After the Webinar: Courtroom Animal Advocate Programs. Q&A with David Rosengard

Webinar presenter David Rosengard answered a number of your questions after his presentation, Courtroom Animal Advocate Programs: Approaching Animals as Quasi-Party Crime Victims. Here are just a few of his responses.

Audience Question: I see a lot of animal abuse cases on social media and it’s heartbreaking. It seems very difficult to remove a pet unless there’s video evidence of abuse. I’ve been on calls with law enforcement, asking them to remove the animal, but the sheriff or police officer will tell me they can’t do anything because animals are property unless there’s video evidence. And of course, video evidence is very difficult to get when it’s in somebody’s house. What can we do to help animals who are being abused inside the home then?

David Rosengard:

This is a great question, and I’m actually going to start with the ‘because they are property’ observation. I’m going to flip it around. So, animals being property actually makes it easier to get them out of these scenarios. Compared to, for example, child abuse cases. Getting a child separated from their parents, and dissolving parental rights is incredibly difficult, as it should be. Because animals are property, we have an entire body of law that is well-versed in forfeiting property, in seizing property, and in searching property. And that’s what we’re talking about here. So, video is definitely a great way to facilitate that. But it’s not the only way, the core question for an animal case in terms of seizing that animal, is going to be, is there probable cause to believe that the animal is being abused [or otherwise treated with criminal cruelty]? Because that would go to the animal being evidence, and then you can seize the evidence. And also, depending on the intricacies of your particular state law, there’s going to be, typically, some sort of legal process set up to say, if an animal has been seized, what happens to permanently dissolve the ownership of that animal. So, for example, the gold standard for these throughout the United States is what is called a bond-or-forfeit law. The way that works is when an animal is seized pursuant to a cruelty case, the custodial agency (which could be the government, which might be an animal rescue) will draft up an estimate on how much caring for that animal is going to be because when they have the animal, they need to provide minimal care. That’s the law. You have to provide animals in your custody with minimum care. And then an attorney will go to the owner and say, this is how much caring for your animal is going to cost. You’d have to pay that if the animal was in your care because that’s the law, you can’t neglect your animal. The fact that the animals are being cared for by a different agency, shouldn’t absolve you of that cost, so either we want you to put up a bond covering the animals’ needs, or if you don’t want to do that, you can just forfeit the animal. And then, if the bond is put up, the animal remains the technical property of the defendant, and typically lives in foster or in custody. If the defendant doesn’t want to pay for the animals’ care, it dissolves the ownership interest, and the animal can be adopted out immediately. If not, the animal just waits until the end of the trial, and then hopefully if the defendant is convicted, part of that conviction is that they don’t get to have the animal back because depending on the circumstance of the crime, probably returning that animal to that environment is not healthy.

Audience Question: Assuming defense attorneys might oppose adoption in states without CAAP laws, where does other opposition come from, if any?

David Rosengard: Sure. Well, we have, to be honest not gotten a lot of opposition from the defense bar, and I think that’s largely because what advocates end up talking about is usually not, ‘did the defendant do it, or did they not do it?’ Advocates will end up talking about what kind of sentencing would help the animal, what kind of sentencing will prevent us from being back here in the future, and what does the animal need right now? And that’s sometimes the defense is usually neutral on. For example, the defendant wants to be found not guilty and wants their animal back at the end of the trial. They probably want their animal to be in a good home pending that, so they get an animal back that’s happy and healthy. Similarly, a lot of defendants might rather have a conversation about paying for the animals’ veterinary bells rather than spending an extra month in jail. We usually get opposition from groups that are concerned that this fundamentally changes the status of animals. So, we’ve heard some groups say, well, this makes animals legally the same as humans, which it doesn’t. We’ve heard some people say, well, this gives the animals the same standing as the government or a defendant, which again, it doesn’t, it makes animals quasi-parties, not actual parties. I think that, as there is in any case where we talk about where animals are positioned under the law, people get really nervous, because the legal system is a very historically conservative profession. I don’t mean that politically. I mean we don’t like change, it scares us because we like the law to be something predictable, and whenever we talk about change, people get a little freaked out. So, part of what I hope people take away from this is that CAAP laws are not about changing the ‘do animals have human rights or not question?’. It’s not about whether animals are the same parties as defense or prosecution. It’s about improving the courts’ ability to know what the animal needs. And it’s about recognizing that animal victims are someone and their experience should count. And I don’t think that’s at all as controversial as people sometimes fear.

Audience Question: Is there a downside to having animal advocates involved in the process?

