040: Shaggy Dog Story

Stella Case No. 040, Originally Published: 5 March 2003

In February 2000, Sara McBurnett bumped into an SUV on a freeway onramp in San Jose, Calif. The driver of the SUV came to her window, and she rolled it down to apologize to him. But the enraged man reached into her car, grabbed her pet dog “Leo” from her lap, and threw the animal into freeway traffic where it was run over and killed as McBurnett watched in horror.

The police sketch aiding the manhunt, and Leo the Bichon Frise. (Family photo)

The man fled, and his cruel actions sparked international headlines — and a manhunt. Private donations poured in, totaling more than $100,000 in rewards to help catch the road rager. Andrew Burnett, 27, was eventually identified as the man in the SUV; he was convicted of felony animal cruelty and, in July 2001, given the maximum sentence: three years in prison.

Less than two years later, from his cell, Burnett has found a way to make his rage reach back out into the real world once again. He has filed a lawsuit claiming McBurnett slandered him in her statements to the police and the San Jose Mercury News newspaper, and claiming that the newspaper libeled him by “knowingly and maliciously” printing those “defamatory” remarks which, he claims, created the international furor over what he did that rainy night. That, he says in the suit he filed without an attorney, caused him “mental pain and anguish, humiliation, embarrassment, fright and shock, and mortification,” plus post-traumatic stress disorder and loss of wages. For all that, Burnett demands more than $1 million in compensation from McBurnett and the newspaper.

By abusing the civil courts, violent criminals no longer have to be satisfied with causing mental pain, anguish, fright, shock, and mortification while they’re loose on the streets, since once they’re imprisoned they have all the time in the world to do it all over again — by suing their victims for reporting their crime or some other made-up slight. Crime victims are fearful enough; convicted criminals must lose the right to sue their victims, or society will suffer when victims begin to think twice about reporting crimes to the authorities.

Source

  • “Leo the Dog’s Killer Claims Mental Anguish in Suit,” San Jose Mercury News, 28 February 2003

Case Status

Andrew Burnett wasn’t done with his efforts in court: he appealed his sentence, claiming the trial court erred in admitting into evidence that he had beaten a stray dog to death in Puerto Rico in 1995 while serving in the Navy(!), “insufficient evidence,” and apparently several other technical points.

The judge rejected all of his arguments, using words like “absurd.” Ms McBurnett’s attorney, Marc Garcia, had commented at the time of his conviction: “Andrew Burnett will forever be known as the person who took a defenseless dog and threw it into traffic.” And so that stands today.

As for his lawsuit, I found mention after mention along the lines of “of course the judge threw the case out,” but never any mention of what judge, in what court, or when. But there are enough that I’m concluding “dismissed.”

Source: “California Court Rejects Appeal by Dog Killer”, Reuters, July 22, 2003

My 2020 Thoughts on the Case

This case isn’t really about the dog, it’s about vicious, abject cruelty — to the dog, sure, but even more so to Mrs. McBurnett (and what a bizarre name coincidence: Burnett vs. McBurnett). During his criminal trial, Santa Clara County Superior Court Judge Kevin J. Murphy rejected Burnett’s defense claim that the dog’s death was an “accident”(!). “To describe his story as unbelievable is being polite,” the judge said. “It is insulting to my intelligence. It is insulting to the intelligence of anyone who thinks. It is preposterous.” In addition, “The crime in this case involved a high degree of cruelty, viciousness and callousness,” Judge Murphy said. “It’s a case that needs to be dealt with harshly.” Hence the maximum sentence he could dole out: 3 years, which was greeted by cheers by observers in the gallery.

So then suing his victim (plus a deep pocket)? Just more of the same, and a clear demonstration of Burnett’s overall character.

There’s a terrific write-up by producer Ken Berry at KGO Radio in San Francisco about how he had the idea to get that large reward fund going. It’s in his blog, Covering the City.

Letters

A couple of readers have asked why — when I have the letters for each case from the newsletters from Way Back When — don’t I include the letters with the case in these reposts?

Two reasons: first, this is the way the original newsletter readers had to consume the cases and the discussion back in the day. Second (and more importantly), I want readers to have a chance to comment on each case without the influence of opinions expressed more than 15 years ago.

That said, I’ve swapped the position of my current thoughts on the case presented with the letters so that all of the featured case’s material is together, rather than interrupted by letters that don’t specifically pertain to the case. I’ll be working backward to make that change in all of the previous case posts.

