4:41 PM EDT, August 4, 2012
Marcella Leone came home from a trip in September 2008, turned on her answering machine, and discovered a disturbing, frantic message from Sandra Herold, the owner of Travis the chimpanzee.
"She was yelling at me to get my dart [tranquilizer] gun and get over there and help her," Leone, owner of a private zoo in Greenwich, testified in a deposition.
The 200-pound chimp apparently had escaped from his cage at Herold's Stamford home. Nobody got hurt that day; the incident resolved itself before Leone returned from a trip days later and listened to what she called the "very disturbing" message.
"It's okay," Leone said Herold told her when she called back.
But things weren't really OK, Nash's lawyers now say, adding that the 2008 phone message was one of several warnings that state officials failed to heed.
It was eerily similar to a frenzied 911 call that Herold made five months later, on Feb. 16, 2009 — "Send the police with a gun. With a gun!" — when Travis tore off the face and hands of Herold's friend, Charla Nash, blinding her permanently.
Leone, owner of the Lionshare Farm zoological center, is one of several witnesses who have been called to give sworn testimony in a three-year buildup toward a high-stakes hearing in Hartford, this Friday, on whether Nash's conservator and lawyers will get a chance to sue the state for $150 million in claimed damages.
The witnesses' accounts, in printed transcripts, bring detail and drama to the formal arguments filed in legal papers with the state's claims commissioner, J. Paul Vance Jr., who will preside over Friday's hearing.
For example, witnesses' statements range from calling Travis "well-behaved" to describing how a police officer pumped four bullets into his chest the day of the attack and the chimp ran off "almost as if nothing … took place." (He died soon afterward.)
Victim Plans To Attend Hearing
Nash, who now lives at a rehabilitation facility in the Boston area, plans to appear at the hearing, said Matthew Newman, one of her lawyers at the Bridgeport firm of Willinger, Willinger and Bucci. She won't play an official part in the proceeding, but, Newman said, "She has a desire to be there so she can hear first-hand what transpires."
In Leone's deposition, she testified that she was so concerned about Herold's 2008 phone message that she called a state Department of Environmental Protection official, Elaine Hinsch, who worked in regulating ownership of wild animals.
"To show her how serious the situation was, I played the answering machine recording so she could hear it," Leone said.
"What was her reaction after listening to that tape?" she was asked.
"She was concerned and said she was going to do something," Leone responded.
One thing that Hinsch did was write a now-widely reported memo to two other DEP officials about a month later, saying that the chimp, if he remained at Herold's home, was "an accident waiting to happen." But nothing was done to change the situation before the February 2009 attack.
Leone, who said the 2008 recording of the message was lost in a fire at her house, testified that in recent years she had been "trying to help and coax Sandra Herold into placing Travis and trying to help her find places to do that."
"And why was that?" a lawyer for Nash asked.
"Because I didn't think it was the right situation for the animal," Leone responded. "He was a mature adult chimpanzee, and that's not a proper situation for a mature adult chimpanzee. … Chimpanzees are not pets."
However, Travis was treated not only as a pet, but also as a member of the family, witnesses said. He reportedly drank wine from stemmed glasses to wash down lobster and steak, slept in the same bed with Herold and combed her hair.
One witness, Stamford police Capt. Richard J. Conklin, testified last December that in the years before the attack on Nash, Travis was widely known in Stamford and not seen as a threat. Herold, who died in 2010, and her husband, who died in 2004, even used to take him to work at their car-towing business.
"Travis the chimpanzee had become somewhat of a local celebrity doing commercials, being seen around the community and interacting with many people, including police officers, emergency personnel and the community," Conklin testified.
Aside from a well-publicized incident in 2003, when the chimp got loose in downtown Stamford, and playfully avoided attempts to capture him for an extended period, Conklin said "he seemed well-behaved."
At Herold's house, "Travis was treated less as a pet, than almost as a child," Conklin said.
Conklin was questioned in his deposition by a lawyer from the state attorney general's office — which opposes Nash's claim, saying that the state and its taxpayers are not responsible for what happened to Nash when she tried to help Herold get Travis back into the house.
But Conklin also recounted the dark turn of events on Feb. 16, 2009.
Testimony: Chimp Unlocked Door
On that day, the chimp escaped from Herold's house when he "took the keys that were on a counter and actually used them to unlock the door of her home and went out onto her property," Conklin said.
Herold then called Nash — a longtime friend whom she employed almost as a "girl Friday," including work as a sometime dispatcher in the towing business — and asked her to come and help her get the chimp under control.
