Legislators define “cruelty”

From ANIMAL PEOPLE, April 2000:

CHRISTCHURCH, TOKYO, OTTAWA; State Capitols, U.S.– – New Zealand, since January 1, 2000, has had reputedly the broadest-ranging and most up-to-date anti-cruelty act in the world, replacing an act dating to 1960.

Japan on December 14, 1999 updated its 1973 anti-cruelty act, enabling judges to imprison as well as fine animal abusers.

As spring legislative sessions rushed to a close, improved anti-cruelty bills appeared likely to pass in Colorado, Georgia, Iowa, and Wyoming. Bills before the Canadian Parliament and the legislatures of Kentucky, Maryland, Ohio, Pennsylvania, Tennessee, and the District of Columbia seemed to have less chance.

Seeking the first major revision of the Canadian anti-cruelty statute since 1896, Justice minister Anne McLellan on December 1, 1999 introduced legislation which would define animals as sentient beings, instead of viewing them only as property, and would increase the maximum prison sentence for cruelty from six months to five years.

Nearly four months later, however, the McLellan bill has not yet moved.

In Georgia, on the other hamd, SB 297 was due for a floor vote in the state House of Representatives just as ANIMAL PEOPLE went to press. It would create a felony cruelty penalty. Other state bills appearing close to passage included Senate File 36, in Wyoming; HB 1330, in Colorado; and a bill in Iowa to make a second conviction for cruelty a felony.

SF 36 would delete from the Wyoming anti-cruelty statute the phrase “without lawful authority,” and replace it with the phrase “with intent to cause death, injury or undue suffering,” plus a clause exempting standard hunting, trapping, fishing, farming, meat slaughter, and rodeo practices.

The Wyoming House Agriculture Committee approved SF 36 on March 6, by a 5-3 vote, at request of chairperson Carolyn Paseneaux (R-Casper).

SF 36 gained momentum after Fremont County judge Robert Denhardt invoked the phrase “without lawful authority” on January 19 to dismiss a cruelty case against horse trainer Steve Stearns, 34, of Cheyenne, because Stearns was legal owner of a horse who was killed by purported rough discipline.

Colorado HB 1330, introduced by Ken Gordon (D-Denver) initially would have introduced a felony penalty for some forms of cruelty. As passed by the Colorado House Judiciary Committee on February 17, it mandated a 60-day jail sentence for persons convicted. But as amended in March by state senator Gigi Dennis (R-Pueblo) in the Colorado Senate Agriculture Committee, it would make jail time optional and mandate counseling.

The present Colorado anti-cruelty statute allows only a fine of $500 for first-time offenders, rising to $1,000 for repeat offenses.

D.A.’s perspective

“Seek counseling” orders generally don’t satisfy experienced anti-cruelty prosecutors, including Los Angeles county attorney Robert Ferber.

California in 1998 adopted SB 1991, a bill mandating psychological counseling for convicted animal abusers, with the stipulation that counseling should be imposed in addition to jail time, not as an alternative.

“My greatest fear,” Ferber told ANIMAL PEOPLE, “is that the courts will now sentence first-time offenders to seek counseling, and not give any jail time. Traditionally, mandatory minimum sentences tend to be the sentence that the courts usually give. Now that counseling is the mandatory minimum, I am anticipating judges refusing to give jail where they otherwise would have. The compromise language in the bill forcing the judge to say in writing why jail was not imposed may have some impact, but that remains to be seen. Meanwhile, SB 1991 doesn’t really help me at all, since I and my colleagues in Los Angeles were already able to get stiff jail sentences. Counseling is great, but only for those who will benefit, and only when there is a counseling program to go to. SB 1991 is ridiculous in that it requires the impossible. There are no counseling programs for cruelty. Period,” Ferber said.

ANIMAL PEOPLE has received particulars of six cruelty sentences issued in California since SB 1991 took effect. Three offenders received jail time: 90 days, 180 days, and five years. The latter sentence was for felony cruelty done in connection with a near-fatal assault. The other three offenders drew community service plus probation. Among them were “crush video” makers Gary Lynn Thomason, 48, of Anaheim, and Diane Aileen Chaffin, 35, of La Puente, whose case inspired federal legislation against interstate distribution of “crush videos.”

While Ferber’s worst fears may not have been fully realized, his choice of possible improvements to the California anti-cruelty laws has not been realized yet, either.

“We need legislation allowing the forfeiture of animals when a case is pending, or after a conviction,” Ferber explained. “A big problem right now is that whenever there is a prosecution for animal abuse, if the animals are still alive they are housed in municipal shelters for months, maybe years at a time, waiting for the criminal case to conclude.”

Ferber took the opportunity to expound further upon what he saw as the major weakness not just of anti-cruelty legislation, but of courtroom attitudes toward animal abuse in general.

