Thursday, February 6, 2014

Big Black Dog


The big black dog that attacked me and ripped my leg to shreds, causing me to receive 29 stitches, wasn’t a “vicious animal.”

It was a big black dog.

I wasn’t really bitten. It’s an analogy, and the essence of a ruling by a California appeals court in a significant arson case in which the arsonist was sentenced to 25 years in the slammer, and then let go.

Yes, as a result of the legal precedent last month, the guy earned a “get out of jail free” card, as a Monopoly-minded dissenting appeals justice on the case put it.

Here’s what happened.

In 2009 a man and his girlfriend lived in a motor home parked with several other empty motor homes on a lot. After an argument, the man parked an empty motor home next to theirs -- in which she slept -- and used gasoline to ignite it. Before theirs caught fire, the woman saved herself by fleeing their motor home, with her dogs. (I don’t know if they were big black ones.) A jury later convicted him of arson of an inhabited structure, his third serious felony conviction under the state’s three-strikes law. Therefore, he was sentenced to 25 years in prison.

In the appeal, his attorney contended “evidence was insufficient to show that the motor home in which he and (his girlfriend) were then living was a structure.” California arson law defines “structure” as “any building, or commercial or public tent, bridge, tunnel, or power plant.” (Sometimes you just want to grab legal definitions by the throat and squeeze.)

Two of three appellate court justices hearing the appeal bought the defense lawyer's line. “Evidence that he set fire to or caused that motor home to burn does not support the jury’s verdict finding him guilty of arson of an inhabited structure,” they ruled. They glibly if not smugly added, “In short and simply stated, the motor home at issue in this appeal is not a structure, as that term is defined in the arson statutes.”

Thereby they dismissed the arson charges.

They said that to be a structure under arson definitions, the motor home, which of course has wheels, would have to be tied down like a stationary mobile home. Under that reasoning, an outhouse is a structure, provided it has a foundation worth a crap.

However, in giving an inch, the judges agreed a motor home is “property” for purposes of arson in California.

Even at the man’s trial, the commonsensical jury considered and agreed that the motor home was a “dwelling.” You know, where people live. And yes, their motor home was the man’s and his girlfriend’s residence. While the girlfriend escaped injury in the fire that destroyed their motor home, had she been a sounder sleeper the outcome could have been much, much worse for her -- and her dogs. So while she comes under threat of death by fire, the justices fiddle with semantics. Yes, the two legal bumpkins who decided this appeal looked at the big black dog, snarling at them, its bloodthirsty fangs bared for ripping human flesh apart, globs of sticky drool dripping from its teeth, and white foam covering its snout, and they judiciously concluded it wasn’t a vicious animal at all. Just, well, a big old black dog.

Lawmakers should listen to the barking, and review the state’s criminal definitions of arson now. I mean, come on, they include a “public tent”! Intentionally igniting a public tent is arson. Dare I argue there are many more motor homes than public tents.

But hold on, this case gets inaner if not insaner.

After the two judges yanked the legal rug from under the arson conviction, these paragons of pillared places seemed to like the feeling of it. What they did next is inexcusable. They added insult to injury by handcuffing prosecutors from charging the man with arson again, including simple arson of property. This even though these same meatheads had agreed the motor home was “property.” Weed-whacking through the legal underbrush they said law barred recharging him and using the same evidence.

Bottom line: a convicted arsonist is walking, maybe while arrogantly striking matches to light his path.

Agreeing motor homes aren’t “structures” in her dissent, a female member of the three-judge panel, wrote, sanely: “I respectfully dissent from the majority’s conclusion that defendant is now entitled to a ‘get out of jail free’ card. I am willing to assume, without deciding, that we cannot simply reduce the offense from arson of an inhabited structure . . . to arson of property. But even if so, defendant could lawfully be retried for arson of property.”

And he should be. But, thanks to this ruling, he won’t be.

I’m aware of the old saying: “dissent means you lose.” But, I think the dissenting justice is correct. Her colleagues stretched case law to fit the four corners of their far-fetched conclusion. (Did they privately cringed at the prospect of a simple property arson conviction sending this guy to prison for 25 years under three strikes?)

The state’s High Court should look at this one. It shouldn’t stand as precedent.

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