Dennis Wilenchik, attorney for the son and daughter-in-law of U.S. Senator Jeff Flake, has a message for the lynch mob in the Green Acre Dog Boarding case: cut down the ropes.
Late Tuesday, Wilenchik, aided by his son and fellow lawyer Jack, hit the court with three motions rebutting the animal cruelty charges against his clients Austin and Logan Flake in the June deaths of 21 dogs at the Gilbert facility: one to remand the case back to the grand jury, one to sever the Flakes' case from the owners of the business, and a third to dismiss some of the charges outright.
The most serious allegations are in the motion to remand, which charges that MCSO Detective Marie Trombi and the prosecution may have "intentionally misdirected the jury and committed perjury" concerning a report from SRP showing a severe dip in electrical usage the night most of the dogs died.
According to Wilenchik, the state's own air-conditioning expert concluded that it was "very likely" that the AC for the room where some 27 dogs were being kept at the residence of Todd and MaLeisa Hughes, Green Acre's owners and Logan Flake's parents, froze up because the unit's filters had not been changed.
Similarly, a mechanical engineering expert for the defendants concluded that the drop in electricity usage is "clearly consistent" with the AC going on the fritz that night.
Which would explain why, when Austin Flake looked in on the dogs at 5:30 AM, six and a-half hours after putting them to bed, 20 lay dead or dying of heat stroke.
Though Wilenchik says the Flakes did what they were instructed to do by the Hugheses, and attempted to cool the dogs down with water and ice, 21 dogs ultimately died.
After a three-month investigation (more than many human victims get from the MCSO), Sheriff Joe Arpaio asked Maricopa County Prosecutor Bill Montgomery to indict both couples.
Montgomery sent the case to a grand jury, which hit the Flakes with 21 felony and seven misdemeanor counts of animal cruelty, and 23 felony and seven misdemeanor counts against the Hugheses.
But it seems the grand jurors never saw the SRP report or the analysis of it by the state's expert, and only knew what two state witnesses, Trombi and the MCSO's contract veterinarian Bernard Mangone, told them regarding the AC unit.
Wilenchik's remand motion says Mangone and Trombi both told the grand jury that the AC was working all night long.
For example, check this passage from the remand motion:
In fact, the SRP Report clearly shows that the air conditioning went off that night, and even SRP itself supports this.The State's main witness, Detective Marie Trombi, not only provided false testimony to the grand jury twice about this under questioning by the prosecutor, but she provided false testimony when a grand juror asked her about this issue directly, almost immediately after she finished testifying:
GRAND JUROR: I'd like to clarify also. So the air was working and on until 5:30 that morning when he tried to fix it, Austin Flake tried to fix it, correct? That's what SRP said? THE WITNESS: That's going by the SRP records, yes. GRAND JUROR: That it was on? THE WITNESS: It was on, all night. GRAND JUROR: All night? THE WITNESS: All night. GRAND JUROR: Thank you.
Further, the State had a report from its own engineering expert which stated that it was "very likely" that the HVAC unit froze, "render[ing] the unit completely ineffective." However, when asked by the prosecutor whether that same report showed that the air conditioning was working, Detective Trombi failed to disclose that the engineer reached this conclusion. Instead, she provided false testimony to the grand jury once again by testifying that the report showed that "[i]t was working."
At his regularly-scheduled press conference Wednesday morning, Montgomery did not dismiss out of hand the allegations in Wilenchik's remand request.
"It's not unusual to see some of these facts called into question," he said. "We are taking a look at the records that form the basis of the motion to remand and ask for a re-determination of probable cause.
"We have an obligation as prosecutors that if the defense brings forward information that they think is dispositive for the charges that their clients are facing, for us to take a look at it and assess the impact to the case that we've put together."
I asked Montgomery why his prosecutor didn't give the SRP report to the grand jurors.
"The records could have been available if they'd asked for them," he answered. "But in presenting information to the grand jury, typically results are summarized for their consideration, and we don't always present all the records available."
But if the prosecutor knew what the SRP report said, why wouldn't he or she correct the state's witnesses?
"If it was a very glaring error," said Montgomery, "and the prosecutor was aware that there was a mistake of fact that was being presented...I don't know, standing here in front of you, if it was just a simple oversight or if the witness knew affirmatively what the data showed and gave a different characterization."
Montgomery said his office now will "take a hard look" at the motion and see if "mistakes were made."
Still, Montgomery left himself some wiggle room.
If his office challenges the remand, and the judge rules in the Flakes' favor, then hypothetically, the county attorney could decide against pursuing charges with a grand jury.
"A decision to grant a motion to remand doesn't automatically mean that we would then present it in front of the grand jury," he said. "Typically, we do. We'd have a short window in which to do that."
There were other problems with the prosecution's presentation, according to Wilenchik.
When the jurors asked for guidance on the statute involved, specifically the difference between "reckless" intent and a non-criminal accident, the prosecutor simply pointed jurors back to the statute.
The motion quotes from the grand jury transcript:
Finally, [the jurors] asked, "How about this? Would a synonym for recklessly be sort of like an accident? Would you be able to answer that?" And the prosecutor again answered, "Unfortunately we can't, no. I know. It's incredibly frustrating."
Of course, an "accident" is certainly not a synonym for "reckless" intent, and the only frustrating thing here is why this was not corrected on the spot in fairness to these two Defendants.
Thing is, as hard as it is for some dog fanatics to accept, this incident was an accident, and should never have gone to a grand jury.