Travis attacked Nash, and Herold made the now-widely known 911 call, which was replayed on newscasts worldwide.
When police arrived, Conklin testified, the rampaging Travis opened the door of a cruiser, and the officer inside pumped four bullets into him "at a very close range." But the chimp ran off "almost as if nothing … took place." The chimp ran to his cage in Herold's house, where he died.
While the Nash legal team is using the testimony of Leone, the environmental official Hinsch, and others to support its claim that state officials failed in their legal duty to remove a dangerous animal from the residential setting, the office of state Attorney General George Jepsen has obtained testimony that Travis had harmed no one before the attack on Nash.
Vance, as claims commissioner, must decide whether to waive the state's "sovereign immunity" from most litigation. Would-be plaintiffs such as Nash must request his permission before they can sue the state in Superior Court. Nash's lawyers have asked for that permission, and Friday's hearing is on a request by Jepsen's office for Vance to deny the request.
The hearing is at 10 a.m. in the largest hearing room of the Legislative Office Building in Hartford, Room 2C.
Although Nash plans to be there, the witnesses quoted in the depositions are not necessarily expected to attend. This proceeding is for the lawyers, who will make arguments based on the statutes. The attorney general's office has filed a motion for Vance to dismiss Nash's claim immediately — without the normal trial-like hearing, which would probably last several days.
Possible Next Steps
If Vance decides not to grant the state's motion, then a full hearing would be scheduled in coming months. At that hearing, evidence would be submitted and witnesses would testify — and then Vance would make his ruling on whether Nash gets to file her lawsuit against the state.
If Vance grants the state's motion to dismiss the claim — or, even if he denies the state's motion now but denies the claim after a full hearing months from now — Nash and her lawyers have a recourse: They can appeal to the state legislature. The legislative judiciary committee would first handle such an appeal, but for it to succeed, the full legislature would have to approve a special act granting Nash her day in court.
Newman and Charles Willinger, the two lawyers primarily in charge of handling Nash's case, say that the attorney general's arguments against the claim should be decided by a court, not a politically appointed (by the governor) claims commissioner.
Willinger has said that the state DEP — now called the Department of Energy and Environmental Protection — had successfully pushed for the legislature to remove a "grandfather clause" in a regulatory statute that had exempted Herold from needing to obtain a permit to own Travis.
Legislators changed the "grandfather clause" in 2004 to make it apply only to animals owned before Oct. 1, 2003, and weighing less than 50 pounds, leaving Travis out. That means the chimp was illegally owned by Herold after that, because she was never required by environmental officials to obtain a permit, Willinger said.
However, the attorney general's office has argued that DEP officials believed that the law was vague and hard to enforce, and that the agency did not have "unilateral authority" to remove the animal from Herold's home against her will.
Newman said Friday in behalf of Nash: "It is abundantly clear that the Department of Environmental Protection received numerous warnings and gathered information regarding the dangers presented by an adult, male chimpanzee living in a private residence. "
He gave as examples: "DEP's knowledge of the chimpanzee's escape in 2003 in downtown Stamford, the legislation proposed by DEP in 2004 to require a permit for possession of a primate weighing over 50 pounds, memoranda authored by DEP personnel in 2005 and 2008, and telephone calls to DEP personnel in the fall of 2008 by a person with direct knowledge of the increasingly volatile behavior of the chimpanzee."
All of those things, he said, "lead any fair-minded person to one conclusion: that the DEP was negligent by failing to address this hazardous situation. DEP had the authority and the opportunity to seize this animal — 'an accident waiting to happen' — and prevent the tragic attack on Charla Nash. It took no action. On behalf of Ms. Nash we are asking for the chance to present our case in a court of law."
In an interview with The Courant in March, Nash said: "I know my health [care cost] is in millions of dollars — millions. I don't want to owe everyone for the rest of my life, and I don't want to be a burden on everyone the rest of my life."
Her main objective was getting "strong and healthy." She added, however, "I hope that I do get my day in court."
In court papers filed in April, lawyers for the state attorney general's office said: "[T]he state recognizes that [Nash's] injuries are indeed profound," but that Nash's "proper remedy is against the owner of the chimpanzee or other appropriate private parties."
Nash has filed a $50 million lawsuit against Herold's estate.
Jon Lender is a reporter on The Courant's investigative desk, with a focus on government and politics. Contact him at email@example.com, 860-241-6524, or c/o The Hartford Courant, 285 Broad St., Hartford, CT 06115 and find him on Twitter@jonlender.
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