surely a crime, just like rape or sexual abuse of a child , the fact remained that people who commit horrific crimes must be allowed to walk if their rights have been violated on the way to court. Larry Wheelon, she ruled, was entitled to the one thing the trainer did not give the horses in his care, protection.
In addition to finding fault with the affidavit, she seized on the idea that Wheelon’s barn was private property, substantiated by the interesting testimony of Mr. Hughes, that it was not a place of business open to the public, and that McMillan had entered private property without a properly constituted search warrant.
Harrington upheld White’s motion to suppress the evidence. Although she told the prosecution that they were entitled to appeal her ruling, it was apparent to even the individuals sitting on the hard seats of the court house, still visibly shaking their heads despite previous admonishment, that the case was over, dead as a carp that had been cold -cocked.
An attorney observing the case said that he felt that the judge was trying to ensure that the entire walking horse big lick industry was not indicted by this situation and he also wondered how an individual like Hughes could afford legal representation from a well-known and highly paid private practice attorney, specializing in DUI cases, that charges 16K a pop for his representation in matters concerning drunk driving.
There is no way of telling how much Wheelon’s excellent defense team was paid or who paid for it. It is highly unlikely that Mr. Wheelon bore the cost himself.
There will be no argument coming from people who know Larry Wheelon that he is a hard man who has made his living in a hard business. He is also a man who has, through his documented HPA history, shown contempt for the federal law and for the government.
Comes the morning after, the 16th of May, you have to wonder if Larry Wheelon appreciates the irony that the system, which he has spent a lifetime trying to evade, is also the system that saved him? It’s unlikely , for that would require a change in his attitude and that won’t be coming anytime soon.
Although Wheelon will not have the opportunity to be found guilty of aggravated abuse to animals, at least not this time, he remains far from innocent . His ticket to ride came courtesy of the judge’s interpretation of the United States Constitution and the rules of law and procedures, combined with a defense that developed a tight strategy that kept his client from getting to trial. The system worked for Wheelon. Once again, it failed to work for the horses that cannot hire lawyers.
Unconcerned, unrepentant, unchanged; not found guilty but certainly no innocent , Wheelon is still in business. Through the law, Judge Harrington and Rob White made it possible for him to avoid the judgment of a jury of his peers. They let him walk on.