Reader reaction to the American Trial Lawyers Association’s disingenuous dig at TSA is a must-read attachment to Case 039.

Within hours of that issue coming out, ATLA, apparently under a barrage of criticism from TSA readers by email and phone, updated their web site to remove that “bizarre” slap. They have not, however, changed any of the rest of the shrill arguments on their page, such as the claim that “things like the ‘Stella Award’ aren’t just cute or harmless jabs at trial lawyers and our legal system. They clearly are part of a massive disinformation campaign designed to undermine Americans’ confidence in our legal system and to benefit powerful corporate interests at the expense of average people harmed by corporate wrongdoing and indifference.”

Wow, I had no idea that I was part of a vast conspiracy to undermine the entire American legal system! I can’t believe I’ve been missing those planning meetings. Seriously, TSA is completely independent. My statement on the subject is here.

ATLA concludes on its page, “We’re ALL responsible for getting the truth out.” So very true; my question to ATLA, then, is When are you going to start?

Next, Case 039, about a bar owner who set up a trap after being burgled numerous times. The bar owner was cleared by the police, but the burglar’s family sued and won. My concluding question to the case was, “When someone takes it upon themselves to commit a felony, shouldn’t they be 100 percent liable for what happens next?”

Ray in California: “That sounds like it could condone a kind of vigilantism — ‘Warning, if you break in to this house, you will be severely tortured.’ If someone drops their wallet in the course of robbing my house, am I then free to max out their credit cards? Take down their address and rob *their* house? Someone who commits a felony should expect a response that is commensurate with the crime. An intentionally lethal response to burglary is not commensurate.”

First, it is not established that the bar owner intentionally set up a lethal response. Second, robbing a house is not only a crime, in the scenario you suggest it’s obviously intentional. And third, as stated in the case, state law in Illinois specifically allows lethal force to be used to defend property. You may consider that barbaric, and that’s fine — but it is the law there. The argument ends up being whether it’s reasonable for a lethal trap to be set, rather than the bar owner (for instance) sleeping in the bar with a shotgun at his side. The choice he made was, I agree, a poor one.

Quite a few attorneys wrote responses, but most were so long that I can’t even consider putting them here. But one defense lawyer was succinct:

Susan in Washington: “[The answer] depends on whether you consider the death penalty an appropriate sentence for burglary. If so, then we just part company. If not, do you really want to live in a society where individuals can inflict a harsher penalty for crimes (and without benefit of trial) than the system can? Do you want a society that has no sanctions against those citizens who choose to do so?”

While the source story was completely unclear on the intentions of the now-dead bar owner, I think it’s pretty unlikely that he meant to kill any intruders. Was he stupid to set up what turned out to be lethal? Sure. But if the “victim” had not chosen to commit a felony and break in, he wouldn’t have been subject to that stupid action. Where does the “fault” (between the bar owner and the burglar) cross?

The jury apparently thought that cross was at the half way point; it held each 50 percent at fault. Most readers thought somewhere else.

Navelle in Texas: “I would very much like to see a law passed to the effect that if a person is killed or injured while committing or attempting to commit a felony, neither he nor his family shall be entitled to any award for damages. Crime has traditionally been a high risk occupation, and it is not in society’s best interest to make it less so.”

Danny in West Virginia: “[The burglar] chose a high-risk occupation, and did not have the training, skills or aptitude for it. And he attempted to work while his brain was gently sizzling with recreational chemicals. And he was only 50% responsible in law!? Laws and common-sense are often far apart.”

Brian in Ohio: “When someone enters a building (especially a private home) illegally, I think they should have no legal expectation that they will emerge unhurt, or even alive. The idea that I should be legally required to take into account the welfare of illegal intruders within my own home is beyond absurd. In my house, the safety and security of MY family and MY property are my priorities; criminals can stay safe by staying OUT. It infuriates me that people even succeed in FILING such lawsuits, let alone winning them.”

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6 Comments on “040: Shaggy Dog Story

  1. No mention of the felony murder rule. When you commit a crime and someone dies, you are the murderer even though you did not, say, shoot the gun. The shooting is a response to the crime, not the cause.