David Rosengard: So, I hear I’m eagerly awaiting the data published from Connecticut that Jessica Rubin and her team out of UConn are doing. I think it’s, at least from the anecdotal responses I’ve gotten, the things I’ve heard from talking to prosecutors, defense, counsel, judges, etc. I the downside I’ve heard is that you do have another attorney in the courtroom. That’s another voice speaking, it’s another set of documents to read that can take some additional time. My understanding from talking to people involved in this is that you may end up saving some time in other areas by getting a clearer read of the law. But, yeah, it absolutely means there’s another motion to read. There’s another person addressing the court. And so, your hearing might be a little longer than it would be otherwise. I would argue that, again, if you take Bella’s case, it saves you time in the long run of having to figure out what you do with this dog 10 months after she’s been stuck in the kennel. But it would mean that your additional hearing might be 45 minutes or an hour rather than half an hour.

Audience Question: Is this program everywhere or is it just in certain states again?

David Rosengard: So, right now, this program only exists in Connecticut and Maine. There is a sort of, a similar program in Onondaga County, New York and there are a number of states that are looking at adopting it. New Jersey is probably the closest, which is why I use their draft bill as an example. New York and Florida are also looking at this, and I know there’s some interest in Illinois as well and Nevada. So, how close that all is to getting past is a that is a question for the politics team. I am on the criminal team, so I cannot weigh in on how close we are to passage. But I do know it is seeing more interest.

Audience Question: In the states, where CAAP legal arguments win the case, can they be appealed, such as to the US Supreme Court, especially if these are only state CAAP laws?

David Rosengard: So I will parse this out in two ways. One question is what happens if the court decides not to appoint an advocate—if the prosecutor, or defense, or an animal rescue group says, “Your Honor we’d love you to appoint an advocate,” and the judge says, “I don’t think I need one. This is a tool in my toolbox that I can refuse to use.” Every CAAP law to date has been very clear that is not appealable. This is a tool the judge can use or not use at their discretion. If a judge does choose to use a CAAP attorney—if they do choose to have an advocate–that advocate’s contributions don’t really go to winning the case or not. Because, again, the advocate isn’t arguing for or against conviction. They’re presenting more information about what the animal needs. There hasn’t been any case yet, where a defendant or the state has appealed the involvement of a CAAP advocate. I think the only phase of a trial that might be appealable would be sentencing and there, it would still be difficult because the CAAP advocate doesn’t have the power to overrule any sentence. The CAAP advocate is really simply saying, “Your Honor, you’ve heard from the defense what kind of sentence they would like. You’ve heard from the prosecution what kind of sentence they would like. Here is a memo outlining what kind of sentence we think fits the animal’s needs. So, here’s a memo talking about veterinary bills. Here’s a memo talking about whether the defendant should be allowed to have custody of this animal in the future. Here’s a memo talking about is this animal bonded with the defendant.” Conversely, there are scenarios where the defendant doesn’t need to be separated from the animal, they need to be educated about what the animal needs. And I can certainly think of cases out of Connecticut where the CAAP advocate’s recommendation was, ‘let’s fill the needs that defendant has to provide the care that they want to provide to their animal that they just didn’t realize the animal needed.’

Audience Question: Are there any CAAP laws in place in Canada that you know of?

David Rosengard: So, there are not. We, just last weekend, wrapped up this year’s national animal law conference. That’s mostly USA-focused, but we did have some Canadian attendees. And there was some discussion of sort of animal representation in the Canadian context. And to be clear, I’m not a Canadian criminal law or animal law attorney. But my impression is that in that system, it’s coming from the same common law British DNA as the American Criminal Justice system. The state monopolization of criminal action is a little less complete than it was in America. So, I think there is some inherent, more opportunities for victim involvement. And I know there are attorneys in Canada who are using those kinds of arguments to advocate for animals. And tragically, off the top of my head, I am forgetting the name of the big Canadian Animal org. But as we talk, I will Google it, and then I’ll tell it. Just very quickly, the name of the animal org in Canada is Animal Justice. They do amazing work. That is animaljustice.ca

Audience Question: One of the issues we see in Hawaii, is that there are judges, not many, who just don’t have any regard for animal victims. It doesn’t seem like a CAAP law would necessarily address that, but do you have any thoughts?

David Rosengard: So, I think that that question, is partially absolutely accurate, and partially, maybe a little too despairing. So, I’ll try to provide an affirmation and then a hopeful counter. So, there are absolutely scenarios where judges just don’t think animals count. And they’re not interested in appointed CAAP attorneys. Sometimes sometimes it’s all animals, sometimes that certain kinds of animals I have. I’ve seen oral arguments where judges have said, “It’s just chickens, what does it matter?” and might have different opinions if it was a cat or a dog. I’ve seen some cases where judges say, “It’s just a cat or a dog.” So, I think that on that level, the CAAP program isn’t a panacea. It’s not going to solve all the challenges we have in the criminal justice system, whether that’s investigatory resources or whether it’s judges caring about animals. That’s why I and my colleagues here at the Animal Legal Defense Fund, as well as what Justice Clearinghouse does, really are dedicated to educating judges about the importance of animal cases in and of themselves. So, to go all the way back to the beginning of the presentation, we produce bench books for judges, like this one that explains why animal cruelty matters. If you were a juvenile and family court judge and you don’t already care about animals, this is why you should care, because it’s going to impact the juvenile and family court issues you’re dealing with. So, part of it is just doing educational work, doing outreach to judges separate from CAAPs. I think the other piece is, at least from what I’ve seen happen, CAAP and CAAP attorneys involved means there’s someone who can explain to the judge in legally relevant terms why that animal matters. And sometimes that really speaks to judges. Because, again, when we talk about every attorney in the courtroom having a job and having a professional duty, the professional duty of the judge is to follow and operate within the law. And so, it can be very helpful to have someone versed in animal law, who can present to the judge, why the animal matters in that legal context.

