After the Webinar: When the Evidence Needs a Home. Q&A with David Rosengard

Webinar presenter David Rosengard answered a number of your questions after his presentation When the Evidence Needs a Home: Best Practices for Pre-Conviction Forfeiture Statute Use. Here are just a few of his responses.

Audience Question: Could you restate what the gold standard is you were talking about? Something was the gold standard. Could you restate what the gold standard was that you were referencing?

David Rosengard: Yeah, so the gold standard in pre-conviction forfeiture is the bond or forfeiture statute. But, those are, that’s the broad family of statutes that say to defendants, “Look, you can either put up a bond to pay for your animals, reasonable care for the next week, two weeks, 30 days, whatever your statute says, or, if you don’t want to pay for your animals care just surrender the animal.” And the Animal Legal Defense Fund has a position statement we can make available, sort of outlining why that’s the gold standard and how it works and I know that’s been useful to courts and advocates, prosecutors, and others in the past. So, if that’s something that would be good for you, just send an e-mail to that entry on the screen and we’ll get you a copy.

Audience Question: Wouldn’t it be preferable to just get custody as soon as possible rather than having the animal linger until trial at all?

David Rosengard: Well, it’s part of the balance involved in dealing with the animal status in the criminal case, which is the animal remains the defendant’s property. And if the defendant wants to keep their property and hasn’t fallen foul of any legal line that says they shouldn’t have their property, then in respect to the defendants’ rights, we don’t want to deprive them of that. So, to draw into that question, I think if the question is isn’t it better for the animal not to sit in a kennel pending trial? The answer is absolutely yes. But there are ways to do that, that you can do even if the defendant has put up a bond, for example. The defendant’s counsel, the prosecutor can certainly sit down and come to an agreement where they say, look, we know this animal isn’t thriving in a kennel. We know the trials going not going to happen for another 3 or 4 months, and we know there’s no more evidence to get out of the animal. How about we all agree that the animal can live in a foster home for that time? And then, the animal can live in a happy, healthy environment. The bond covers the animal’s medical costs and you don’t have an issue with the animal potentially degrading over time, or the defendant potentially losing their animal outside of that legal process.

Audience Question: Could a defendant simply ask that their animals go to a different home, such as a family member or a friend?

David Rosengard: They’ve been certainly can, a lot of defendants do. The issue that’s going to come up is that is going to be whether that’s a safe place for the animal by that, I mean, healthy and secure in terms of dealing with the animals needs but also, is it secure in terms of the animal staying put. That’s particularly relevant to the areas where the animal it’s likely to be forfeited if there’s a finding of guilt on the post-conviction side. So, in many cases that I’ve encountered, the state is not thrilled about the prospect of the animal going to some third party. It does happen sometimes, but typically the state’s interest is to say, this animal was at a bad place to begin with. We think that’s a serious enough matter to make it criminal, and we want to make sure that the animal is going to be in a good place going forward. And so there needs to be some sort of negotiation about what that good place is. Sometimes defense counsel and prosecutors could reach an agreement that’s a mutually agreeable third party. Sometimes it just ends up being a local rescue agency or the custodial agency because that’s who physically and according to statute took possession of the animal.

Audience Question: Would creating a local ordinance on this bond or forfeiture statute be acceptable or accepted?

David Rosengard: Oh, that’s a really good question. It would depend on how it played with your state-level equivalent. So here, I want to be really careful to underscore that every state is going to work differently with this. But there are some states where explicitly, local municipalities don’t have the authority to overrule that kind of State function. Local municipalities have to have the minimum of the state statute but can go above and beyond it. So, depending on where you’re at, you might be able to supplement your state’s statute with something that goes into greater detail. You might be able to, if you have no state statute, you might be able to do one at a local level. It’s really going to depend on what jurisdiction you’re in and what the larger, the technical phrases, home rule question is as to whether the state statute or the local statute precludes further activity.

Audience Question: In Massachusetts, recent court case law states that if the defendant does not have the ability to pay, then the bond security posting is not issued by the court. Has any other agency had this problem in getting a bond?

