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1.21.2007

ER - National Animal group challenges Gallegos over abuse case

National Animal group challenges Gallegos over abuse case
by Heather Muller , 8/30/2006

One of many questions related to the Mad River dog abuse scandal resurfaced again late last week when comments made by Humboldt County District Attorney Paul Gallegos were challenged by the Animal Legal Defense Fund, a national nonprofit organization that works to ensure the enforcement of state and federal animal protection laws.

On Wednesday, Gallegos said in a phone interview that he stood by decisions made by his office not to file 123 charges against Roberta Bugenig that had been requested in 2004 by deputies and animal control officers from the Humboldt County Sheriff’s Office, who found at least 62 dogs and a horse living in questionable conditions at Bugenig’s Bridgeville residence.

Dozens of Bugenig’s former animals, which included horses, sheep, goats and an unknown number of dogs, died or were killed after Bugenig left Bridgeville and moved less than five miles across the Trinity County line near Mad River.

Subsequent to the move, according to the Malcolms’ defense attorney, Bugenig transferred ownership of the animals to John and Stacy Malcolm, who were charged Monday in Trinity County, along with a third subject, Roger Zampatti, with 16 felony counts each of alleged animal cruelty.

While it is impossible to know whether the filing of the 2004 charges against Bugenig in Humboldt County would have prevented the Mad River tragedy, Gallegos said charges could not have been filed because evidence in the case did not demonstrate “an aspect of intent to the neglect,” which, he said, would have been necessary for the case to proceed.

But not so, said representatives of the ALDF.

ALDF Director of Education Eileen Stark stated in an e-mail Friday that the organization could not comment on the specific merits of the 2004 case against Bugenig because it did not have access to evidence that was submitted.

“However,” she wrote, “regarding Mr. Gallegos’ comment that they couldn’t demonstrate intent in the 2004 charges, ALDF attorneys advise me that, under California law, assuming adequate evidence, an animal neglect charge does not require intentional conduct. It should be fairly easy to prove as it requires minimal criminal culpability.”

The Eureka Reporter spoke with one of those attorneys, Stephan Otto, who said that the statute under which the felony charge was requested, Penal Code 597(b), requires “a low burden of proof.”

According to Otto, “What the courts have said, and they’ve been quite clear on this issue, is that (the statute) requires proof of criminal negligence, which is the lowest level of criminal culpability under the law. It’s one step up from strict liability, in which you have to show no criminal intent at all.”

To win a conviction under PC 597(b), Otto said, the DA’s Office would have needed to convince a jury only that the conditions of the horse represented a departure from “the ordinary standard of due care,” regardless of whether that departure was intentional.

On Monday, when presented with the ALDF statements, Gallegos stood his ground.

“I know exactly what the law is, and I know what the difficulty is with those cases,” he said. “If we thought there was sufficient evidence to move forward and thought that there was a likelihood of success, we would have filed the case.”

According to Gallegos, conviction depends on the circumstances of the case and the quality of the evidence presented.

Charges requested by deputies included 61 misdemeanor violations for alleged failure to provide proof of legal rabies vaccinations, 61 misdemeanor violations for alleged failure to license the dogs, and one felony count alleging failure to care for a horse, whose poor health and substandard living conditions were graphically documented in a series of investigative reports, photographs and a videotape.

In the reports, one deputy described the horse as thin, blind and suffering from severe foot problems.

“The front feet were grown out and curved up. The (heels) of all the feet appeared to be rotted or worn off and appeared to cause pain. The horse at times appeared to be putting weight on its leg, not the hoof. The mound the horse was standing on was a buildup of manure … soaked with urine.”

The dogs, according to the reports, were living in kennels filled with mud, with 55-gallon barrels serving as shelter.

“The smallest kennel had two or more dogs in it and one barrel. Some dogs … appeared to be unable to move without extreme effort and in obvious pain,” the report stated.

The same deputy documented conditions at the Bridgeville property after the animals had been moved to Mad River.

“The pile of manure looked to be about 2.5 to 3 feet deep. I placed a 3-pound coffee can nearby in a hole where the shelter had sat, and took a picture to show the depth of the manure.

“I also took photos of the area where the kennels had been. Now that the kennels are gone, you can see how deep the mud was during the winter in the small kennel. The videotape, booked into evidence …, will show how much room the animals had inside the kennel and the barrel they had to get into.”

The horse, named Lucky, eventually died at Bugenig’s former Mad River residence. Dozens of dogs were found dead or dying at the property earlier this month, and at least 20 more, all dead, were found at two dump sites Trinity County investigators have linked back to the residence.

The ALDF contacted The Eureka Reporter on Friday, after having been contacted by Barbara Shults, director of the North Coast Animal Welfare Advocacy Center, seeking a second opinion on the legal argument.

Gallegos’ campaign Web site, www.votepaul.org, lists Shults as a supporter of his successful 2006 bid for re-election.

“I’ve been an avid supporter of (Gallegos) from the get-go, but now I’m just really disgusted with him,” Shults said Sunday.

“What kind of precedent does this set for the community? Does it tell people who might harm animals that they can get away with it?”

Under the terms of the penal code, the statute of limitations on the 122 alleged misdemeanor violations has expired, but Gallegos could legally proceed with the alleged felony.

When asked if there was a chance he would reconsider the charging decision, he said, “Based on politics? Extremely remote. But in all candor to you and everyone else, I will take another look at the file. I will look at it again based on the evidence that is available.”

But the outcome, he said, is likely to be the same.

“I will give deference to my deputy’s decision,” he said, referring to Assistant District Attorney Wes Keat, who Gallegos said originally rejected the felony case, “and I certainly am not going to make a decision based on politics.”

“It’s still not too late for Paul to do the right thing here,” said Shannon Miranda, owner and operator of Miranda’s Animal Rescue in Fortuna, and one of six people who rescued 13 surviving dogs from the Mad River property on Aug. 11.

“File the charge now,” Miranda said.

To that end, the ALDF offered its assistance.

“We urge that a very thorough investigation be performed — in both counties — so that appropriate charges can be filed in this case,” Stark wrote. “We are offering our free assistance to the prosecutors in both counties, and we are available for advice on the investigations as well.”

For information about the Animal Legal Defense Fund, visit www.aldf.org or phone 707-795-2533.

Copyright (C) 2005, The Eureka Reporter. All rights reserved.

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