    Good point: I guess that gives a legal basis for my contention that felons should be responsible for what happens as a result of their crimes. Here’s an example of an appeals court upholding a murder conviction for a criminal who did not kill anyone himself — but his partner in crime did. -rc

    Reply
  2. For Susan: I see it as a sliding scale. Where the police are adequately funded and the courts do their job, of course burglary does not deserve the death penalty. But when the police are defunded, and a DA refuses to prosecute breaking and entering like as has been happening in Portland, Oregon as of late, vigilante self defense by murder is the last form of justice available to property owners in a system that has let them down– and thus, such justice is reasonable to expect.

    I most certainly do not see punishment for crime as being unjust, and that is where we certainly do, in your estimate “part ways”.

    Reply
  3. Lethal force is one thing, booby traps are something else. Typically, prosecutors have frowned on that. However, leaving the family of the bar operator on the hook is kind of unfair. A shame that they did not get the estate settled quickly and point out that there’s nothing left in the estate and the award is being filed too late.

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  4. Regarding case 039 A Shocking Conclusion.

    In my country setting a trap, any trap that can endanger life or cause bodily harm is totally illegal under The Department of Labor’s Health and Safety laws, as well as some other laws.

    The thing with a trap is that it can injure or kill an innocent agent such as a fireman entering the building to fight a fire. There are real cases of fire fighters being killed or harmed by traps. Same with policemen entering a building for some legal (or illegal!) reason and children setting off such traps. I find it strange that Americans don’t see the the setting of traps in this light.

    I find many aspects of American jurisprudence very strange. It boggles the mind that awarding penalties and damages in a manner like this case could even be possible. But in America it seems to be the norm. It reminds me of a case in the USA where a burglar got entry to the gym on the 3rd floor of a school by climbing the gutter and entering through the small top window. He lost his balance and dropped in into the gym. He was discovered the next day with serious injuries. The school was held culpable and had to pay the burglar compensation!

    It is interesting how various jurisprudences interpret accountability. An amusing comparison is how the South African law and the British law treat liability regarding dogs. In South Africa we are required to keep our dogs behind proper fences, and if they could be dangerous, as we usually hope they are, we put up a big notice in three local languages “Beware of dogs, do not enter!!!” So if you enter such a property you are held accountable for whatever the dog does to you, and that’s it. It must be added though that if the owner let you into his property he is responsible for your safety and protection against his dogs.

    But in England if you put up warning signs you admit that you are the owner of a dangerous dog and you will be responsible for everything your dog does. So the owners usually wait until the first time the dog bites someone. Then the owner pleads he didn’t knew his dog would be dangerous, thus he is found innocent. Only then he is ordered to put up warning signs — and if his dog attacks someone on his property he will now be definitely be culpable for injuries because he now admits in writing (the warning sign) that he knew his dog was dangerous.

    The only thing I’ll disagree with is “in America it seems to be the norm”: if it was, I wouldn’t be writing about it as something crazy. -rc

    Reply
    • I think many Americans find “many aspects of American jurisprudence very strange”. But remember, most of our laws are written by lawyers who either might have been trial lawyers or get influenced by them. Some laws appear to have been written specifically to protect lawyers.

      Part of the flaw in our system is the cost to get reelected and another part is how much influence lobbyists have depending on how much money they contribute to a politician’s reelection. We have a law forcing us to buy energy efficient light bulbs that have mercury in them. The package the bulbs come in says when one is broken to open all of the doors and windows in the room, then to leave the room immediately and to stay out for 30 minutes. How much energy will be lost in 30 minutes during a heat wave in the South or a blizzard in the North of America? The only “winner” in this seems to me to be the light bulb manufacturers and the politicians who were paid to pass this law.

      LED bulbs are much better than CFLs anyway. -rc

      Reply
  5. I agree that throwing the dog into traffic was the absolutely wrong reaction. However, I think you should have at least pointed out that driving with a dog on your lap is not safe and in this case may have contributed to the “bump”. Anything that distracts a driver is inherently unsafe. Furthermore, if she had not had the dog on her lap, Burnett could not have grabbed it. I am not trying to excuse Burnett’s actions; only suggest that you missed an opportunity to point out what an obliviot Ms. McBurnett is.

    I didn’t point it out because there is no mention in my source materials that the dog was in her lap while she was driving, and I stick to the facts I have. It could well have been lying on the passenger seat, but came over to look out the window because she stopped, opened her window, and was talking with someone. -rc

    Reply

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