At best, the whole thing belongs in civil court.
Fortunately, the remand and the other motions go a long way toward debunking many of the assumptions made by those screaming for the heads of the Flakes and the Hugheses.
The issue of a chewed-through electrical cord is a red herring, since, despite what many thought at the time, an exposed electrical cord had nothing to do with the AC failing.
And yet, the AC did fail. According to the defense's HVAC expert, "the air conditioning shut down that night because the Hugheses failed to maintain the air conditioning unit and to change the air filters."
Which is one argument in favor of severing the Flakes' case from the Hugheses' case.
See, the Flakes' expert's testimony will be antagonistic to the Hugheses, as the Hugheses were responsible for the AC's upkeep.
In June, the Flakes were down from Utah, where Austin was attending Brigham Young University, to watch the business for a week while Logan's parents traveled to Florida.
While the Hugheses were away, the Flakes followed the Hugheses instructions on how to treat the dogs.
So why should they be held liable for some of the Hugheses' actions, which have drawn the ire of the public, and will not play well in court? Like the decision to have some of the bodies cremated, misleading statements by the Hugheses, and allegations of fraud against the Hugheses.
Regarding the grand jury testimony of the MCSO's contract vet Bernard Mangone, it's eviscerated by defense expert Dr. Melinda Merck, a pioneer in the field of veterinary forensics, known for her work on the Michael Vick dogfighting case.
From the nine dog necropsies that were done, she concludes that the cause of death for the dogs was heat stroke, symptoms of which can include "vomiting and/or diarrhea."
This contradicts Mangone's suggestion that the dogs had not been fed properly.
Actually, the Flakes contend that the dogs were fed properly. But when they looked in on the dogs that morning, they discovered almost all of them to be dead or on the verge of death from the heat.
Many of them were "simultaneously vomiting and defecating or urinating," according to filings by the defense.
Merck sums the issue up, thus:
Dr. Mangone states that the 8 dogs necropsied later did not have food in the stomach or significant amounts of feces in the colon. Furthermore he speculates that this indicates the dogs were not fed or were underfed. He even goes on to suggest the caretakers intentionally withheld food to prevent soiling of the environment citing that the caretakers personal dog did have food in the stomach and some feces in the colon. There is no basis for those suggestions or statements. Dr. Mangone did not take into account the possibility of a loss of stomach and colon contents - i.e. through vomiting and diarrhea - which further supports the diagnosis of heat stroke.
The fact that the buried dog still had food in the stomach and some feces could simply indicate that the dog did not have vomiting and diarrhea occur even with the heat stroke. It could also mean that the dog had a different or delayed gastric emptying time; or that the dog was fed at a later time than the other dogs. It does not indicate that it was the only dog to have received a meal in comparison to the other 8 dogs that were necropsied. In addition, Dr. Mangone states in his report that all of the dogs necropsied were 'in good flesh' indicating they were not showing physical signs of malnutrition.
As for the actions of the Flakes in tending to the dogs, Merck finds them "reasonable" for "those without veterinary training."
A vet would know that hosing down the affected dogs or applying ice to them would be the wrong thing to do. The average person would not.
Merck notes that even if the 20-somethings could have gotten hold of a vet early that morning, it may not have done any good.
"It is unknown whether or not immediate veterinary care would have resulted in a different outcome for the dogs that appeared near death," Merck writes. "The actions taken in such an overwhelming situation by the caretakers of moving the bodies to cooler areas and efforts to cool their temperatures down on dogs that appeared close to dying were reasonable."
In the motion to dismiss some of the charges, Wilenchik addresses the state's allegations that the Flakes did not render "necessary medical attention" to stop any "protracted suffering" on the part of the dogs.
I won't get into all of the legal arguments, but Wilenchik observes that the average person "would not expect to be criminally prosecuted" for not calling a vet in this instance.
"After all," he writes, "many people choose not to call a veterinarian when their pet is near-death, given the substantial cost of a veterinarian's treatment; or that they live in areas veterinary care is not available."
There was one dog that seemed to recover, and later died. But why would someone call a vet if they thought the dog was getting better?
We're getting down to some serious common sense here. Some of the commenters online and those interviewed on camera for TV news stories concerning this case have asked why the Flakes did not call 911.
Really, 911? So what if I see a dog hit by a car, or a dog limping by the side of the road, am I required to render first aid now? Or call 911, or a vet?
Of course not.
My favorite part of the defense filings comes in the motion to sever, when Wilenchik argues that severing the Flake case from the Hughes case will not inconvenience the "victims" because, as a matter of law, there are no victims.
And I quote:
The Arizona Constitution defines a "victim" as "a person against whom the criminal offense has been committed or, if the person is killed or incapacitated, the person's spouse, parent, child or other lawful representative..."
...[T]he dogs in this case are legally not "victims," because the Arizona Constitution defines a victim as a "person." The dogs' owners are not "victims" in the case against Defendants either, because they are not a "person's...lawful representative." However, the dogs' owners are alleged victims of the fraud count that is against the Hughes.
Thank you, Mr. Wilenchik.
Look, this paper has had major problems with Wilenchik in the past, and I've been highly critical of him numerous times over the years.
You could say, he's been an enemy of the paper, and vice versa.
But it's patently obvious that this case is being exploited for political gain by Arpaio, which explains the money and man hours the MCSO's wasted on this absurd witch hunt.
And sometimes, well, it takes an S.O.B. to battle an S.O.B. like Arpaio.
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