Leo, the bichon frise whose death by misadventure drew international attention, didn't jump from his owner's car one rainy February night last year, nor did he commit suicide. He didn't need fresh air, and he didn't need to stretch his legs.
No, Deputy Dist. Atty. Troy Benson intoned Monday, Andrew Burnett, 27, reached into Sara McBurnett's car, grabbed her beloved animal companion and threw the tiny dog into traffic because he knew it would hurt her.
"You want a motive?" he asked the eight-woman, four-man jury, which is set to begin deliberations today. "She hit his car, and he wanted to do whatever he could to upset her that night."
McBurnett, an Incline Village, Nev., real estate agent, sat mournfully in court as defense attorney Marc Garcia spent more than an hour exhorting jurors to go just with the facts and they would find his client not guilty of felony animal cruelty.
"It may not be the popular verdict," Garcia said in Burnett's defense. "But you're not here to be popular. You're not here to appease certain people and certain causes."
Animal lovers around the world jumped to McBurnett's side after Leo was killed in traffic near San Jose International Airport in February 2000, after Burnett cut off her Subaru Legacy and she bumped into his black sport utility vehicle.
Although Burnett was not indicted until more than a year had passed, Garcia admitted when the trial opened that his client was the man who walked to McBurnett's car, reached inside and tossed Leo onto the busy roadway. His explanation: Leo bit Burnett.
Burnett's own fiancee found out about Garcia's opening statement bombshell in the news, a fact that Benson capitalized on in his closing argument here Monday.
"The defendant didn't believe that his fiancee would believe his version," Benson told the jury. "He never even told her that he was involved. . . . This is a woman who loves him. That's because it's ridiculous."
The trial had been on hold for a week so that Santa Clara County Superior Court Judge Kevin J. Murphy could conduct a hearing to decide whether surprising new evidence against Burnett that surfaced in mid-trial could be considered.
On Thursday, Murphy said if Burnett testified in his own defense, the prosecution could call Audrey Warren--who served with him in the Navy--to testify, along with a late-appearing witness to the accident.
According to prosecutors, the witness was one car behind McBurnett and would have testified that Leo never bit the defendant.
Warren would have been called to testify that Burnett had been investigated in Puerto Rico in 1995 for allegedly beating a stray, disabled dog to death.
Burnett "admitted it," said Assistant Dist. Atty. Al Weger. "He said he put it out of its misery."
Burnett did not testify.
Both attorneys went directly into their closing arguments.