The scales of justice at the Brown v. Board of Education National Historic Site in Kansas/Wikimedia Commons

After years of putting up with the incessant barking of a neighbor’s dog, 69-year-old Jin Bong So of Anchorage finally couldn’t take it anymore and decided to do something about it. His plan was not particularly well thought out. He bought a pellet gun and several times shot the dog named Lenny to teach it that barking had consequences, bad consequences.

Lenny was injured, but not seriously, more than once. The owner, Denise Rosales, reported Lenny’s injuries to authorities. They traced the wounds back to Bong So. He ended up in court earlier this month.

Months  before Lenny was shot, Jason Mellerstig of Anchorage strapped a 9mm handgun to his hip in preparation for taking his 3-year-old son to daycare. He walked out of his house near Campbell Lake, crossed the street to his truck parked in front of the home of Dave Brailey, and shot Brailey’s dog dead.

Mellerstig was never charged with anything. Not even the discharge of a firearm in the Municipality of Anchorage – one of the three charges brought against Bong So. The others were criminal mischief and animal cruelty.

The municipality considers an airgun a firearm, though the state does not. In court, Bong So testified through an interpreter that he did not know it was illegal to fire an airgun in the city, and that he didn’t think the pellets would penetrate Lenny’s skin.

He didn’t want to hurt Lenny. He just wanted to make him shut up.

This didn’t matter. Bong So was convicted, ordered to jail for 15 days, fined $1,500, and required to reimburse Rosales to the tune of $250.80 for Lenny’s medical bills.

Given the history here, one might conclude that if you have a problem with your neighbor’s dog in Anchorage it is better to kill it than injure it, but hopefully no one will proceed on that assumption because there is clearly more to this story.

Speak English!

Americans like to think that justice is blind in this country, but it is anything but. It is influenced by money, fame, appearance and more. And because of this, it is hard to avoid an obvious question in the Bong So case:

Did race play a part in his conviction?

“It’s certainly possible,” said his attorney Chris Provost, but more than that he believes Bong So’s limited English made him an easy mark for municipal prosecutors.

“He barely speaks English,” said Provost, a lawyer whose practice usually involves serious felony cases.  He took Bong So’s case, he said, “because I just kind of felt bad for the guy when he came in.”

Provost thought he could negotiate a reasonable plea deal for Bong So. The city, he said, was having none of that. The best plea offer was for Bong So “to plead out and spend months in jail,” Provost said.

He had to sit down with his client after that and talk about what to do next. The American criminal system is costly. Bong So could have fought the charges at trail, but it would have cost him thousands of dollars, and there was good possibility he might be convicted anyway.

The very things that made Bong So an easy mark for prosecutors – his race, his limited English, and his lack of understanding of the cultural norms of the West where people love their dogs – were working against him.

Bong So eventually decided to plead  no contest to the charges and throw himself on the mercy of the court. Provost at sentencing argued the issues involved in the shooting were as much cultural as criminal.

“Had he known these community norms, it would have never come to this,” reported the Alaska Dispatch News, which thought the case important enough it had a reporter covering the trial.

The same newspaper lent a sympathetic ear to Mellerstig, a white graduate of the University of California School of Law working as a commercial airline pilot in Alaska because he loves to fly.

It’s complicated

When Mellerstig started shooting, there was no doubt about what was going to happen to Skhoop. There was no question about the penetrating power of multiple rounds from a 9mm.

But what exactly transpired in the Mellerstig case was never settled. Mellerstig claimed Skhoop rushed him, that he felt threatened, and that he shot in self-defense. At least one of his neighbors questioned that scenario.

Skhoop, a chocolate Labrador retriever, was behind an invisible fence and had been staying behind it for months. But he was also on report for having once broken out and scared another neighbor though she was not harmed. It was never determined whether he broke containment on the fence before Mellerstig shot him or whether Mellerstig knew an invisible fence was in place.

Likewise, the full extent of Skhoop’s earlier behavior was unclear. Instead of contesting the charge that Skhoop was aggressive, Brailey told the city he’d make sure Skhoop was kept in the yard. There were no further reports of his breaking containment, but after his death, Brailey’s acceptance of the report of an aggressive dog worked again Skhoop.

Then, too, he was known to run to the edge of the lawn and bark at some people.

All of these things made the Mellerstig case hot news in Anchorage for a few days in April, and then it just sort of faded away. The city’s decision not to prosecute was never announced. The bureaucracy did what it often does when faced with a hot-button issue; it sat on the matter until the issue went cold.

Come back later

The shooting happened in early April. A May 23 request to Municipal Attorney William D. Falsey asking whether charges would be filed in connection with shooting brought this reply:

“The case is with the municipal prosecutor.  She has not yet concluded her review; charging decisions have not yet been finalized.”

A follow-up request on May 23 went unanswered.

“The case remains under review” was the answer to a June 23 request.

A July 7 request again went unanswered. By then, the story was long out of the public eye in a state where the media follows up on almost nothing. And even this website had grown  tired of asking.

There wasn’t another request made until Oct. 4. Falsey did not answer, but four days later municipal attorney Seneca Theno sent an email revealing “our office advised the parties in mid-July that no charges would be filed in the case.”

In a follow-up series of emails, Theno eventually explained the situation this way:

“The burden for presenting a self-defense claim to the jury is quite low (“some evidence”) and does have to be disproved beyond a reasonable doubt to a unanimous jury. The highest burden we have, of course.

“Absolutely an unfortunate situation, and I’m sure incredibly upsetting for all the parties. I find myself saying to victims in cases that we cannot prosecute, ‘It does not mean something bad didn’t happen, it just means that we can’t address this incident at this time through the criminal justice system.’ I think that applies here as well.”

Tough case

It would be unfair to the office of the Municipal Attorney to end this story there.

Theno is correct when she says the standard for demonstrating self-defense in Alaska is low. The standard was low even before the state approved a “stand your ground” law in 2013 that lowered the standard further.

The old law required people make an attempt to retreat, if possible, before using deadly force, but the law was changed to say this:

“A person may not use deadly force under this section if the person knows that, with complete personal safety and with complete safety as to others being defended, the person can avoid the necessity of using deadly force by leaving the area of the encounter, except there is no duty to leave the area if the person is…protecting a child or a member of the person’s household.”

The latter provision details one of seven specific situations in which retreat is no longer required before resorting to the use of deadly force. With Mellerstig’s young son on the scene of the Skhoop shooting, it would have made prosecution an uphill battle.

And, as Provost noted, prosecutors don’t like to fight uphill. The legal system is weighted to winning. Prosecutors want a strong won-loss record every bit as much as any sports teams. What they decide to do is determined largely by their assessment of the odds of winning.

“In 27 years of doing this,” Provost said, “I’ve come to understand the system is really driven by the personalities of the prosecutors.”

Bong So was an easy mark. A naturalized citizen who didn’t speak English, a man born in a country where dog was on the menu in some restaurants until not long ago, a “personal-care provider,” and an Asian, he was pretty much Mellerstig’s social opposite.

Now, he is out of work and facing a hefty fine for what he did, though Lenny is doing fine. The only upside, Provost said, is that the judge relented on the sentence and told the elderly man he could serve his time at home wearing an ankle monitor.

It was American justice.