Jerry Yates daughter, Jami Southard, and flowers placed where his life ended.
Dead Men Tell No Tales archived
Calaveras County, CA - On March 22, Recordnet.com reported that Calaveras County Superior Court Assigned Judge Thomas A. Smith ruled that Sheryl Sellers would not face trial on felony charges after the mauling death of Jerry Yates. The judge cited California Penal Code Section 399, which requires prosecutors to prove that the person killed by vicious dogs took "reasonable precautions" to avoid harm. (This bizarre law places the burden of proof upon the dead victim.)
"There's a failure of any actual evidence as to what precipitated the attack," Judge Smith said. "What reasonable conduct did he engage in?"
Upon learning of this stunning injustice, DogsBite.org wrote to Yates' daughter, Jami Southard, expressing our great lament. Several other persons were included on this email's CC list. One of them was Kory Nelson, Senior Assistant City Attorney for the City and County of Denver, who had previously provided ideas to help Southard's family wade through recourse issues on behalf of himself not his office. After Judge Smith's ruling, Nelson replied to us with the following:
"California Penal Code Section 399 - requires prosecutors to prove that the person killed by vicious dogs took reasonable precautions to avoid harm"
While I am not an expert in the California Penal Code, and I am unaware if any other section would be more applicable to these facts, this overview of the law is quite disturbing for a number of reasons:
- I know of no other criminal law that requires victims to take any action to avoid harm before the defendant can be convicted; a victim is a victim. Imagine if other criminal laws also put such a burden upon potential victims? What did the alleged victim of rape do to prevent being assaulted? What did the victim of the drive-by-shooting do to prevent bullets from penetrating their home? Did the pedestrian even attempt to jump out of the way of the car that ran the red-light? Did they jump in the correct direction - or high enough?
- Dead men tell no tales. This law gives an advantage to those dog owners whose dogs actually kill, rather than merely maim or seriously injure, their victims. The law should never bestow a benefit upon a party for the infliction of a greater harm upon another party.
- What if the victim were a child or an infant? How could such a victim take any action to avoid harm, let alone those that a trier of fact could be deemed to be reasonable? For every action of a child, I could pose a legal argument why their action was not reasonable:
- The child attempted to run away from the dog [The child's actions sparked the dog's natural instinct to chase]
- The child screamed [The child's action scared the dog, causing it to bite out of fear]
- The child stepped on the dog's tail [natural reaction to pain]
- The predictable debate over the term "reasonable precautions" fails to set the legal parameters for a jury to determine the outcome. Should the term be viewed from the perspective of the innocent actor who is completely ignorant of animal behavior - or from the perspective of the expert animal behaviorist? As described above, in the face of an aggressive dog, animal behaviorists would probably advise against turning and running away from the dog, as such behavior may spark the dog's natural instinct to chase its prey. However, a child or even an adult who has not had a significant amount of exposure to dogs may be understandably ignorant of such recommendations - therefore, would the dog owner's attorney be allowed to call expert witnesses to testify before the jury about such "common sense" dog behavioristics, such that the attorney would be allowed to argue the victim "caused" the attack by running away - an "unreasonable act" from the perspective of the highly educated expert?
- Americans who, for whatever reason, are either unfamiliar with dogs - or who choose not to have dogs as pets - should not have their health, safety or welfare protected to a lessor standard merely because the party who brings a dangerous animal into their community would like to avoid their legal duty of protecting their fellow citizens from the dangers of their poor choices and/or poor animal management techniques. I'm certain these owners of dangerous dogs would like to displace their guilty and legal duty by shifting the duty of protection from the owner and manager of the dangerous implement to the innocent victim. Shame on the lawmakers for allowing such a perverted system of justice to allow innocent victims to be so unjustifiably exposed to such horrible dangers as a tenacious and vicious mauling by animals with sharp teeth who will bite and rip their victims bodies to shreds - the most horrible way for a human to die imaginable.
In conclusion, this law, if reported accurately in the news article, is a travesty to justice and should be changed immediately.
While it may be one thing to provide a legal defense to dog owners such that a child or adult who is physically abusing the dog, or is actually engaging in an unlawful act against the dog's owner - such as assault, or burglary, would not be protected by such a law - but is something completely different to place a legal duty on children and adults to take affirmative action to prevent the harm reasonably foreseeable by the dog owner. Maybe Lewis Carroll could appreciate the topsy turvy nature of this law - but it makes no logical sense to the rest of the world above the rabbit hole.
Kory Nelson, Esq.
DogsBite.org greatly thanks Mr. Nelson for his thoughtful and informative response. Most persons do not work within the legal system nor can we easily articulate the meaning of such a bizarre law or Judge Thomas A. Smith's interpretation of it. DogsBite.org grieves for Jami Southard and her family and most especially for Jerry's widow. We encourage all readers who have not yet watched the Calaveras Enterprise video, "Fatal Pit Bull Attack - A Closer Look" to watch it below.
