As it turns out, the Davis Enterprise did not do justice to this story. The story that follows comes from an interview the People’s Vanguard of Davis had with Mr. Berny. By far the most impressive thing about this story is that at every step along the way, Mr. Berny provided me with full documentation to authenticate and verify his claims.
Khalid Berny began not as a goat farmer, as the Davis Enterprise suggested, but rather as a fresh fruit and vegetable farmer. Vandals however destroyed about 40 acres of alfalfa on November 24, 2002 with the Sheriff’s office doing little to investigate or prevent this loss of damage. There was also a seizure of horses dating back to May 2003. At which point, Berny went to Europe for three months and returned to a field that could not be harvested.
It was then with the consent of Yolo County Agriculture Commissioner Rick Landon that Berny purchased goats as means for biomass reduction.
On August 31, 2004, Khalid Berny received his first citation for 40 goats being at-large. According to Mr. Berny, “they did not follow the proper procedure established in the Yolo County Code.”
According to Section 1-5.04 of the Yolo County Code:
“The Enforcement Officer shall issue the Responsible Person(s) a Courtesy Notice by service in the manner provided for in section 1-5.05. The Courtesy Notice shall identify the Violation(s) at issue and the steps required for compliance. In addition, the Courtesy Notice shall state that it is being provided as a public service for the purpose of advising the recipient of the requirements of the County Code and the means to achieve prompt compliance. The Courtesy Notice shall also state that compliance is required within fifteen (15) days, unless a shorter compliance deadline is necessary in the judgment of the Enforcement Officer because the violation presents an immediate public health and safety hazard.”
Furthermore, “If the Responsible Person fails to correct the Violation, a subsequent Administrative Citation may be issued for the same Violation. ” However, that is only if the owner fails to correct the violation. In this case the prescribed procedure was clearly not followed. There was no courtesy notice, only a citation for 40 misdemeanor counts plus a $102 fine per goat.
On September 16, 2004, Mr. Berny received another citation, this time for 80 goats being at large. And finally on September 25, he received his final ticket, for another 50 goats being at large.
The final violation occurred after an accident with a tomato truck put Mr. Berny in the hospital. “I was rear ended by a tomato truck in front of my ranch on the 17th at 7:10 a.m.” He was taken the hospital and at 10:00, “animal control got a call from another CHP officer stating that my goats are at large and are told that the owner of the goats is in the hospital. They start impounding my goats, drowning 6 in the irrigation canal, killing 2 more in transport to Woodland.” Mr. Berny showed me a picture of the dead goats lying next to the irrigation canal.
At this point, Mr. Berny faced 170 counts of at-large goats, which included a $102 fine per goat and up to 60 years in prison.
It turns out that this is not the usual way for animal control to handle a situation of at-large goats. One of his neighbors in a sworn deposition, for example, stated that his goats had escaped twelve times in the month of June 2004. He got eight calls from animal control and was given no citations from Yolo County.
Another neighbor, in 2001, got a citation for 900 goats being at large. In addition, he failed to appear in court. He received an $81 fine total for his 900 goats being at large (Mr. Berny showed me a copy of the citation) and a $250 fine for the failure to appear. Berny on the other hand, had his fine of $102 per goat plus he faced misdemeanor charges for the violation.
At this point, the FBI was called in to investigate apparently for differential and discriminatory prosecution. (I have a FOIA request into the FBI, but I have not received confirmation on this yet.) At the same time, Mr. Berny filed a lawsuit against the county for harassment and discriminatory prosecution.
Similar to what we saw in the Buzayan case, the District Attorney offered in writing to drop the charges against Mr. Berny, in exchange for Mr. Berny dropping the lawsuit. Judge Mock, who we have pointed out is married to the Chief Deputy District Attorney, was aware of this offer but refused to intervene. Recall that Mock is under fire in another case because of his marriage to the Chief Deputy District Attorney. We ran a couple of stories on the appearance of a conflict of interest, this is the first tangible evidence that that charge may have some merit.
The Deputy District Attorney in this case, Deanna Hayes, was asked by a colleague as to why this case was being pursued, she falsely contended that Mr. Berny’s goats caused tens of thousands of dollars of damage to the adjacent property. A claim, strongly disputed by Mr. Berny’s neighbors. Hayes was also given strict orders from her boss not to drop the charges or settle.
The presiding judge in this case was Judge Fall. Fall made several critical decisions that placed Mr. Berny in deep legal jeopardy. First, he ruled that this was a case of strict liability. According to two legal precedents, in order for at-large livestock to represent criminal negligence, which is the allegation here, the 1922 Poole v. Clover case ruled that the owner needs to know that his livestock is at large and they must do nothing about it. In all three cases, Mr. Berny was not aware his livestock were at large and moreover in the last one, he was in the hospital. A more recent U.S. v. Semenza from 1987 ruled that there must be “intent.” That the owner must “willfully” permit the animals to run at large.
Furthermore, Judge Fall denied Berny a motion for discovery under Murgia that would have presented evidence to show discriminatory enforcement by the District Attorney. Fall would in fact, forbid the use of discriminatory prosecution as any kind of defense.
Defense Attorney Matt Gonzalez (who also represents the Buzayan family among others) at this point appeared willing to concede defeat and prepare for appeal, when suddenly Judge Fall who had played hardball with the defense the entire time, disqualified himself under California Code of Civil Procedure 170.1.
I have been told that this is extremely unusual basically this means that the judge either has “personal knowledge of disputed evidentiary facts concerning the proceeding” or he “believes there is substantial doubts as to his or her capacity to be impartial.” What is striking is the point at which he recused himself. He did not do it at the onset, but rather a fairly late stage in the proceedings.
The new judge was Judge Lebov—a retired Judge appointed by Jerry Brown. Lebov has a strong reputation as a fair-minded judge. He threw out all of Fall’s procedural rulings and forced Deanna Hayes and her boss Steve Mount to begin their prosecution from scratch. They would have to prove strict liability and discriminatory enforcement could be used as a defense.
It was at this point, that Hayes and Mount would formally apologize Mr. Berney and dismiss the charges on July 25, 2006. Mr. Berny on November 2, 2006 filed a lawsuit against the Sheriff’s Department and Animal Control. (It should be noted that animal control is under the auspices of the Yolo County Sheriff’s Department and that Sheriff Ed Prieto signed off on a number of these documents.) He has now added the District Attorney’s Office to the lawsuit for selective and discriminatory prosecution.
—Doug Paul Davis reporting