CPT’s Mark Spivak recently participated as an expert witness in a criminal murder case. A 71-year old grandmother in Hart County, Georgia was taking care of her grandson, while her daughter, the child’s mother, spent time at a tanning salon. During their time together the grandmother made a stop at her house to feed two dogs that she kept in a backyard pen. The dogs enjoyed playing with the infant. Therefore, she let her grandchild out of the car to interact with the dogs. After feeding the dogs she closed the pen. She then proceeded to open the rear door to her kitchen. The grandmother opened the door gingerly and only a crack, since inside were two Pit Bull dogs. The Pit Bulls had never bitten anybody outside the family and never bit family members severely. Yet, she did not trust the Pit Bulls around her grandson. Typically, when with her grandson, she placed him in the car whenever she needed to enter her home, so that should the dogs somehow escape they would not have contact with the child. However, on the day in question she thought it wouldn’t be a problem if she just opened the door a crack while she squeezed her arm through to grab a piece of paper that was on a nearby counter.
Yet, despite her efforts to carefully open the door, the dogs, a male and a female, pushed through the crack, widened the gap between the door and the doorjamb, and bolted into the yard. The male dog instantly bit and shook the grandson. The female dog then packed, whereby both dogs repeatedly bit the young child. The grandmother hastily intervened verbally and physically. The less aggressive female dog then distanced itself from the child. However, it took the grandmother a longer time and much physical effort to remove the male dog and return him to the kitchen. When she placed the male in the kitchen, the female dog followed, whereupon the grandmother immediately secured the door and went outside to her grandson. She then promptly placed him in the car and raced to a nearby urgent care center. However, the boy’s body and head were mutilated. When she reached the medical facility the doctor rushed to the waiting area. He attended to the child in less than a minute. Unfortunately, it was for naught. The young boy was DOA due to exsanguination and shock.
The police swiftly began investigating. They interviewed the grandmother, the doctor, the child’s mother, and the child’s father. By the end of the evening the grandmother was taken away in handcuffs and charged with second-degree murder, second-degree cruelty to children, and involuntary manslaughter. The next day she was released from jail after posting a $50,000 bond. However, she realized her freedom might be only temporary. Second-degree murder, OCGA 16-5-1 (d), carries a minimum sentence of 10 years and a possible sentence of 30 years. Felony cruelty to children, OCGA 16-5-70 (c) carries a minimum sentence of 1 year and a maximum of 10 years. Involuntary manslaughter, OCGA 16-5-3, may result in a prison sentence of 1 to 10 years.
The incident occurred in August 2017. For 7 months the District Attorney was intractable about allowing a plea to a lesser charge. He remained relentless about seeking a murder conviction. In March 2018, one week before the trial date, the lead defense attorney contracted with CPT to provide expert services. CPT’s role was to analyze the history and behavior of the dogs, the husbandry practices of the grandmother, the actions of the grandmother on the day of the incident, standard husbandry practices, local animal control laws, the specific criminal statutes upon which she was charged, and any other information pertinent to the dogs, the grandmother, animal behavior, or legal precedent for the purpose of achieving exoneration based on issues of fact or law. CPT wrote a thorough case analysis based on available documents, participated in strategy meetings with the legal team, and was prepared to testify at trial.
The focus of the Defense strategy was based upon the State’s burden of proof (beyond a reasonable doubt) and the definitions inherent to each charge. 16-5-1 (d) states that “a person commits the offense of murder in the second degree when, in the commission of cruelty to children in the second degree, he or she causes the death of another human being irrespective of malice.” Thus, although the second degree murder charge imposed the most serious penalty, it was secondary to the felony cruelty to children allegation, as the former can not occur without a conviction in the latter.
16-5-70 (c) states “any person commits the offense of cruelty to children in the second degree when such person with criminal negligence causes a child under the age of 18 cruel or excessive physical or mental pain.” The issue of excessive physical or mental pain was inarguable. However, the issue of criminal negligence was certainly open to interpretation.
Criminal negligence, 16-2-1, defines a crime as “a violation of a statute in which there is a joint operation of an act or omission to act and intention or criminal negligence.” The statute defines criminal negligence as “an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.” Not even the gung ho prosecutor accused the grandmother of willful and wanton conduct. Yet, recklessness remained open for question.
Recklessness has legal definitions that vary from state to state and a general legal definition. OCGA 16-5-60 (b), defines Reckless Conduct as when “a person who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.”
In law a criminal act must have both an actus reus (guilty act) and a mens rea (guilty mind). To have one without the other would not constitute a crime, except in cases of strict liability. The Modern Penal Code defines the multiple levels of mens rea, as negligence, recklessness, knowingness, or purposefulness (intent), where each is respectively correlated to an act of greater severity within the law. Negligence is when a reasonable person should have foreseen a substantial and unjustifiable risk and that actions will lead to the result, whereupon the actor may not have been aware of the risk but should have been. Recklessness is when the actor consciously disregarded a substantial and unjustifiable risk and its associated outcomes. Knowingness is when the actor is aware with great certainty of the risk and that the action will lead to the outcome. Purposefulness is when the actor is aware of the risk and intends for the outcomes to result.
Given that prisons are overpopulated, whereby truly bad people are released early on probation, we did not see the logic to populating a Georgia prison with a 71-year old grandmother who with good intent meant to take care of her grandchild and who by witnessing the horrific event already paid a penalty far greater than any that could be levied by the State. Moreover, imprisoning the woman was not going to keep the citizenry any safer, especially since the dogs were euthanized soon after the incident, and it would be burdensome for the taxpayers to finance $45,000 of annual room and board for someone who did not perform an illegal act and who did not have a guilty mind.
Thus, our legal strategy focused on dispelling the prosecution’s argument of recklessness, as without recklessness by law there could be no conviction. The CPT expert report argued that the act of opening the door a crack was an act to mitigate risk, not to accept risk. Thus, the grandmother did not disregard risk, she acted in a manner to consciously reduce risk. Moreover, her actions were those of a reasonable person and standard practice for many dog owners who have concern regarding the potential actions of their dogs. Therefore, the Defendant did not grossly deviate from the standard of care expected of a reasonable person, nor did she deviate with less than gross magnitude. In fact, she acted in a reasonable manner duplicated by many persons that CPT has observed in our 26 years of business. Consequently, in this circumstance, her actions may be legally construed as careless, but they do not fit the general legal definition or the Georgia statutory definition of reckless behavior.
Moreover, her specific action of opening her own door was not an illegal act and her dogs were not classified by the State as vicious or dangerous, whereby husbandry practices needed to deviate from those applied to the average pet dog. Accordingly, there was no strict liability.
After submission of the CPT report to the legal team and a video conference to revise strategy, the legal team scheduled a meeting with the District Attorney. However, this time the District Attorney started to doubt his case. He realized that after CPT’s testimony it would be difficult to secure unanimous juror opinion that beyond a reasonable doubt the Defendant acted recklessly. Although he refused to discuss a plea for 7 months, 2 days prior to trial he agreed to dismiss the murder and cruelty to children charges and have the Defendant plea to a misdemeanor involuntary manslaughter charge with a suspended sentence and no jail time, which we considered a victory. Thus, we presented the plea to the client, who accepted the terms of the plea. The attorneys concurred that equivalent pre-trial plea results would have been unlikely without the inclusion of CPT to the legal team.