Fatal Pit Bull Attack - A Closer Look from Calaveras Enterprise on Vimeo.
10/13/10: Video: Calaveras Enterprise Examines Pit Bull Victim's Last Steps
09/17/10: 2010 Fatality: Mountain Ranch Man Mauled to Death by Two Pit Bulls
That's sick-that's just plain freaking sick.
Can you imagine a human murderer beating the rap because his victim didn't take adequate precautions to protect himself? Or a rapist getting off because his victim didn't take the appropriate steps to protect herself, or the way she dressed set off the dirtbag rapist? This one takes the cake. These dogs need to be banned forever. And the owners of these dogs need to be thrown in prison.
We need to get this judge removed from the bench. His decision is immoral and wrong, no matter what the freaking statute says.
remove this judge and overhaul dog bite laws.
The message is very clear to all landlords, property owners, and homeowners.
You MUST NOT allow anyone with pit bulls to be anywhere on your property at any time.
Call the police and file charges if anyone with pit bulls brings them or allows them on your property. Zero tolerance. Make sure tenants are aware in writing that no pit bulls are allowed, even visiting. Post "No Pit Bulls" signs.
Do not allow anyone with pit bulls to visit, be a guest, loiter on your property.
Those are the best precautions you can take. The law is telling you that you must do these things.
It is clear that some percentage of corrupt judges will decide that you the property owner using your property normally are to blame for those that have fighting breeds that they know are vicious.
Zero pit bill policy. Best precaution in the world.
The California law is telling you that you must do this. Zero pit bull policy on your property.
Does anyone know who put this law in place and why it was, when? Were dog fighters involved in this?
This is a "law" that removes civil rights, and is constitutionally illegal.
Look up "peaceful and quiet enjoyment" of one's property. This fake "law" attempts to negate that. Illegal.
The family of this victim must sue both the pit bull owner AND the town or county that failed to control the vicious dogs that the owner acknowledged in a public meeting to be vicious.
The town or county has blood on its hands. Animal control helped kill that man.
There must be documentation in court to prevent this murderer from murdering again, and to prevent the town or county from helping to hurt or kill another.
Calaveras County has a history of losing lawsuits based on victimizing residents
Judge Thomas Smith of Calaveras County has been implicated in aiding other murderers.
Judge Thomas A Smith's background is "business administration" and "business law."
He started as a business man, NOT a judge. He's a BUSINESSMAN.
Commitment to justice? Far from an unblemished record.
It looks like the "business" of breeding game dogs and the business of the fighting dog industry had a friend in Calaveras County California courts.
Money and "business" trumped civil rights.
"STATEMENT OF CANDIDATE FOR
JUDGE OF THE MUNICIPAL COURT, OFFICE NO. 2
THOMAS A. SMITH AGE: 45
Occupation: Municipal Court Judge
Education and Qualifications: I have resided in El Dorado County for 36 years, attended local schools, and graduated with honors from California State University, Los Angeles (BS, Business Administration) and McGeorge School of Law. I have been an attorney since 1975, worked for the district attorney, and taught business law for Sacramento City College. I have a clean and unblemished record, personally and professionally.
With 19 years judicial experience, including 8 years as your municipal court judge, I have earned endorsements from my colleagues, district attorneys, and law enforcement officers, received recognition for efficient court management, demonstrated fiscal responsibility toward the taxpayers, and established a record of commitment to justice for all persons who utilize our court.
Last year, I was elected presiding judge of the county's unified superior and municipal courts. I was appointed to the Judicial Council's Advisory Committee on Administration of Justice in Rural Counties. I have served our community as a volunteer fireman, big brother advisor, lawyer's referral service director, law library commissioner, and Marshall Hospital Foundation trustee.
I will continue to make unbiased judgments and insure criminal defendants are appropriately detained in custody, tried fairly, but upon conviction ordered to make restitution and sentenced so that public safety is protected.
s/ Thomas A. Smith"
CORRUPT JUDGE ALERT!
Public Admonishment of Judge Thomas A Smith, November 25, 1996 when he was in El Dorado County Municipal Court prior to coming to Calaveras County court.
Judge Smith abused his judicial office in 1995 when he utilized the court's computers to obtain for and disclose to a friend confidential information from computerized records of the Department of Motor Vehicles.
Smith therefore lied in his public statement that he had an "unblemished record." Another crime.
The family needs to file complaints with the state judicial board and demand a retrial with a non-corrupt judge.
A judge who has committed crimes, aided and abetted others to commit crimes, has no business adjudicating a criminal case as his bias for criminals has been demonstrated by his own criminal behavior, and his collaboration with another to commit a crime.