“I think prosecutors and judges all too often play Psychology 101,” Ferber said, “when they have no business expressing psychological opinions. Even with crimes more traditionally prosecuted, the criminal justice system rarely engages in serious debate as to why someone commits a crime. We just don’t know in most cases. We hear lots of educated guesses,” Ferber acknowledged, “and see lots of studies on certain types of crime, but in the end, the criminal justice system doesn’t need to know why. That’s because, in most cases, the system doesn’t have the resources or the ability to fix the offender. The options are usually either jail, a fine or community service, and probation or no probation.

“Defense attorneys like to tell us why their client did a crime to add reason to it, to support a pitch for leniency,” Ferber added. “But in most cases I’m not interested. Guessing at why someone did something is dangerous. It can be used to excuse the person, or can label someone as ‘sick,’ so that appropriate punishment is not imposed.

“I’m sure there are abusers who are doing it because of some deep hidden reason,” Ferber continued, “or some psychological reason of sorts, but as far as I’m concerned, punishment comes first. Only after the punishment can we explore treatment.”

Clout

The Ferber perspective tends to be shared by voters and politicians. Especially in election years, the voting public tends to want to see criminals hanged high, and politicans traditionally scramble to oblige them. Thus election years are usually good years in which to pass anti-crime legislation––unless the victims are animals.

Bills seeking a felony penalty for certain kinds of cruelty convictions in Kentucky, Maryland, Ohio, and Pennsylvania all seemed to be stalled in committee, as ANIMAL PEOPLE went to press, along with a Tennesee bill to recognize “non-economic” losses of up to $5,000 if pets are killed by the “unlawful and intentional, or negligent” acts of other people and/or their animals.

Animal advocates are numerous, vocal, tend to be affluent, and are even politically mobilized to an ever-increasing extent, normally the very definition of a formidable constituency.

Yet U.S. and Canadian animal advocates disproprotionately lack political clout, a variety of analysts told ANIMAL PEOPLE, as the various pending bills hit obstacles, because––unlike hunters and farmers––they don’t tend to vote in large blocks decided by single issues.

Animal advocates also tend to be concentrated in urban areas, traditionally under-represented in state legislatures.

Finally, because representatives from rural areas tend to hold office longer, animal advocates have few long-tenured sympathizers chairing key committees.

Georgia

All of the barriers to strong anti-cruelty laws became particularly evident in Georgia, where state senator Robert Brown (D-Macon) tried for the third time to pass a felony cruelty bill similar to those already in effect in 27 states.

“Although the legislation would make some types of intentional abuse of animals a felony,” complained American SPCA regional governmental affairs associate Shari Clemens, “it also contains provisions so detrimental and fraught with loopholes that any of the intended beneficial provisions would be gravely undermined. Intentional cruelty is only treated as a felony if part of the animal’s body is rendered useless, is seriously disfigured, or if the animal is killed. Cruelty is not considered a crime when a person recklessly kills an animal who dies instantly. ‘Marketing’ is listed as an exemption. This would allow people who raise fighting cocks to demonstrate the birds’ fighting ability to the death. Any method of training an animal for exhibition or competition would be excluded, no matter how cruel.”

The Brown bill, SB 297, finally cleared the Georgia senate 54-0 on February 9. The Georgia House agriculture committee approved it on February 28, after amendments to further exempt butchers, researchers, and practioners of animal sacrifice. SB 297 was then ratified by the Georgia House Rules Committee and sent to the floor on March 14.

The link

Most of the recently passed and proposed felony cruelty bills have won passage on the strength of mounting evidence that jailing animal abusers protects people, too.

“I discovered that the link between animal abuse and societal violence is causing non-animal lovers to care about crimes against animals,” Ferber told ANIMAL PEOPLE. “I don’t care why someone takes animal abuse seriously––whether it’s because they care about animals or they care about the link. Whatever works. Judges will now give jail time because of the link. We had one case where the defendant choked his girlfriend’s cat to death, then apparently sodomized the cat. He did four months in jail. Another defendant kicked a dog repeatedly in front of onlookers at Venice Beach. He did three months in jail, and had to relinquish ownership of the dog. The arresting officer adopted the dog and named her Justice.”

Anne McMillan, in presenting her proposed new Canadian anti-cruelty law, cited U.S. studies showing histories of animal abuse in the backgrounds of 48% of convicted rapists; 46% of men convicted of sexually motivated homicide; 36% of men convicted of assaulting women; and 30% of child molesters. Winnipeg police sergeant Jim McIsaac told Lynda Hurst of the Toronto Star that 70% of Canadians who have been charged with cruelty to animals have also been charged with offenses against humans.

