Monday, June 22, 2009

Explain Stu's case to me, Jeff...

As this saga come to what I hope will be a positive resolution for Stu and me, many people are still asking of me what the things were that the City did or did not do which resulted in Stu and me being deprived of Due Process and a fair hearing in this life and death decision process.
First let me explain what Due Process is. The Constitution of the United States and our California Constitution guarantee us certain inalienable rights.

1. We may not be deprived of life, liberty or property without Due Process of Law. That means that :
2. We must be properly notified of the accusations we face and notified of the time and place of a hearing or trial of the issues ;and
3. We must be given an opportunity to present evidence, witnesses in our defense and confront witnesses and cross-examine that witness who may offer testimony against us.
4. The matter must be heard by a neutral, disinterested and impartial trier of fact (judge). In this case, an Animal Control Officer acting as hearing examiner. For the appeal, a panel of Commissioners. We asked for all 5 but were given only 3—the most conservative three-3 lawyers.

Additionally, the Los Angeles Municipal Code is quite specific on how hearings for license revocation (for dogs) and dangerous animals shall be conducted.

The Initial Hearing and General Manager’s Decision:
So, in Stu’s case, what did they do right?

+/-

1. They notified me of the charges and the time and place of the hearing.
2. They allowed me to cross examine my accuser, but interrupted my questioning, prevented me from asking certain questions regarding the “victim’s” motivation for possibly being untruthful and ruled many of my questions as “irrelevant.”

What did they do wrong?
1. See (2) above.
2. Witnesses

a. The Department’s own Administrative Hearing Guide informs the public of the proper way to request that witnesses be called to appear. I followed it. They did not.

b. They received my written request for several department employees and one LAPD officer to be summoned to appear as witnesses but refused to summon them. Their explanation for this was that they didn’t have to summon any witnesses that the Department did not request.

3. They denied my request to have Stu (and Maeve, in her separate case) evaluated by Dr. Richard Polksy on shelter property. This prevented me from presented evidence which would have shown that Stu was not a dangerous animal and bit only in self-defense as reaction to :
a. Not being able to flee (she closed him into a room and approached him in a corner).
b. Having his wound irritated by the “victim.”

4. Helen Brakemeir. Los Angeles Municipal Code Section 53.18.5 provides that the Hearing Examiner make his report and recommendations from the hearing to the General Manager. Back then, it was Guerdon Stuckey who had just been asked for his resignation. The General Manager shall review the report and recommendations and either accept, reject or modify the Hearing Examiner’s recommendation. This recommendation was to revoke my license for Stu but not to declare him to be a “dangerous animal.” The G.M. may also return the case to the Hearing Examiner for further review modification, if necessary.

This didn’t happen the way the Municipal Code says it should have happened. Instead, somehow and for some reason (her friend, Capt. Karen Stepp despised me), Captain Helen Brakemeir, with no apparent authority, intercepted the Hearing Examiner’s report and wrote her own opinion which urged the G.M. to declare Stu to be “dangerous” and thus killed--even though she did not hear the testimony nor did she attend the hearing; nor was she a hearing examiner or in any other position of authority related to administrative hearings. Brakemeir’s memo states that she wrote the decision letter declaring Stu to be dangerous and placed in folder on the Department’s computer network for Stuckey to sign.

The Appeal before the Board of Animal Services Commissioners:
Grounds for Reversal of the General Manger’s decision.
At the appeal hearing held on March 8, 2006. My attorney (I did not have one at the original hearing) and I raised the issues above as grounds for reversal of the G.M. decision. At the time, we did not know about the Brakemeir memo and were very surprised that the G.M. was imposing a harsher penalty and a rejection of the Hearing Examiner’s recommendation. I did not learn of the Brakemeir memo, and the mystery was not solved, until I made a California Public Records Act request and the memo showed up in the pile of paper which I received from Ross Pool.

