Attorney fined for zapping witness with trick pen at dairy cow trial
He represented farmers who claim power plant is harming cattle.
Published: May 9, 2014 09:37PM
Updated: May 9, 2014 09:37PM
image
Elberta - Cows wait to be released to a cooling water spray at Batemen Mosida Farms near Elberta, Utah County, in 2009. Photo by Francisco Kjolseth/The Salt Lake Tribune 8/4/2009

A Juab County judge has slapped a California attorney with a $3,000 fine for zapping a witness with a trick pen during an October trial over whether electrical currents from a Delta power plant are harming nearby dairy cows.

In an order released this week, 4th District Judge James Brady wrote that electricity expert Athanasios Meliopoulos was testifying against dairy farmers who claim that “stray” currents from Intermountain Power Plant in Delta were harming cattle.

As part of his testimony, Meliopoulos claimed that 1.5 volts, the equivalent of a AAA battery, could not be felt by a person. Los Angeles -based attorney Don Howarth, who represented the dairy farmers, gave a child’s gag pen to Meliopoulos. According to the package label, the retractable pen zaps the user with “a harmless powerful shock,” Brady wrote.

Howarth told Meliopoulos that the pen contained a 1.5-volt AAA battery and challenged Meliopoulos to “go ahead and push the back of the pen and tell the jury whether you feel it or not,” Brady wrote.

Meliopoulos, a Georgia Tech professor, pushed the pen and “received a strong electric shock, which caused his body to jerk and to drop the pen,” Brady wrote.

However, the pen did not contain only a AAA battery, Brady wrote — it also contained a transformer that boosts the battery voltage to up to 750 volts. The package label warns against its use by people who are older than 60 — such as Meliopoulos — and people in poor health.

Howarth didn’t ask Meliopoulos any questions about potential health hazards before giving the pen to him, Brady wrote.

Brady agreed with IPP attorneys that the pen demonstration deliberately misled jurors, who ultimately were released in November without a verdict when a mistrial was declared in connection with an unrelated issue.

Brady also deemed Howarth’s conduct to be “battery of a witness.”

“Witnesses ... are called up to answer questions,” Brady wrote. “... To add a requirement that they do this in a physically hostile environment where they may be subjected to electrical shocks without warning is far removed from the decorum and professionalism required by attorneys, and has no place in a court room.”

Brady ordered Howarth to pay $1,000 to Meliopoulos and $2,000 to IPP. It also restricted him from cross-examining any IPP expert witnesses in the next trial.

IPP attorneys had asked the judge to revoke Howarth’s admission to practice law in Utah.

Brady declared a mistrial in November after the dairy farmers raised doubts as to juror impartiality; a plant manager had written a message to employees that the plant would be shut down if the dairy farmers won the lawsuit, and at least one of the jurors had gotten that message through a family member, attorneys claimed.

ealberty@sltrib.com