If You See Animal Cruelty, Get Out Your Smart Phone

The primary witness at the trial of Charles Black had a view of the rear balcony of Black�s apartment in Oakland, California.  Several times he saw Black take the dog onto the balcony, yell at it, and hit it with a mop handle.  The witness said the dog yelped and cowered.  Finally he decided to record an incident:

�On June 30, 2009, the neighbor was in his bedroom when he heard defendant's voice and a dog yelping. The neighbor grabbed his camera and went to a sliding glass door from which he could view defendant's balcony. As he was filming, the neighbor saw defendant raise the mop over his head, using both hands, and bring it down on the dog. He swung at the dog �no more than three times,� each time striking the dog �across the back anywhere from the back of the neck to all the way down to the rear.� The dog was yelping as defendant reprimanded it.�

The video was not of good quality, and much of the balcony was obscured by plants.  The defendant was visible but the dog was not, though it was heard yelping at least five separate times above Black�s shouting.  The neighbor testified that he had a much better view than was indicated by the video. 

Black also testified in his own defense about the incident.  He said that he had put the dog on the balcony after it chewed an electrical cord.  He testified that the dog growled at him and that he picked up the mop to indicate that this would not be tolerated.  He admitted that the mop made contact with the dog, but denied raising it over his head or bringing it down forcefully.  He said he nor more than shoved or touched the dog. 

The witness also made a video of an incident that occurred in February 2010.  The court described this video as follows: 

�The neighbor had also recorded the February 2010 incident underlying the second count. This video was of far better quality, unmistakably showing defendant swinging a steel axe over his head and bringing it down on the cowering dog, striking the animal repeatedly. Defendant shouted angrily at the animal as it squealed in pain, in a manner identical to the cries heard on June 30.  A veterinarian's subsequent examination confirmed the dog was wounded by the strikes.�

Black was convicted and sentenced to four years in prison.  He appealed on two grounds, failure to provide a fair and impartial jury and failure to instruct the jury on the lesser included offense of attempted animal cruelty. 

Two Jurors Not Dismissed by the Court

Black argued that his right to a fair and impartial jury was violated when prospective jurors, referred to by their initials, M.P. and A.D., were not excused for cause, leaving him without enough peremptory challenges to remove Juror No. 8. 

M.P. described herself as a very devout Hindu who had been taught not to harm animals.  She said she would try to put aside her beliefs, but when asked whether she could be �completely impartial, unbiased,� responded: �Probably not for this particular case.�

A.D. said he had been abused as a child, making him wonder if he could consider the matter impartially.  He also said that he �already sided� with the prosecutor because he found the defendant�s conduct in the courtroom disrespectful, arriving late and �singing and stomping his feet� as he entered. 

Juror No. 8 spoke to the judge in chambers, which the appellate described as follows:

�[Juror No. 8] explained he was a process server who had been sent earlier that year to serve an unlawful detainer summons on a �Charles Black� at an Oakland Housing Authority building. Because this Charles Black was never at home when Juror No. 8 attempted to serve him, the juror did not know whether defendant was the same person as the subject of the summons. Although he had served residents of the Housing Authority �[o]ver 100 times,� this attempt at service stood out in Juror No. 8's memory because he received a police escort, which only occurred if �guns and/or drugs were involved in the reason for the eviction.� The juror said he would �try� not to let the incident affect his consideration of the case and promised he would not disclose it to other jurors.�

The trial judge denied �for cause� challenges on M.P. and A.D., so defense counsel had to use his two peremptory challenges to remove them.  The court also declined to remove Juror No. 8 for cause. 

To find actual bias on the part of a juror, the court must find the juror had �a state of mind� with regard to the case or the parties that prevented him or her �from acting with entire impartiality and without prejudice to the substantial rights of either party.�  (People v. Horning, 34 Cal.4^th 871 (2004))  Further:

�[A] defendant must show the use of a peremptory challenge to remove a juror who should have been excused for cause left him or her unable to prevent the seating of another juror who should have been excused for cause before a constitutional violation will be found. Because defendant does not argue Juror No. 8 should have been excused for cause, he has failed to demonstrate a violation of his right to a fair and impartial jury.�

A jury consultant once told me that the prejudices people will not admit to are more dangerous than the ones they will express.  None of the jurors who came forth with their qualms strike me as the sort that would dominate deliberations.  We are not told what other rulings were made during voir dire.  Presumably pet owners and former pet owners were excluded, but this only goes so far.  Many people who do not have pets would have them if they or someone in the household did not have allergies, or work assignments make it too difficult to care for an animal. It is hard to imagine an ideal juror from the defense standpoint for this case.

Lesser Included Offense Instruction

The appellate court also rejected the defendant�s argument that there should have been instruction on a lesser included offense, attempt to commit animal cruelty.  The trial court was obligated to give such an instruction only if there is substantial evidence upon which the jury could rely in finding the defendant guilty of the lesser offense.  The appellate court held that �there was no substantial evidence supporting a jury finding that defendant attempted, but failed, to commit animal cruelty.�

Whether to offer a jury the chance to convict of a lesser offense is often an issue in a criminal prosecution.  The cries of the dog argue that this was more than an attempt and the ruling is correct. Nevertheless, were I defense counsel in such a case, I would have made the same argument in hopes that some forceful member of the jury would convince the others that the absence of the dog in the videos means that it was only being frightened, not hit.  The jury would also have to be convinced that the neighbor was making up what his video did not show and that other explanations were possible for the injuries the veterinarian diagnosed. It would be a long shot but defense counsel in unsympathetic cases have to bet on long shots.    

Blueberry (courtesy City of Oakland, California)

Conclusion

The case was surely lost when the videos were played in the courtroom.  Their admission would have been hard to stop by defense counsel as they do not go to Black's character, or his prior behavior, but to the crimes themselves.  The testimony of the witness and the veterinarian confirmed the connection to the specific events giving rise to the prosecution. 

The judgment of the trial court was affirmed, as it should have been.  (California v. Black, 2012 WL 5264545 (Cal.App. 2012))  Black has begun serving his sentence at the California Correctional Facility at Susanville.  A short portion of the second video, the one with the ax, may be viewed on several sites, including that of Oakland Animal Services.  It is excruciatingly painful.  

Vince Faltis, who took the videos of Black and Blueberry, was given a $2,500 reward by the Humane Society of the United States.  He donated $1,000 of the reward to the Oakland Animal Shelter.    

Every day I receive emails about instances of animal cruelty from various organizations, Peta, the ASPCA, Change.org, others.  I cannot open most of them or I go into a rage that prevents me from getting anything done.  Animal cruelty is no longer being regarded as a victimless crime and sentences are beginning to reflect some value to the lives of animals that are terminated or ruined by people who still claim not to be criminals. The Fourth Circuit Court of Appeals recently upheld a sentence of five years for an individual found guilty of arranging dog fights. The sentence had been imposed by the Eastern District of North Carolina even though federal sentencing guidelines recommended a substantially shorter prison term.  (U.S. v. Hargrove, 701 F.3d 156 (4^th Cir. 2012)) The courts are getting it, at least some of them.

Thanks to L.E. Papet for comments.