"Using the power of the bench to benefit a friend is a casebook example of wilful misconsuct."
What family, social, political, or other relationships has Thomas A Smith, businessman cum judge, engaged in to help a game dog breeder and the fighting dog criminal industry in this case?
This is indeed a CRIME, ciommitted by a judge in court. A judge who has admitted to crimes and "lapses in good judgment."
I ran some quick Google searches on Calaveras County Superior Court "Assigned" Judge Thomas A. Smith (assigned by who?). It's hard to say what is going on in the Yates case, but it certainly appears that something political (or under-the-bench) has occurred.
Smith's ruling, which may or may not be the "true spirit" of California Penal Code Section 399, showed that according to Smith, dead victims are presumed guilty of causing a fatal dog attack when no other witnesses are present. According to Seller's attorney, Ken Foley, with whom Smith agreed, one must give the benefit of doubt to the maulers: [What if these two dogs were fighting amongst themselves and Mr. Yates came out of his shop to break it up?" Foley said…] Which leads us to Mr. Foley, who has been a pompous ass since day one.
Gotta wonder how many cases Foley has won in Smith's courtroom, particularly when Smith has been "assigned"?
I imagine such assignments are like a REAL LOTTERY in Calaveras County, which only has one incorporated town.
And poor little Sellers, who stated in a Calaveras County courtroom in 2006… [after Blazej told the board about the incident where he and his family were threatened by a group of pit bulls, Sellers shouted out from the back of the room that those pits couldn’t be hers, because if they were, “You wouldn’t be standing here.”] …she knew just the right attorney for her case didn't she?
Cynthia Chilton Hauck, mouthing fighting dog industry propaganda to protect fighting breeds in a bizarre email to the Calaveras County paper trying to protect her "friend" Sellers?
Apparently this woman is quite outraged when her property values are threatened, but feels the need to protect someone whose known vicious dogs killed an innocent victim.
But then Cynthia Chilton Hauck is SHERYL SELLERS' MOTHER!
Sellers father was a manager at San Francisco General Hospital who was interested in UFOs. Died 2003.
Cynthia's current husband is/was in the petroleum business. A BUSINESSMAN. Harlond Hauck, who appealed a conviction when he lived in New Mexico for aggravated battery for kicking a woman in the back, causing her injury.
Photo of the pair mentioning his home town of New Mexico.
Here is the "spirit" of the California law (from Dogbitelaw.com). I've bolded the areas that Judge Smith cherry picked out:
"A person who knowingly keeps a dangerous dog may be prosecuted for a felony or misdemeanor if the dog seriously injures another person as a result of negligence or letting it run loose.
For example, California Penal Code section 399 (as amended in 2001) states:
399. (a) If any person owning or having custody or control of a mischievous animal, knowing its propensities, willfully suffers it to go at large, or keeps it without ordinary care, and the animal, while so at large, or while not kept with ordinary care, kills any human being who has taken all the precautions that the circumstances permitted, or which a reasonable person would ordinarily take in the same situation, is guilty of a felony."
Jerry fought like hell from being killed by those dogs; the evidence was all over his body not to mention the attack scene. There weren't spatters of blood; there were BUCKETS of blood according to Jami. But there it is right there in black and white. What in the hell were the revisers of 399 thinking? Phillips explains more here:
The family needs to pursue this with the state.
Judge Thomas A Smith wilfully and negligently ignored the law, illegally used one tiny fraction of the law to commit what he has demonstrated in his past- "wilful misconduct."
This Smith should have been removed from the bench when he committed a crime in the 1990s.
Saying "I'm sorry and I made a mistake" was not enough. As a judge, he is held to higher standards. He should have known and understood the law then.
He should have known and understood the law now. He did not.
Someone who committed a crime does not belong in a court adjudicating criminal cases.
His confusion, ignorance, or "wilfull misconduct" is not acceptable.
Is Smith doing "favors" for "friends" abusing and ignoring the law, as he has done in the past, recognized and stated as such by state boards?
However, Smith has dealt a blow to the pit bull industry by making it mandatory for property owners to deny access to their property for any reason by pit bulls.
The only way to prove that precautions are taken is for property owners to DENY ACCESS to their property for any reason by pit bulls.
The people of Calaveras County should be posting their property now- NO PIT BULLS ALLOWED.
Thomas Smith has told the people they need to take "precautions."
And apparently shooting a pit bull on sight on your property in Calaveras County is a requirement too, as Thomas Smith insists you must fight back and take proper precautions.
Living your life on your own property and minding your own business is not enough, Smith indicates. Aggressive precautions are needed, or you will be allowed by the court to be murdered by a pit bull.