Was it Time for Hera to Go?
David
Blatte
Tuesday, February 12,
2002
©2002 San Francisco Chronicle
AFTER A final appeal to the California Supreme Court for a new hearing for Hera was rejected, the city of San Francisco killed her last month, ending a long and heated legal battle to save her life.
While Hera's story is sad, in many ways it is simply a reflection of our society's attitude toward animals.
For the first year of her life, Hera was tied to a tree, her skin raw from the constant digging of her collar into her neck. Despite the neglect, when she was rescued she was so friendly and so trusted by the people at the animal hospital that they did not have her wear a leash.
Her chance at a happy life ended on the tragic day last January when the other dog in the care of Marjorie Knoller and Robert Noel, Bane, attacked and killed Dianne Whipple.
Knoller immediately gave permission for Bane to be "humanely euthanized," but she refused to subject Hera, who had not participated in the attack, to the same fate.
Instead, Hera entered a legal process that came to an end a year later. This end was unjust, and the law needs to change.
In California, "vicious dog" hearings are in a confused and inconsistent state. There are statewide laws that, despite their weaknesses, do provide some important safeguards.
In particular, the dog's guardian is guaranteed a trial de novo, or new trial, if he disagrees with the outcome of the first hearing.
However, local municipalities have the right to create their own procedures,
which can completely disregard the state rules. This was the case in San Francisco, where important procedural safeguards were ignored, and there is no right to a new hearing.
The San Francisco ordinance requires the city, absent agreement, to wait 30 days to hold a hearing. After Hera was taken, however, Robert Noel was told to choose between two dates for the hearing, either six or eight days after the incident. Although he asked for adequate time to prepare, he was mistakenly told by Animal Care and Control, in its own words, that the second "date was the latest we could have and still be in compliance with the ordinance."
Misled into a rushed hearing, Noel had no time to prepare a defense, offering virtually no evidence.
A fundamental constitutional safeguard for humans accused of a crime is the right to cross-examine witnesses. The San Francisco dog ordinance, on the other hand, does not even provide this basic element of fairness.
The testimony of literally every witness at Hera's hearing begged for clarification, but Noel was not allowed to ask questions, leaving a distorted, one-sided view of events.
The most compelling issue raised in the appeal was that the hearing officer deciding Hera's fate was a sergeant with the San Francisco Police Department, which at the time of the hearing was conducting a separate criminal investigation into the Whipple case. This is blatant conflict of interest.
As with any criminal investigation, and especially in such a high-profile case, the reputation of the department is inevitably on the line.
Moreover, part of the department's role is to create an image of safety for the city's human inhabitants. Under these circumstances, the sergeant simply could not be expected to satisfy the legal requirement of an impartial hearing officer.
In other words, innocent or not, the outcome of Hera's hearing was a foregone conclusion.
In denying the appeals, the courts were constrained by a fundamental aspect of the legal system, which embodies a larger feature of society. Under the law,
animals are treated as property. They have no rights, their value being determined solely by their usefulness for humans.
One implication of this is that if someone negligently kills your dog and you successfully sue, your monetary recovery will be limited to the market value of the dog -- the amount you paid for him; nothing more. His real value to you is not recognized because of his status as property.
Animal law is at the forefront of challenging this attitude. The similarities between humans and animals far outweigh the differences, and for the same reasons that we respect human life and extend compassion to those who suffer, we must extend this compassion and respect to animals.
Animals are sensitive and intelligent, leading rich emotional lives, experiencing pain and pleasure, and fearing death much like humans. While humans are smarter, intelligence is not the foundation of compassion or morality. It is pain and suffering that matter, and animals certainly experience these. This broader movement to give animals greater respect and rights is properly seen as an extension of the other great rights movements of our time.
In each of these struggles, such as civil rights and women's rights, differences have been used to justify mistreatment and abuse. The civil rights movement overcame oppression based on a difference in skin color.
The women's rights movement overcame oppression based on a difference in gender. With animals, by focusing on species, a difference with no moral significance, we are committing the exact same type of oppression.
Hera, unfortunately, from birth to death, was a victim of this societal attitude. She lived in a time when animals are treated as property, not as beings with inherent worth. Whipple's death was a tragedy deserving of great compassion, and a criticism of the treatment of Hera in no way diminishes the suffering that it caused.
Nevertheless, the life and death of Hera was also a tragedy -- for her, and for all of us.
David Blatte is a Berkeley attorney specializing in animal law, and he represented Hera (pro bono) on appeal.
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http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2002/01/31/MN87204.DTL
Time runs out for dog in S.F. mauling death
Presa
Canario given a lethal injection
Jaxon Van Derbeken,
Chronicle Staff Writer
Thursday, January 31, 2002
©2002 San
Francisco Chronicle
San Francisco -- The dog ordered kept alive after last year's mauling death of a San Francisco woman was put to death yesterday, two weeks after a long legal battle over the dog's fate ended at the state Supreme Court.
Hera, a 3 1/2-year-old Presa Canario, was given a lethal injection at San Francisco's Animal Care and Control shelter at 10:35 a.m. after the city got an order from the courts lifting a stay on her execution.
The dog had been preserved first as evidence after the Jan. 26, 2001, attack in Pacific Heights that killed 33-year-old Diane Whipple. Then she was kept alive while her owners and animal-rights activists challenged the legality of a city hearing officer's order deeming her vicious.
Robert Noel and Marjorie Knoller, the husband and wife who face trial in Whipple's death, have said Hera was not involved in the attack. They say Hera merely tugged on the victim's clothing as another Presa Canario, Bane, mauled her.
Knoller affectionately called Hera a "certified lick therapist."
The fight to preserve the dog wound up in the state Supreme Court, but on Jan. 16 the court refused to hear the matter, effectively sanctioning Hera's death.
The head of the city's Animal Care and Control Department said Hera's death was witnessed by two veterinarians and the head of a shelter volunteer program that cares for problem animals.
"It's kind of a sad and difficult day," Director Carl Friedman said. "It's nothing cheerful for us. We are in the business of saving lives, not ending them."
Friedman said the volunteers and staff who cared for Hera were saddened by it all. "There is a lot of emotional bonding," he said. "No matter what side of the line you are on, it hurts to see an animal die."
Hera will be cremated, he said, at her owners' request.
Friedman said his office had been flooded with calls, e-mail messages and letters about the animal, equally divided between putting her down and saving her. "We have been in the middle of this since the beginning," he said.
Friedman credited the shelter's volunteers with "giving Hera a tremendous quality of life" in her last year. "Everyone's sad and they're hurting."
James Kolber, the Ohio breeder who initially sold Hera, said he was sorry to hear she had been put down.
"She had an unfortunate life," Kolber said. "She was a nice dog."
Michael Cardoza, an attorney suing Knoller and Noel on behalf of Whipple's partner, Sharon Smith, said destroying Hera could turn out to be a mistake for prosecutors.
"You never know what type of speculation the defense will conjure up, once you put both dogs down," he said. "It's too late to prevent it -- I don't think they should have taken Bane out, either." Bane was destroyed shortly after the attack.
Cardoza added, however, that Smith is pleased Hera has been destroyed.
David Blatte, the attorney who fought to preserve Hera, complained that city officials had refused to let a professional animal tamer try to rehabilitate the dog.
"It's very sad," he said. "From all accounts, she was a sweet dog that had nothing to do with the incident."
E-mail Jaxon Van Derbeken at jvanderbeken@sfchronicle.com.