Debbie Knaan, The Biased Commissioner:

As my March 2006 appeal approached my attorney requested that all 5 Commissioners sit on the appeals Board (Khero, Riordan, Atake, Brown and Knaan). We felt that Atake and Riordan would pay closer attention to a decision which could end in the killing of an animal. We were denied this request as a “new” experimental appeal hearing calendar was being tried. This would involve only 3 Commissioners who would volunteer for evening appeal hearings held outside of regular Board meetings. We protested to no avail and were assigned Khero, Knaan, and Brown. Brown has been appointed to the Board only two months before.

On (or about) February 2, 2006 Deborah Knaan called me at my home. She was responding to my complaints that Stu was not being properly cared for at the pound (another story). After we discussed how that could or would be remedied, she said, “Tell me about the cases. And you have to tell the truth.” I found this to be unusual for a prospective “judge” to be interrogating me, but I knew she was a Deputy District Attorney and I was somewhat intimidated by what I viewed as her special authority. I told her everything I knew about both Stu’s and Maeve’s case.

Afterward, I called my attorney and he was shocked that she would engage in ex parte (without the other party) communication with a “defendant” prior to sitting on the appeal Board. Knaan also warned me, during the conversation, that the Board does not “always side with the animal.” In 2007, I discovered that Knaan had told both Marie Atake and Kathy Riordan that she thought I was a “liar and a creep.” She told them this before my appeal hearing and then participated in it. Ethically, and possibly legally, she should have disqualified herself if her feelings against me were so strong. My attorney should have disqualified her after she called me and interrogated me. Yes, she will be included in my lawsuit against the City of Los Angeles. Imagine you are arrested for …whatever. Before your trial, the judge calls you on the phone and asks for all the details about the case. Then he rules on your case. Whether he rules for or against you, both decisions would be tossed on appeal for judicial bias, or the appearance of that bias.

Knaan Runs the Appeal Hearing…Right into the Muck.

At the appeal hearing, Brakemeir appeared for the Department instead of the District Supervisor, Karen Stepp. I’ve always thought that Stepp would not hold up if she was accused of personal bias against me. Knaan took charge of the meeting, although technically, Khero as Vice President was supposed to run the thing. So there we were in front of 4 law degrees (City Attorney Dov Lesel included).

They took Maeve’s appeal hearing first and talked at length about my request for witnesses which was denied (this discussion and other documents is what caused the Judge in Maeve’s Superior Court Case to throw the case out).

After a short break, they started Stu’s appeal hearing. The “victim” was allowed to talk for awhile and even allowed to present new evidence. My attorney and I were constantly interrupted, by Knaan, and often precluded from finishing a point or topic. Because in depth discussion had already taken place in Maeve’s previous hearing, it was not repeated for Stu’s hearing. This is one of the things, discovered later, that caused Stu’s case in the Superior Court (different judge than Maeve’s) to suffer and which caused me to have to go on to the Court of Appeals, which added 2 years on to the already protracted process. If I were as experienced with legal procedure then as I am now, I would not have let this happen and world have forced the Board to allow us to repeat all of the discussion surrounding the requested, but denied, witnesses.

The Board's Appeal Decision.

On March 28, 2006, the Board rendered their decision at a regular Board Meeting held at a L.A. Library in the Valley. Can’t remember which. One might think that with two separate cases, they would take 2 votes and give 2 decisions. They didn’t. In one motion, they voted to uphold the General Manager’s decisions to revoke Maeve’s license and declare Stu to be dangerous (so he could be killed).
That ends the Department involvement as I headed on to Superior Court where I prevailed in Maeve’s case without an attorney—mostly due to a complete record which showed that 1) I had requested witnesses for my hearing and 2) that they were denied—a pretty clear cut case of denial of Due Process and that’s how the judge ruled. The lack of this evidence in Stu’s case is why we are where we are now.

I don’t know how the Court of Appeal will rule on Stu’s case. The record is spotty and the evidence of Due Process violations is not so obvious. However, the Brakemeir memo is there and I make a big deal about it in my briefs and in my oral argument. I can only hope that the justices look closely at this case, as I have asked them to do and make a decision which conforms to the one made for Maeve: that I am entitled to a new hearing on whether Stu should be declared a dangerous animal. Stay tuned.

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