Since the decision was made, police and prosecutors have expressed frustration that the state lacks a statute that would apply to the situation.
“There was nothing really we could work with,” said Galesburg Police Sgt. Bob Schwartz. “Find us a statute we could charge under, and we would probably charge someone.”
On March 2, Maxwell was playing in the backyard of 675 Whiting Ave., where he was visiting family friends, when he was attacked by a chained dog.
He died an hour later from wounds he received in the attack.
The dog in question, which was killed by a police officer following the attack, was not declared dangerous, and there weren’t any other issues with the animal, Schwartz said.
Since then, the city has formed an Animal Control Working Group to look into what can be done to prevent further tragedy. Meanwhile, police investigators gathered information about Maxwell’s death and the moments leading up to it and presented it to the Knox County State’s Attorney’s office. It is up to them whether or not to file charges following an incident.
“Initially, we have what appears to be a horrible accident, but in almost any case, we have to go further than that,” said Assistant State’s Attorney Elisa Tanner. “We ask if this was more than an accident, was it intentional or knowing? If not, was it reckless?”
Tanner and State’s Attorney John Pepmeyer worked together over several weeks to examine the police report and determine whether they could file charges. They also received a lot of phone calls from people inquiring about the case, Tanner said.
However, there was no evidence a crime occurred, and so no charges were filed, Tanner said.
“The reality is that those kids had played with the dog before, and there were never any problems,” Tanner said. “There was no way for us to ever prove that (the family) ever could have known or reasonably should have know that was going to happen. And that’s the magic language.”
For an involuntary manslaughter charge, prosecutors would have to prove one of the people involved recklessly acted in a way that was likely to cause death or great bodily harm.
For a case of endangering the life or health of a child, prosecutors must show the defendant knowingly caused or permitted the child to be endangered or placed in a circumstance that endangers his life.
“Knowing, intentional and reckless are the three key states of mind, and there was nothing in these acts that proved any of those,” Tanner said.
If a child dies from that endangerment, the defendant can be charged with a Class 3 felony and sentenced to a prison term of two to 10 years.
“There’s no evidence there was a crime committed,” Tanner said. “It almost tears you apart when something like this happens and there’s nothing you can do to offer the family other than words. But there’s no crime.”
(Register Mail - June 11, 2013)
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