Update April 17, 2008; 11:00 p.m.:
Press reports after the below column went to press have made an issue of the fact that Burke's own dogs have been the subject of some past complaints. (Burke also has a young 3-year-old child at home.) My initial thought is the fact that Burke may or may not have rambunctious dogs (or for that matter may or may not have a rambunctious child) is really not that much of an issue. But I will, of course be closely monitoring any further developments.
Burke’s opinion in ‘State v. King’ worth reading
By Mark A. Cohen
In these days of nonstop political pressure to circumscribe judicial authority with mandatory sentences and similar discretion-limiting devices, I can think of no better poster-child case for letting trial court judges do what we pay them to do than Judge Kevin Burke’s eloquent opinion in State v. King.
The Hennepin County decision was issued on April 11 in a much-publicized prosecution of a Zachary King, who was charged with second-degree manslaughter after his child, Zach Jr., was killed by a family pet.
Zach Jr. was one of four young children in the house who shared quarters with two full-grown pit bulls and five pit bull puppies. Before the fatal attack, the pit bull involved, named “Face,” had been involved in three biting incidents, including one with Zach Jr. However, the dog was never declared a dangerous animal and the child’s parents were not told to destroy it.
The state decided to prosecute King for the death of his child. Specifically, the state contended that King was guilty of violating a state law that makes it a crime for someone to cause the death of another by negligently failing to keep properly confined any animal the person knows has vicious propensities.
The entire case wound up bubbling down to whether the prior bites put King on notice that Face had vicious propensities.
“What happened in this case was a horrific tragedy,” Burke’s meticulously crafted opinion begins. “Although the statute with which Mr. King was charged with violating has rarely been used, it is understandable why the Hennepin County Attorney’s Office decided to prosecute Mr. King. When a tragedy like this occurs, all of us want to find a person and hold them accountable. With hindsight people never mistakes. With hindsight Mr. King and his wife painfully understand that having four young children, two pit bulls and five pit bull puppies simply makes no sense.”
Burke goes on to recite the facts, some of which favor King, others of which favor the state. The judge paints a portrait of a loving family dealing with a tragic set of circumstances. He compliments the prosecutors on a well-done and professional job in presenting the state’s case.
Burke notes that Dr. Petra Mertens, a well-regarded veterinarian with expertise in dog psychology, testified that no child between the ages of 7 and 12 should be left alone with a dog because every dog has the potential to bite children. This is especially true with young boys, the doctor reportedly said.
“Dr. Mertens’ advice is wise,” writes Burke. “After Zach Jr.’s death, Hennepin County Child Protection, Mr. King, [his attorney, Craig Cascarano], and the Hennepin County Attorney’s Office all sought Dr. Mertens’ advice. Unfortunately all of that occurred too late. Zach Jr. was dead.”
After weighing all the evidence, Burke decided the case on the basis of reasonable doubt, concluding that the state had not met that high standard.
“Given what happened in this case there is no victor,” Burke writes. “A child is dead, his siblings and parents are traumatized, and a lot of people who never knew these people are bewildered and wonder how can this happen?” Who is responsible?”
Those are haunting questions indeed. None of the medical professionals who treated the pit bull bites thought to tell the family to destroy the dog. The insurance company that paid out a bite claim also made no such recommendation and did not raise rates to such an extent to get the family’s attention. The city of Minneapolis never followed up and went through the process of having the dog declared dangerous.
Do we blame all of them? Some of them? None of them? It’s difficult to say.
These are the kinds of cases that can really make you toss and turn at night. Most of us know we won’t commit some sort of horrific intentional crime, but it is altogether too easy for some thoughtless bit of negligence to turn tragic. We make mistakes all the time, and usually the consequences are light. What a nightmare it must be when those mistakes lead to horrific results. I think about that every time I hear about a busy parent who forgets his or her baby is strapped into the rear car seat on a hot July day.
I feel a little better to know there are judges like Burke on the bench who will take a thoughtful approach to such cases. There will be times when criminal punishment is warranted for mistakes, and times when it isn’t. I accept Burke’s verdict that this particular case falls into the latter category. But, despite the favorable result for the defense, I have to agree with the judge’s observation that this is a case without a winner.