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Wednesday, December 29, 2004

Column: Legal Beagles

The Chicago Tribune reported in September that the Indian state of Punjab has created the world’s first monkey jail. At present, there are 13 inmates who have been officially sentenced to hard time for theft, vandalism, and minor assaults.

Meanwhile in Britain, a judge recently granted a reprieve to a German Shepherd named Dino who had been sentenced to die for biting a woman. That decision came after three years of litigation on Dino’s behalf, including arguments before Britain’s House of Lords and the European Court of Human Rights (that’s right, Human Rights).

I know what you’re thinking: those things couldn’t happen here. Who ever heard of putting an animal on trial?

For starters, there was Gifford Pinchot, a former governor of Pennsylvania. In 1924, Pinchot put a Labrador retriever named Pep on trial for killing the Governor’s cat. Pep was found guilty and sentenced to life imprisonment in the State Penitentiary. Pep lived out the rest of his days as inmate C2559.

Death Row Dogs

In fact, dogs are effectively put on trial all the time under vicious dog laws in the U.S., Britain, and elsewhere.

These laws authorize individuals and animal control officers to file complaints against dogs that have attacked people, or that merely seem likely to do so. There is a hearing at which a judge or public health official must decide whether the dog meets the statutory definition of “vicious” or “dangerous.”

Although the dog’s owner may be involved in the proceedings, there’s no doubt that it is the animal itself that is on trial, and it is the animal that faces punishment, be it confinement, removal from the jurisdiction, or death. In one Texas case, the accused dog was actually picked out of a dog lineup by the dog bite victim.

America’s most famous death-row dog was Taro, a three-year old Japanese Akita who was sentenced to death under New Jersey’s vicious dog law. Taro’s owner appealed the death sentence, and the litigation dragged on for the next three years. In the meantime, Taro became Bergen County’s prisoner No. 914095 and was incarcerated in the Sheriff’s K-9 Unit. In a bit of drama worthy of Hollywood, a last minute pardon came from then-Governor Christine Todd Whitman.

Dogs have been sued for money damages, too. In 2000, an Indiana prisoner sued a police dog, alleging that the dog was a “person” who violated his rights while “acting under color of state law.” The dog, named Frei, was a sympathetic defendant, having received numerous awards for valor in the line of duty.

The Seventh Circuit threw out the claim against Frei, holding that dogs are not “persons” whether they act under color of state law or not. The court added: “A suit against a dog poses a host of other problems. Was Frei served with process? Did he retain [a] lawyer . . .? Was Frei offered the right of self-representation under 28 U.S.C. §1654? What relief does [plaintiff] seek from a dog – Frei’s awards, perhaps?”

Bees, Worms, and Rats

Although we detect a note of sarcasm in the Seventh Circuit’s opinion, the fact is that there is a long and distinguished history of lawsuits against animals.

In the Middle Ages, ecclesiastical courts conducted countless trials against wild animals that did damage to persons or property. As early as 864, a hive of bees that had stung a man to death in Germany was ordered to be destroyed. Oddly enough, this judgment against bees was rendered by the Council of Worms. (Worms being a city in Germany, but still.)

In the typical case, ecclesiastical prosecutors went after swarms of insects or rodents who destroyed crops. In such cases, court would order the animals banished from the district. If they failed to leave, the animals risked excommunication or anathema, these being official curses.

The most extraordinary feature of these early trials is their rigorous attention to procedural fairness. Not only would the court issue summonses to the offending animals, reading them aloud in church or nailing them to trees, but it would appoint defense counsel to represent the beasts – at the community’s expense.

And the animal defenders were no slouches. Bartholomew Chassenée, who went on to become one of France’s leading judges, established his reputation in 1522 by defending the rats of Autun, who had been accused of eating the province’s barley crop. Chassenée argued, among other things, that the rats had not been properly served with process and that, in any event, the presence of cats in the neighborhood made it impossible for his clients to appear in court.

In the 1570s, there was a long and expensive litigation brought against certain beetles that were said to be devouring the vineyards in St. Julien in France. The beetles’ lawyer, Pierre Rembaud, put up such a strong defense that the townspeople offered to settle the case by granting the insects their own plot of land.

It would be a mistake to think that these trials were put on as jokes, with a nudge and a wink to the audience. They were conducted with great respect for precedent. According to one ancient treatise, a lawsuit against insects would begin with a formal complaint filed by the inhabitants of an infested town, the plaidoyer des habitans (plaidoyer is the French root of “pleading”), after which the defendants filed their answer, plaidoyer pour les insectes. This may be contrasted with today’s method of proceeding against insects, as set forth by Messrs. Johnson & Johnson: “Shake well. Point nozzle at insects and spray.”

This time it’s personal

While ecclesiastical prosecutors were targeting pests, other litigious Europeans were bringing actions against a veritable menagerie of domesticated animals in secular courts.

Pigs were the worst. They wandered the streets freely and, unfortunately, had a taste for small children. In 1386, a French court sentenced a sow to death for killing a child. The convicted pig was, for some inexplicable reason, dressed up in human clothes and hanged in the public square. A century later, six infanticidal piglets narrowly escaped the gallows in Savigny-sur-Etang, when the court held that they had been corrupted by their mother’s bad example.

There are over a hundred recorded examples of animal trials. At the end of the 17th Century, a Russian goat was tried and banished to Siberia for its misdeeds. In 1712, an Austrian court sentenced a dog to confinement in a public pillory for biting the leg of a prominent citizen – proof that dogs have always enjoyed a juicy burgher.

The notion that animals are capable of committing a crime was troubling even to medieval jurists due to the age-old doctrine of mens rea – that a crime requires some measure of intent. For decades, leading scholars wrestled with the apparent inability of animals to form a guilty intent. By the 13th Century, they had figured it out: animals are agents of Satan. But of course.

The English Deo-dandies

While animal trials were all the rage in places like France and Germany, the English were cool to the idea. Instead, English law held that if any animal, or indeed any inanimate object, caused the death of a person, it would simply be forfeited to the King to be sold for the benefit of the poor. The technical term for this is deodand, from the Latin deo dandum, “to be given to God.” The deodand, which was necessary for “the pacification of [God’s] wrath” according to a 1607 treatise, was also on the books in colonial Maryland, Virginia, and Rhode Island.

Nowadays, the idea of the government seizing a piece of “guilty” property sounds distinctly outmoded. But is it? Consider today’s asset forfeiture laws, under which the federal government may seize any property used in the commission of a crime. Thus, if a man robs a bank, the government may not only convict the man, but it can also seize the getaway car. Why is that? To make sure that the car doesn’t do it again? To set an example for other cars?

Perhaps we’re not so advanced as we think. At least, that’s what my cat tells me.

(This column originally appeared in the December 2004 issue of New York Law Journal Magazine).

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