David Rosengard: So, I know there are some statutes that specifically envision what to do when defendants can’t pay and often use a similar mechanism that would be used to determine if someone is able to avail themselves with a court-appointed counsel. I think that sort of statutory solution is preferable because it lays out a clear legislative policy and system for saying, “If you can’t pay, you don’t forfeit the animal, this is how we deal with the animal in the meantime.” I do know that I’ve heard of that Massachusetts case I don’t know of other jurisdictions that have reached that kind of holding where without a statutory pronouncement. There’s been a decision that people who can’t pay are able to avoid forfeiture. And I think it really comes back to you’re looking at those policy questions why bond or forfeiture in this case exists, which is the presumption that when you own an animal, you take on certain responsibilities for that animal. When you decide that you’re going to have a dog, or a cat, or a herd of cattle, you take on the responsibility for providing them with the legal minimum necessary food, water, shelter, etc. And if you didn’t have the money to do that, you shouldn’t have the animal. So, I, in being sensitive to issues about criminalizing poverty and drawing lines around who can and can’t benefit from the loss of an animal in their life. I think that conversely, it’s important to recognize that animals do deserve to have the necessary care they should receive. And if you, if someone for whatever reason can’t do that, then sadly they’re probably not someone who is in a position to have an animal. I would want to refresh my memory on the Massachusetts case. Remember how exactly they got there? But I think that’s the needle they’re trying to thread. And I would rather see that addressed through some sort of legislative mechanism that says, here’s how we figure out with what your ability to handle the bond is. If you can’t handle the bond, here’s what happens.

Audience Question: Can you expand on how the donations do not impact the bond? We had that issue come up with a judge on the Neutzler case in Tennessee.

David Rosengard: Oh, yes, yes. I remember the Neutzler case fondly. For those of you who are really into pre-conviction forfeiture, Tennessee is often on the forefront of litigation. Because Tennessee has not come to quite a solid decision is some other states on how okay this is and Neutzler is the most recent round of that litigation which worked out favorably for the constitution compliance of bond or forfeiture. But the issue there in terms of being able to raise money and having that knotted back the bond. Again, it’s one that, I think, is best handled through Legislative pronouncement because it really does involve public policy decisions. And it’s not, as a result, the kind of thing that courts are always well disposed, well equipped to handle. The notion is essentially that, in almost every animal cruelty case, a rescue agency is going to want to be able to tell the public, these are the kinds of cases we work on. And they’re usually raising money for their work in general. Because every rescue agency, at least every one I’ve encountered, they’re working on cases with known defendants, they’re working on cases where the defendant is never identified, in cases where animals are abandoned in cases where animals are you know, discovered neglected. Not necessarily through any wrong, doing of a defendant that because the animal’s person died and the animal’s left in a house. So, the agency typically has a whole lot of costs from cases where there is no defendant to recover from, and they’re often fundraising to cover all their costs. And so the public policy decision that the legislature like the Oregon legislature has come down to is saying, “We recognize that when you’re educating the public about the good work you do, you’re not just educating about the work you do”… for this particular dog. Or in the case of Neutzler, Chuck, the Duck who is a particularly photogenic, rescued, waterfowl. You’re educating the public about all the work you do. And so, the defendant bearing the costs of their case doesn’t necessarily go to the public deciding to donate to your good work in general. I think that that’s an argument that defendants often raise to try to encourage judges to set bond amounts low. It’s an argument that I think misrepresents the reality of how animal rescue works. Again, I don’t, I don’t know any animal rescue’s out there that are making a lot of money on cruelty cases? It’s a drain on their resources, and I think that’s why it’s important. It’s most useful to have the legislature step at and say, look, we recognize that there’s a separation between the person who owns the animal, you should pay for your animal’s care, and the public who loves animals you want to donate to a non-profit. Those are different things.

Audience Question: When animals have been seized in our state, there is a mandatory pretrial status hearing required within 14 days. It’s a new law, but it seems that prosecutors and defense attorneys are not using it in the best interest of the animals. Any suggestions?

David Rosengard: Oh. This is interesting and please e-mail me, because I would love to talk about this more. So, one of the things I would want to know is, the statute setting that mandatory pre-trial hearing status conference up. What does the statute tell us? What the purpose of that conference is? I would like to think the purpose is to address the issues we raised today, which is, this animal needs a place to live, this animal needs veterinary care, this animal needs food, this animal deserves to be at a place where they are well socialized in having their physical and emotional and mental needs met. But if the statute doesn’t say that then we’re going to have a question about why the statute is there and what we can argue the statute is there for. This is going to sort of be a preview of my June 15th talk that you heard about earlier. The issue after that is, who in a criminal case can hope the court focused on animal needs. And the answer is a lot of people can do that. You know, the prosecutor certainly can. The defense attorney certainly can, the judge could do it themselves, but it’s not necessarily the job of any of those three people. And prosecutors are busy, defense attorneys are busy, judges are busy, I get that everyone has limited resources, they’re trying to get through their docket as fast they can. One option that some states, Connecticut, and Maine have looked at is instituting a courtroom animal advocate program. Where the court has the authority to appoint a neutral third-party lawyer to advocate for the animals’ interests or the interests of justice. So that attorney in that kind of context, if the judge wanted them to, would be able to, for example, say not speaking for the defense or prosecution. I’m just pointing out that this animal is going to be stuck in a kennel for the next six months. That’s not great for the animal. Let’s all sit down to trying to figure out a solution. But please e-mail me. I’d love to talk to you about your specific jurisdiction’s issues and dig into what’s going on in the statute. It sounds fascinating.