Dog-killer gets what he deserves | SierraSun.com

Dog-killer gets what he deserves

Law Review, Jim Porter

Not many stories have stirred up such a public outcry as when Andrew Douglas Burnett, in a fit of road rage, threw a little dog onto a crowded roadway, where it was run over and killed. Here’s the story.

Fender bender

Sara McBurnett (note the “Mc”) was driving her 1997 Subaru Legacy on Airport Boulevard to the San Jose Airport. Her 19-pound Bichon Frise, Leo, was asleep in the front seat. She was inching along in heavy traffic and lightly bumped the black SUV with Virginia plates in front of her.

The driver’s side door to the SUV swung open and a “20-something” man with a goatee and a baseball cap turned backwards (international sign for “brain dead”) came stomping forward yelling at her. Leo woke up and got into her lap. Still yelling, the SUV driver reached into the car and grabbed Leo with both hands and threw him into the on-coming lanes of traffic. (SUVer Burnett claimed he was merely pointing at something in the car when Leo bit his hand and he “instinctively jerked back” and the tooth of the dog snagged “sort of like a fish hook” and the dog was inadvertently tossed to the ground, at which point he walked to his car without looking back.)

McBurnett tried to get Leo but he was crouching with his tail tucked under-terrified-when a white minivan hit him without stopping. Burnett took off in the SUV. McBurnett rushed Leo to a veterinarian but he died halfway there. The next day McBurnett filed a report with the Ross Police Department, who could do nothing.

Media blitz

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About two weeks after the dog-throwing incident, McBurnett told her story to the San Jose Mercury News and over the next three months she appeared on Oprah, the Today show, Good Morning America, Inside Edition and San Francisco radio station KGO, which offered a $120,000 reward.

The reward worked, because several citizens reported seeing the black SUV. Burnett’s landlady later testified in court, that he would park his car with the license plate in the bushes and would have long hair one day and short hair the next, constantly changing his facial appearance.

Cruelty to animals

Ultimately Burnett was arrested and charged with felony violation of Penal Code Section 597 which punishes “every person who “…cruelly kills any animal, or causes or procures any animal to be so…cruelly killed…”

A jury found Burnett guilty as charged and the court imposed the aggravated term of three years in state prison. Burnett did what every defendant does: He appealed.

Cruelly killed

Burnett argued that while he may have been cruel, the specific language in Section 597 requires that the animal must be “cruelly killed,” and little Leo wasn’t cruelly killed, he was just run over.

The Court of Appeal was not impressed with Burnett’s wordsmithing and ruled that in this case being run over by a minivan was “cruel,” and Burnett was engaging in “hyper-technical parsing” of the statute. You got that right.

Intervening, superceding act

Burnett must have gone to law school because his next argument was that while he may have put Leo in motion to his ultimate death, he didn’t actually kill Leo, there was an intervening, superceding act that killed Leo-the white minivan.

The Court of Appeal dispatched that not-so-cleaver argument by concluding that it was imminently foreseeable that a vehicle would come along a heavily traveled roadway and hit a little dog at 8 p.m. on a stormy winter night. Strike two.

Prior dog killing

It only got worse for Burnett when in the middle of the trial, it was discovered that while a Navy military policeman in Puerto Rico in 1995, he beat a stray dog to death apparently saying “It was just a stray dog, what does it matter, it was the best thing for him.”

After a one-week recess in the trial, the court allowed that testimony to come in, which the Court of Appeal found appropriate. Burnett’s karma was coming home.

Sue the Lawyer

Burnett was down to his last straw. That’s the point in the proceedings where you turn on your lawyer and claim it was his or her fault.

The Court of Appeal concluded, however, that Burnett’s lawyer had done a good job. As to Burnett’s claim that Leo’s tooth got stuck in his finger, the court wrote it was “absolutely ridiculous. It is insulting to my intelligence, it is insulting to the intelligence of any person who thinks. It is preposterous. And it’s an indication…of guilt and it fits a pattern, a consistent pattern that I observed based on the evidence establishing that the [defendant] is a liar.”

The Court of Appeal affirmed Burnett’s three-year prison term-where at last sighting he continued to wear his baseball cap backwards.

Jim Porter is an attorney with Porter-Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached at porter@portersimon.com or at the firm’s Web site http://www.portersimon.com.