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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, officially sentenced to hard time for theft, vandalism, and minor assaults. Meanwhile, in Great Britain, a judge recently granted a reprieve to a German shepherd named Dino that 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 could not happen here. Who ever heard of putting an animal on trial? For starters, there was Gifford Pinchot, a governor of Pennsylvania. In 1924, he put a Labrador retriever named Pep on trial for killing his cat. The dog was found guilty and sentenced to life imprisonment in the state penitentiary. Pep lived out the rest of his days as Inmate C2559. In fact, dogs are effectively put on trial all the time under vicious-dog laws in the United States, Britain and elsewhere. These laws authorize individuals and animal control officers to file complaints against dogs that have attacked people or that 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 is 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 lineup by the dog-bite victim. America’s most famous death-row dog was Taro, a 3-year-old Japanese Akita sentenced to death under New Jersey’s vicious-dog law. Taro’s owner appealed the sentence, and the litigation dragged on for three years. Taro became Bergen County’s Prisoner No. 914095 and was incarcerated in the sheriff’s K-9 unit. In a drama worthy of Hollywood, a last-minute pardon came from then-Gov. 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 had 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 U.S. Court of Appeals threw out the claim, 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?” ALL GOD’S CREATURES Despite the 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 numerous trials of wild animals that damaged persons or property. As early as 864, a hive of bees that had stung a man to death in Germany was ordered destroyed. This judgment against the 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 that had destroyed crops. Courts 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 was their rigorous attention to procedural fairness. Not only would the courts issue summonses to the animals, reading them aloud in church or nailing them to trees, but also defense counsel would be appointed to represent the beasts at the community’s expense. And the animal defenders were no slouches. Bartholomew Chassenee, who went on to become one of France’s leading judges, established his reputation in 1522 by defending the rats of Autun, who were accused of eating the province’s barley crop. Chassenee 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 of 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 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, the plaidoyer pour les insectes. (This may be contrasted with today’s method of proceeding against insects, as set forth by S.C. Johnson & Son: “Shake well. Point nozzle at insects and spray.”) 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 reason, dressed 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 more than 100 recorded examples of such animal trials, most of which can be found in E.P. Evans’ magisterial “Criminal Prosecution and Punishment of Animals” (1906). EVIL BY NATURE? Nonetheless, the notion that animals are capable of committing crimes was troubling to medieval jurists due to the doctrine of mens rea — the idea that a crime requires some measure of intent. For decades, 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. While animal trials were all the rage in France and Germany, the English remained cool to the idea. 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’s seizing a piece of “guilty” property sounds distinctly outmoded. Or does it? Consider asset forfeiture laws. The federal government may seize property used in the commission of a crime. If a man robs a bank, the government may not only convict the man, but 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. Adam Freedman, a senior associate at New York’s Schulte Roth & Zabel, is the author of “Elated by Details” ( Mayhaven 2003). This article previously appeared in the New York Law Journal Magazine, a Recorder affiliate.
Seeking Op-Ed Contributors The Recorder is looking for additional voices for its Ad Hominem pages. Ad Hominem columns range in length from about 500 to 1,500 words. Topics include the practice of law, administration of justice, and major legal controversies � with a focus on California. We are particularly interested in women writers, or someone who can write regularly about working at a large law firm. Humorous columns are encouraged. This is not an entry-level job — apply only if your writing is sophisticated and sharply analytical. Please send no more than three writing samples to: Jack Cheevers Associate Editor The Recorder Email: [email protected] Snail: 10 UN Plaza, 3rd Floor, San Francisco, CA., 94102

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