Among high-profile current cases, the six-year-old who fatally shot first grade classmate Kayla Renee Rolland in Mount Morris, Michigan, on February 29 had reportedly joined his eight-year-old brother in tormenting a neighbor’s dog.

Gaylin Burleson, 49, was convicted on February 10 in Martinez, California, on four counts of torturing his wife, Solano County Deputy Public Defender Jane Burleson, 54. He is facing a possible third strike life prison term. Jane Burleson testified that he tortured puppies and kittens as part of his pattern of intimidating her.

Filomeno Valencia-Ruiz, 35, on November 8, 1999 received two concurrent five-years-to-life prison terms in Duchesne County, Utah, as alleged accomplice to ostrich-and-lion-rancher John R. Pinder in kidnapping and shooting Rex Tanner, 48, and his girlfriend June Flood, 59, on October 25, 1998, and then blowing up their remains with explosives. Valencia-Ruiz is also to testify against Pinder.

Stronger laws against animal abuse and possession of firearms––or better enforcement of existing laws––could have put both Valencia-Ruiz and Pinder in jail two months before the murders.

As ANIMAL PEOPLE reported in our November 1998 edition, printed in midOctober, “Investigating a report about a 500- pound lion at large, police in Vernal, Utah, on August 26 found that John Pinder, 40, and Filomeno Valencia-Ruiz, 34, had just recaptured the lion––and charged the two men with driving under the influence of alcohol, plus having alcoholic drinks open in the vehicle. Pinder was additionally charged with possession of a loaded concealed weapon, possession of loaded firearms in a vehicle, possession of firearms while intoxicated, and driving on a denied driver’s license. Other firearms charges were reportedly pending. ‘In the truck,’ wrote Connie Coyne of the Salt Lake T r i b u n e, ‘were three loaded semi-automatic rifles, two loaded handguns, nine 30-round magazines, a 50-round magazine, and three smaller magazines.’”

Hunters

If the definition of cruelty is expanded to include legal forms of killing and harming animals, such as those specifically exempted by Georgia SB 297, cruelty appears in the histories of most violent offenders.

For example, Silvio IzquierdoLeyva, 36, who killed five people at the Tampa Radisson Bay Harbor Inn on the last day of 1999, reportedly practiced animal sacrifice as a novice Santeria priest.

Donnie E. Wright and Lora E. Mosley, charged in Shreveport, Louisiana, on December 15 with beating Heather White to death 10 days before her seventh birthday, allegedly used the strap from a hunting rifle to repeatedly flog White’s body into a mass of open wounds. White was Mosley’s daughter by a previous relationship.

Men who shoot at police from inside barricaded homes tend especially often to be avid hunters––like firefighter Frederick Williams, 41, of Memphis, who shotgunned his wife of three weeks on March 8, set their home ablaze, then killed two fellow firefighters and a deputy sheriff; or cattle trucker Greg Smith, 40, of Marietta, Georgia, who on August 25, 1999 killed Cobb County SWAT team members Stephen Gilner, 32, and Steve Reeves, 35, before a police bullet felled him.

Yet another recent offender in that category was Francis Weber, 49, of Bell Acres, Pennsylvania, who on May 15, 1999 fatally shot his ex-girlfriend, Amy Beardsley, 34, at a friend’s home in Coraopolis; set fire to his own home; attempted to ambush his exwife, Rebekah Weber; fired eight shots at police; and finally shot himself.

As yet, however, neither state wildlife departments nor law enforcement has shown much fortitude about separating hunters from their guns––even when the hunters are convicted felons who by law are not allowed to possess any kind of weapon.

Minnesota law, for instance, requires that violent felons may not possess a firearm within 10 years after completing their sentence, including probation. Yet in January 2000 St. Paul Pioneer Press researcher Janet Roberts and staff writer Amy Mayron found that at least 236 ineligible felons bought hunting licenses in 1999, the use of which would require possession of rifles and/or shotguns.

One ineligible felon was Donald Albin Blom, 50, of Richfield, whose record included nine adult felony convictions. Among Blom’s convicted offenses were a 1975 aggravated assault on a 15-year-old; the 1975 kidnap/rape of a 14-year-old; a 1981 attempted sexual assault on a 13-year-old; a 1982 sexual assault on a 15-year-old; and the 1983 kidnap/ rape of a 16-year-old.

Blom on September 8, 1999 confessed to the May 26 kidnapping and murder of Moose Lake store clerk Kathlyn Poirier, 19, and to burning her body at his hunting camp. Blom later recanted the confession. Blom is also the only suspect named in connection with the torture/murder of Cally Jo Larson, 12, at her home in Waseca on April 20, 1999.

Because Blom managed to compromise much of the evidence against him with his confess-and-recant tactics, and because he destroyed most of the physical evidence, he may never be convicted of murder. On January 11, however, Blom drew 19 years plus seven months in prison for violating recently passed federal legislation barring violent felons from possessing firearms.

