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Phoenix points finger at homicide suspect in Mouseketeer civil lawsuit

The city of Phoenix argues that it’s the homicide suspect who should be held legally responsible for letting Dennis Day’s body decompose, not the police department that failed to find Day’s body for nearly nine months inside his home.

In the city’s latest effort to dismiss a $1.7 civil million lawsuit filed by Day’s sister, nieces and nephew surrounding the condition of Day’s remains, a lawyer representing the city and a Phoenix police lieutenant makes a host of arguments touching on everything from rights for next of kin to a person’s remains under Oregon law to no requirement for police to deliver a “successful investigative outcome” in the Oregon constitution.

Lawyer Molly Silver, representing the city, acknowledged in a Monday filing in U.S. District Court in Medford that circumstances behind Day’s decomposed body are “doubtlessly tragic,” but Silver disputes the family’s accusations that the police department was negligent in the nearly nine month missing persons investigation that ended at Day’s home.

“A loved one’s death is always a tremendous loss, and the circumstances of Mr. Day’s passing and the decay of his remains are doubtlessly tragic,” Silver writes, adding that the family’s claims of tortious interference with a corpse is “not warranted.”

Day’s sister, Nelda Adkins of Coalinga, California, along with Day’s nieces and nephews, allege in their $1.7 million lawsuit that Phoenix police and Lt. Jeff Price compromised the Jackson County District Attorney’s Office’s ability to prosecute homicide suspect Daniel James Burda, 38, because of the state of Day’s remains.

The city’s lawyer Molly Silver, however, argues in a Monday filing that the family’s civil lawsuit should target Burda rather than the city.

“The pleadings allege that Mr. Day was killed by Mr. Burda and his body hidden,” Silver writes. “Under these circumstances, Mr. Burda is factually and legally responsible for the decay of Mr. Day’s body, not police.”

Burda was a handyman who lived at Day’s home at the time Day was last seen alive in July 2018, and was arrested the following year on felony manslaughter, criminally negligent homicide and abuse of a corpse charges in Day’s death. A trial date is still pending while the Jackson County District Attorney’s Office awaits an appeal on a judge’s ruling earlier this summer surrounding restrictions on the evidence they’ll be allowed to present to a jury at trial.

The Oregon Attorney General’s office submitted their motion surrounding the Jackson County judge’s ruling Aug. 21, filings in Jackson County Circuit Court show. The next hearing in Burda’s criminal case is a pretrial conference set for Dec. 7.

Day was best known for his childhood acting role as a Mouseketeer on the first two seasons of Walt Disney’s “Mickey Mouse Club” television series in the 1950s, but he’d lived in Southern Oregon since the late 1980s, according to earlier news reports. He was last seen alive in July 2018, and his disappearance became national news in early 2019. The search for Day ended the following April, when cadaver dogs reportedly found his body inside the main room of his Phoenix home underneath a pile of clothes.

Last month, Day’s family submitted a printout of an online map as evidence showing that Day’s body decomposed for nearly nine months in his home located two blocks from the police station and “quite literally under their nose.”

Silver called the argument “factually devoid of merit.”

“The location of the Phoenix Police Department is not material to whether plaintiffs (Day’s family) had a legally protected liability or property interest, or whether their due process rights were violated during the course of the missing persons investigation,” Silver wrote.

The family also submitted last month a Phoenix police email to the family during the missing persons investigation. In the message dated Feb. 13, 2019, Phoenix police Lt. Jeff Price Day’s relatives they’d searched the home extensively and didn’t recommended the family not come up from California to Southern Oregon.

Silver argues that Phoenix police were not required under Oregon’s constitution to involve them.

“Law enforcement personnel are not constitutionally required to give crime victims the right to become involved in the investigation and proecution of a criminal defendant at the pre-charging state,” Silver writes.

She further argued that police weren’t constitutionally obligated to have a “successful investigative outcome.”

“Plaintiffs’ (Day’s family’s) disappointment in the quality of law enforcement’s investigation of Mr. Day’s disappearance is not civilly actionable because defendants (the city of Phoenix and Lt. Price) were not constitutionally obliged to provide any services, aid or successful outcome,” Silver writes.

The next hearing in the lawsuit is a courtroom conference call on the city’s motion to dismiss the lawsuit scheduled for Sept. 30.

Reach reporter Nick Morgan at 541-776-4471 or nmorgan@rosebudmedia.com. Follow him on Twitter @MTCrimeBeat.

Photos of Dennis Day distributed by friends during the missing persons investigation.