Audience Question: Are you aware of cases where the jurisdiction does not have a CAAP or similar statute? But the judge still allows pro bono representation of the animal?

David Rosengard: I am not—other than US v. 53 Pitbull Dogs. And again, I think a judge could do that: judges have very broad authority to appoint special masters for all kinds of things. This bizarrely enough has come up recently in national news, around the question of, what is the fate of various federal documents at Mar-a-Lago. You may have heard the federal judge, in this case, appointed a special master to review the documents. So, judges could appoint special masters. In cases, they could say, “Your job is to do this specific thing for me.” But we don’t often see that happening. Again, because without a statute on point, I think it’s hard for judges to remember that’s there and it’s hard for judges to do the groundwork of setting up the process. It’s a lot easier if there’s a procedure already in place. And the judge knows, here is a list of attorneys I can choose from who are trained and validated to do this work.

Audience Question: How do we get the bench books to give to judges?

David Rosengard: So, if you send me an e-mail at this address (action1@aldf.org), I can give it to you. I’m sure that we’ll be bringing them up in some of our other webinars, and probably will have them as part of the handouts for those. I was just thinking solely about CAAP, so I didn’t include it in our handout list today.

Audience Question: Holly asked, David, thank you for the great program. I’m a Maryland licensed attorney, although, not practicing and I currently work for a national non-profit providing training and technical assistance in criminal cases. Do you have any info on whether Maryland and or the District of Columbia has a CAAP program? And how would I go about getting pre-screened or getting trained to do this type of legal work if I haven’t done this before?

David Rosengard: Certainly, so neither DC, nor Maryland currently has a CAAP program, but hope springs eternal in my heart. We’re always looking to expand the number of jurisdictions that are interested in that. And I know Maryland and DC, both have a history of being aware of animal issues. In terms of what the screening would look like, It depends on each individual state. So, for example, Connecticut doesn’t really have a pre-screening program. I think that’s largely because Connecticut is a small state with a closely-knit legal community. Some of the standards that we set up in other states, for example —– essentially allows whatever agency is going to maintain that list of attorneys to set the standards. So usually, we recommend something like doing X many hours of CLE around animal or criminal law or going through XYZ Training webinar. The Animal Legal Defense Fund and I know some other groups are certainly happy to put together those trainings and provide them to different states and agencies. And again, that’s something we’re partnering with the UConn Law Clinic on to produce Guides and Content to allow agencies to meet whatever the screening threshold is for their particular jurisdiction.

Audience Question: David, you talked about there being a difference between what ACOs and CAAP advocates do. How can courtroom animal advocates interrelate better and work with ACOs better and more effectively on behalf of animals?

David Rosengard: So, one of the things that are really becoming clear to me, and I think a number of other people working in the CAAP space as attorneys, is that we can’t rely on our instinct [rather than making it explicit in law]. My instinct is to go to the ACO and figure out what’s going on because they’re the people who have been there, the people that know. But it’s good for us to spell that out in the CAAP law to, say, first, as a CAAP attorney, you have a duty to check in with the custodial agency with the ACO. That’s part of your job when you get appointed. I think we also want to make sure that these training materials that we provide in CAAP really emphasize the importance of integrating the ACO perspective and providing some of that legal legwork. So, for example, going to the ACO, I’ll use Bella Lugosi’s case, I would say, “I’ve been appointed as an advocate in Bella’s case. Can you tell me how he’s doing? How long she’d been in custody? Is she doing okay in the kennel? Is she degrading over time?” What would you like to see happen? Would you like to see her placed in a foster home? What do you think would serve her behavioral and physical needs? And then, partnering with the ACO, and with the other custodial agencies to package that information in the right legal framework and get it before the court. Again, that was a case where it was an afternoon of legal work. But you need an attorney to be able to do that work and file it. But you also need that attorney to talk to the ACO. I would not have been able to help the city attorney write that motion without hearing from the ACOs about Bella’s condition. So, there’s a critical partnership there and one of the things that I’m looking to do in our model law revision is frame that as a mandatory duty.