Saturday, October 20 , 2018, 9:22 am | Fair 69º

 
 
 
 
Advice

Frank Ochoa: A Former Judge’s Perspective on Sentencing in Dog Cruelty Case

A defendant was recently granted probation in a case before the Santa Barbara County Superior Court that involved four felony counts and one misdemeanor charge.

The defendant “pled straight up,” that is, admitted his guilt before trial with no promise of a certain sentence in return. His plea subjected him to the possibility of up to 7½ years in state prison.

The sentencing judge had the discretion to impose such a sentence, or to grant probation. A grant of probation would subject the defendant to the imposition of that 7½-year sentence if he were to violate any of his probationary terms or conditions.

The case has received considerable public attention because it involved heinous acts of cruelty against what many consider “man’s best friend,” his dog.

That scrutiny was elevated because the case also involved a charge of felonious assault involving domestic violence.

The facts and circumstances of the case caused many among us to experience fear, anger, frustration and systemic rejection based upon our perspectives regarding this case.

Western society’s unique affiliation with the canine species can be seen in the award-winning novel, The Curious Incident of the Dog in the Night-Time, by Mark Haddon. That story centers on a teenage child with Asperberger syndrome and his effort to solve the murder of a neighbor’s dog. The novel was adapted for the stage and won a Tony Award for Best Play on Broadway just last month.

Our canine connection has deep historical roots.

The “best friend” appellation bestowed upon a person’s dog is said to stem from a trial’s closing argument, given in a small-town Missouri courtroom in 1870. A man had shot and killed his neighbor’s dog, named Old Drum.

George Graham Vest, a local lawyer who later became a U.S. senator, gave a brief but compelling closing argument at the civil damages trial regarding the death of Old Drum. He said, in part, “The one absolutely unselfish friend that man can have in this selfish world, the one that never deserts him, the one that never proves ungrateful or treacherous is his dog.”

Vest’s oft-quoted argument to the jury cannot be read without experiencing heartfelt emotion.

The unique role of dogs in the historical development of our country mirrors their role in other cultures around the world over the last 12,000 years of recorded history.

“Dogs are remarkable animals because they are uniquely sensitive to the cultural attributes of the people with whom they live,” wrote Marion Schwartz in A History of Dogs in the Early Americas.

“Not only are dogs a product of culture, but they also participate in the cultures of humans. In fact, dogs were the first animals to take up residence with people and the only animals found in human societies all over the world.”

Dogs have even carried religious significance in societies around the planet. For some cultures, they have been deemed the means of conveyance into an after-life upon the expiration of our time here on earth.

On the other hand, it is also true that some societies consider dogs to be unclean scavengers and would never consider them as pets. What is considered acceptable treatment of dogs varies in cultures around the world.

The acts constituting the crimes in this Santa Barbara matter were, beyond any reasonable doubt, unspeakably cruel and depraved. The horrific acts committed against this dog resulted in the medical decision to euthanize the animal to end its suffering.

The fact that people have renamed the dog “Davey,” the appellation given the dog by the treating veterinarian team, pays homage to that medical staff.

It was argued by the prosecution at sentencing, and many feel appropriately so, that a state prison commitment was warranted. But the known circumstances also include that the defendant had never been arrested before these events, had just reached the age of majority at the time of the crimes, and wasn’t raised in our culture.

He was also pursuing a college education, had solid family support, and was considered a low risk of continued violence of a domestic nature based on legally approved standardized testing procedures.

Two highly experienced and eminently qualified and competent county Probation Department officers had reviewed the case thoroughly, and each had, in separate reports to the court, recommended a withholding of any state prison commitment. They recommended efforts to rehabilitate and redirect the defendant through strict supervision and therapeutic requirements utilizing a probationary disposition. The judge followed their recommendation.

The judge also imposed the maximum county jail sentence of one year, which can attend a grant of probation, and ensured that the sentence would be served behind bars. He did so by immediately remanding the defendant into County Jail after sentencing.

By not allowing the defendant to appear for the sentence at a later time, the judge eliminated the opportunity for the defendant to apply for “alternatives” to confinement in jail. Defendants are routinely granted sufficient time to make such applications, given our persistently overcrowded jail conditions.

At the time of sentencing, the judge also denied a request that the defendant be allowed to delay commencement of the jail sentence for two days. The defense had made that request because the defendant’s mother’s birthday was being celebrated the day after sentencing.

The judge appears to have had reason to believe that the defendant was remorseful.

The defendant said at sentencing, “I feel terrible for the harm I caused to my ex-girlfriend and my dog, Jason ... As part of my effort to get better, I am receiving continuous treatment from a psychiatrist. I regret my actions very much. And I am ashamed of what I have done ... I understand what I have done is unforgivable, and I am extremely regretful and sorry about it.”

The defendant makes statements that appear to be evidence of his acceptance of personal responsibility for his actions. He acknowledges that his actions have interrupted his lifelong college plans and dishonored his family.

He states further, “I am very sorry for what I have done. I can only beg you for mercy.”

One can view that expression of contrition skeptically, or as a heartfelt acknowledgement of the wrongfulness of one’s conduct. If one was not in the position of the decision maker, an element of speculation enters into the process.

That judge was there to see the defendant make the statement. Given the configuration of our courtrooms, the defendant could have only been facing that sentencing judge, and no one else. The call on the defendant’s credibility and level of sincerity rested with the court.

The number of times a friend or acquaintance has asked a judge for his or her thoughts about a difficult criminal proceeding that became the subject of headlines are innumerable. For many, the response is invariably the same:

“I wasn’t in that judge’s courtroom. I don’t know all the facts. I didn’t see the witnesses testify, or observe the defendant as he entered the plea.”

It can, and has been argued that this judge’s decision was too lenient. It could conceivably be argued that aspects of it were too harsh.

We have the most complex and highly developed legal system in the world. Our civil case courtrooms are where societal disputes are resolved; and our criminal case courtrooms are where those who transgress our agreed-upon rules of conduct have their actions adjudged, and where punishment is meted out.

As a society, we empower our judges to make those difficult decisions. Those decisions are always reviewable by a higher court.

In this country, we have the freedom to disagree with each of those decisions, whether made at the trial or appellate court levels.

But we must, in deference to our compact of citizenship, give some measure of respect to the decisions made by those to whom we grant the authority to impose such life-changing decisions. They have one of the most complex and challenging roles in our constitutional system of governance.

Frank Ochoa is a former Santa Barbara County Superior Court judge who retired in January 2015 after 32 years on the trial court bench. He designed and implemented the Superior Court’s CADRe (Court Administered Appropriate Dispute Resolution) program in the late 1990s, and currently serves as a private neutral in mediation and arbitration cases. The opinions expressed are his own.

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