Facing Criminal Charges to Save Animals, Part IV: Planning Legal Strategy

Australian animal rights activists protesting during a criminal
trial of an activist for trespassing an animal culling operation.

Part I
Part II
Part III

Trials of animal rights activists can be seen as the site of convergence for two very different legal events: a criminal process against an individual charged with a crime, in which the individual faces the prospect of conviction and punishment (and the dilemmas involved in going to trial vs. pleading guilty), and a landmark case for animal rights. By contrast to impact litigation on issues of animal cruelty, though, the latter meaning is a bit more indirect: the accused are pointing the finger at their own accusers as lawbreakers (of anti-cruelty laws), perpetuators of illegalities (through the pursuit of ag-gag laws that might be struck down as unconstitutional), and moral transgressors (through engaging in cruelty.) This duality in the function of the trial has complicated implications as to the legal strategy employed by the activists.

To begin, there is the choice of legal representation. Cases pursued as impact litigation might attract the attention and services of organizations such as the Animal Legal Defense Fund (ALDF) or animal law clinics at law schools (such as the program here at Harvard.) As Bruce Wagman explains here, there's often a crossover between the litigation and the academic world in this field (Also see this great piece by Kathy Hessler). But most of what these organizations do is litigate with the animals as clients, as it were (now there's an interesting issue of animal personhood), against factory farms, laboratories, zoos, amusement parks, etc., and they might find it difficult to litigate with a human lawbreaker as a client. This problem might reflect a more general rift in the animal rights community between the "moderates" and the "radicals": Taimie Bryant writes about this rift, and the hesitation of the former to get behind the latter to provide legal representation, in this piece. There is also the more mundane issue of legal specialization: is it best to hire a criminal lawyer, or an animal rights advocate, for a criminal case involving animal rights advocacy? And how might the choice of representation inform the issues to highlight at the trial? This might also bring out interesting attorney-client conversations (and potentially disputes) as to the value of provocative strategies. 

The activists on trial seek support, financial and otherwise, and the emphasis on one aspect of the case over another might impact the sources of said support. Presenting oneself as an idealistic, otherwise normative person in risk of a considerable prison sentence might be a persuasive strategy in obtaining support on a personal basis from sympathetic people, but it also centers the person, rather than the suffering animals, in the debate. Presenting the criminal case as an effort to produce a landmark outcome is also fairly complicated. If the activists are seeking a jury trial, even in the happy event that they are acquitted, they will not obtain a reasoned, written decision supporting animal personhood and rights (or even animal welfare), and it might be anyone's guess whether the acquitting verdict is the product of legal analysis or jury nullification due to sympathy for the defendants. So, is the desired outcome a conviction, followed by a reversal on appeal with a written judicial opinion? And if so, how might that affect the ways in which support is sought? 

Activists packing the court at Rachel Ziegler and Jon Frohnmayer's
trial for open rescue activities, Sep. 9, 2019.
Photo credit: Paul Picklesimer on Facebook.

And what about behavior during the criminal trial? Is filling the courtroom with supporters wearing animal rights t-shirts a winning strategy, or might it prove a turnoff to a jury, especially in a rural farming area? Again, the answer might lie in the question what the activists are trying to achieve at trial.

And then there is the legal strategy itself. The endgame for some (albeit not all) animal liberationists is some recognition of animal personhood. There are fierce debates in the literature about how to conceptualize animal personhood, of course. The granddaddy of animal liberation theory, Peter Singer, seemed revolutionary when the book came out, but in light of later writings on the topic, his writing on food and medical experimentation does allow for some exceptions. Tom Regan's take on animal personhood relies on the animals' cognition. In their provocative comparison of the animal rights and pro-life movements, Sherry Colb and Michael Dorf rely on the concept of sentience. And  perhaps the most radical formulation of animal personhood is Gary Francione's abolitionist theory, which finds no exceptions to the prohibition against using animals for any purpose. And against these philosophical theorists, whose views are, perhaps best articulated as biocentric, we have the ecocentric views of environmental ethical thinkers, for whom the perpetuation of a species or an ecosystem might be more valuable than the protection of individual animals (see more about this debate in a post I wrote a while ago in my oft-neglected cooking blog, of all places.) The big question is - to what extent would prospective jurors need to "buy" any of these formulations of animal personhood, be they strong or weak, to find that the necessity defense applies and the activists were justified in saving the animals? Since the necessity defense requires a balance of harms, is it necessary that the harm be suffered by someone who has some sort of legal status, some sort of claim to rights? Or are rights and suffering fundamentally different? And to what extent will the activists' lawyers expect jurors to parse out these different theories? Again, Helena Silverstein's wonderful Unleashing Rights is relevant here: as she points out in other legal contexts, “lawyers in the movement rarely speak of animal rights in the courtroom.” But importantly, “rights talk itself is not out of bounds in the courtroom. When rights talk is used, however, it is not in the form of animal rights but in the form of human rights. . . lawyers and movement organizations advance human rights claims such as the First Amendment right to freedom of speech in order to promote animal rights.” Is this true in the criminal context as well?

Finally, given the jury's power to nullify (big debates here about what jurors should do when confronted with unjust laws or their application), there is the question of whether the activists' lawyers should invest in crafting their arguments within existing law (that is, arguing that the necessity defense, as currently framed, applies to open rescue) or changing the law (that is, arguing that the necessity defense should change because the current conceptualization of animal suffering/rights/personhood in law is insufficient or unjust.) What the lawyers choose to do is also a question of jurisdiction: there might be some states in which it is easier to work within the interpretation of the necessity defense, and those might, ironically, be places in which the defense is not codified, which might create a first-impression situation that gives the lawyers an interesting blank canvas to argue rights and personhood. 

But underlying these important considerations is an important feature of the criminal process: pursuing animal rights through the criminal process means that there is a human individual who might face conviction, and even incarceration, at the end of the day. My last blog post on the project discusses that.

Part V