Testimony in the federal case established that Blom’s hunting buddies, even knowing his history, had few if any qualms about selling him any weapons he wanted. One hunting buddy, Richard Olbekson of Laporte, reportedly assured Blom that he was much more likely to get into trouble for shooting deer without a license than for illegally having a rifle.

The 236 ineligible felons possessing hunting weapons found by the Pioneer Press “may represent only a small part of the problem,” Mayron wrote. “Minnesota’s computerized records include only hunters who get special permits to hunt antlerless deer, moose, bear, or turkey,” Mayron explained.

“As a result, the newspaper was able to compare criminal convictions against hunting licenses for only about a sixth of the roughly one million hunting permits issued each year in Minnesota. Beginning in March,” Mayron continued, “a new electronic licensing system will enable the Department of Natural Resources to cross-check hunting permits with any other data base, including criminal convictions. However,” DNR spokesperson Dennis Stauffer told Mayron, “the department has no plans to look for hunters who are not supposed to have guns.”

Claimed Stauffer, “We don’t have the authority to go beyond what we do now. We follow the guidance of the legislature.”

Courtroom tests

Even when legislatures try to crack down on animal abuse, the results can be disappointing. The first felony cruelty trial in Buncombe County, North Carolina, ended with a hung jury on March 2 because nine jurors voted for felony conviction while three insisted the offense was a misdemeanor. Twice the jurors asked Superior Court Judge James U. Downs if the phrase “mutilated, tortured and killed” in the North Carolina felony cruelty law means that the defendant had to have done all three acts. Downs said it did.

More than a year after an Arizona felony cruelty law came into effect, Stephanie Innes of the Arizona Daily Star reported on March 10, no one has faced felony charges. In a February 13 case which fit the felony cruelty definition, Innes found, the alleged offender was charged only with a misdemeanor because the deputy sheriff doing the investigation used an obsolete statute book.

On March 11, Allegheny County Judge David Cashman declared part of the Pennsylvania cruelty law unconstitutional because it criminalized watching an illegal dogfight. Cashman ruled that mere presence at the scene of a crime cannot be held to be criminal. The prosecution did not immediately say if it would appeal.

Learning to win

“My experience in Los Angeles is that the single biggest problem with animal abuse cases is that they are not properly investigated to support a conviction at trial,” Ferber told ANIMAL PEOPLE. “This occurs for several reasons. First, the primary investigator is the animal control officer, who has many duties in addition to investigating animal abuse. Animal control departments are also understaffed and poorly trained,” he opined, “and don’t have time to handle enough cases to develop legal expertise. Then, when cases are properly investigated, the prosector too often doesn’t care about the crime, and either refuses to prosecute or gives the defendant some informal warning not to do it again.

“Ironically,” Ferber continued, “I think judges are now ready to give out stiff sentences, but the rest of the crimnal justice system hasn’t figured it out. Judges are elected, so they know what’s politically correct–– but prosecutors and investigators haven’t seen the light. Many may think it’s not worth the effort to pursue an animal case because only seven or eight years ago you couldn’t find a judge who would sentence an animal abuser to jail. Now they are waiting to impose jail time but we are not giving them winnable cases. That’s what I am working on most.

“In 1997 I began a city-wide effort to improve the number and quality of animal abuse case prosecutions,” Ferber recounted. “This came about after a candidate for City Attorney accused our office of not caring about animal abuse cases. My investigation revealed that there were indeed only a pitifully small number of cases being prosecuted. I found that prosecutors rarely asked for jail time, and rarely filed cases at all. I found that Animal Services rarely brought us cases. Prosecutors blamed the investigators for poor investigative technique. Investigators blamed prosecutors for refusing to file charges or seek meaningful sentences.

“Since then,” Ferber said, “I’ve been working closely with L.A. Animal Services and the Los Angeles SPCA to improve the quality of investigations, and to motivate prosecutors to file charges whenever possible and seek appropriately stiff sentences.

“One of my goals,” Ferber stated, “is to bring the Los Angeles Police Department fully into the loop, since animal abuse is a crime and they are the police, with vastly greater investigative resources than either L.A. Animal Services or the LA/SPCA. I am also hoping to get more prosecutors interested. Another goal,” he said, “is to avoid becoming the special prosecutor of animal abuse cases. We already have excellent trial lawyers throughout my office, some of whom already care about animal abuse.

“My central goal,” Ferber emphasized, “is to make the entire criminal justice system as responsive to animal abuse cases as it is now to domestic violence. I see us now as in the some place that we were in with domestic violence 15 years ago, when a husband rarely got prosecuted for hitting his wife.”

At that time, jail sentences for animal abuse were so rare that when a defendant was briefly jailed in Massachusetts, the case made national headlines.