2 NOPD officers face almost no penalties after their police dogs die

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wwltv.com

Posted on February 15, 2013 at 11:58 PM

Updated Saturday, Feb 16 at 7:53 AM

Mike Perlstein / Eyewitness News
Email: mperlstein@wwltv.com | Twitter: @mikeperlstein

When two New Orleans police dogs died tragically in the care of their handlers within a five-month period in 2009, there was a loud cry for justice.

With the shocking deaths of Phantom and Primo, administrative and criminal investigations threatened to bring severe discipline to their K-9 officers, possibly even prison time. Animal rights groups urged officials to take swift action against the officers.

But with the acquittal of Sgt. Randy Lewis last week after his trial on a malfeasance charge, both cases ended with almost no disciplinary action against either officer.

“What we’ve seen here is anything but justice being rendered,” said Rafael Goyeneche of the Metropolitan Crime Commission, one of the people who pushed for prosecution of the cases.

In Sgt. Lewis’ case, prosecutors alleged that after Phantom fell 17 floors down an elevator shaft inside the abandoned Charity Hospital, the officer tried to cover up the accident.   
    
Those same prosecutors left the courtroom furious after Judge Ben Willard said he agreed with key elements of their case, but nevertheless exonerated the officer.

“He found all the elements were there, but somehow it came back not guilty,” lead prosecutor Chris Bowman said.

With the acquittal, the only penalty paid by Lewis was a five-day suspension from the department, the result of an in-house investigation that police commanders admitted was flawed.

But the earlier case, in which officer Jason Lewis’ dog Primo died from heat stroke inside an unattended police unit, the punishment seemed steep.
 
At least initially.
 
Lewis pleaded guilty to misdemeanor cruelty to animals and was promptly fired from the police force.

But two years later, the Fourth Circuit of Appeal reinstated Lewis with full back pay. But he still had to deal with the conviction and the $11,500 restitution he agreed to pay to cover the value of Belgian Malinois and its extensive training.
 
Or so everyone thought.

Due to an unusual legal twist, Lewis only paid $1,200 of the restitution amount before Judge Franz Ziblich ruled that he no longer had to pay.

Ziblich, who inherited the case when he succeeded now-retired Judge Terry Alarcon, said he was simply following the law in halting the restitution payments.

Ziblich said he stepped into a case in which Lewis had already completed the sentence imposed by Alarcon – six months of inactive probation – making him powerless to enforce the restitution or any further sanctions.

"This is not something I wanted to do,” Ziblich said. “This is something I had to do.”
 
Court records shows that Lewis made no payments during his six months of probation. He started making payments after the six-month period when he received a warning notice from the court’s collections department, but those payments ended with Ziblich’s decision.

Ironically, Ziblich issued the ruling after Lewis’ attorney filed a motion to throw out the conviction. The judge denied that motion, letting the conviction stand, but also relieved Lewis of his $100 monthly payments.

In his ruling, Ziblich wrote, “The State or the defendant could have sought an extension of probation from the court in order to pay restitution, but failed to do so, thus the probation expired after six months.”

District Attorney Leon Cannizzaro said he disagrees with Ziblich, arguing that the judge could have ruled that Lewis did not satisfactorily satisfy the conditions of his probation by failing to pay the full restitution.

“He’s doesn’t have to go to jail and the judge simply says, ‘That’s not my fault.?’ ” Cannizzaro questioned. “That’s not good enough. That’s just wrong.”
 
Cannizzaro said his office had no way to know that Lewis wasn’t making payments.

“To say it’s the DA’s fault for not extending the probation assumes that the district attorney is aware of the fact that the defendant is not making his restitution,” he said.

Goyeneche said “somebody dropped the ball.”

“When the court, in fact, established the dollar amount that he agreed to of $11,500, that became a court order. And his failure to comply with that court order, in my opinion is a violation,” Goyeneche said.

Fraternal Order of Police Attorney Raymond Burkart III said Lewis is blameless.

"It sounds to me as if the officer was making the payments when the judge terminated it. We don't fault the officer for what a judge does," Burkart said.

Even without full restitution, Burkart said both officers suffered far more than what any court could deliver.

"These cases were reviewed by courts of law and the civil service system,” he said. “It's not like anyone turned the other cheek. Arguments were heard, testimony was taken, evidence was reviewed. You also have to keep in mind that this is a tragedy. And no one suffered more than the dogs other than their handlers."

Even when the civil service commission upheld Lewis’ termination based on his guilty plea, the panel noted that it was a tough decision because Lewis entered the plea without  admitting he did anything wrong, offering what is know in legal parlance as an “Alford plea.”

“As a consequence,” the commission wrote in its September 2011 ruling, “we are faced with a highly unusual and difficult decision. We are sympathetic towards the appellant (Lewis). No person has suffered more than Lewis as a consequence of Primo’s death.”

According to the police department, both officers have been fully reinstated, although neither officer has rejoined the K-9 unit.  
 

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