Animal Law Podcast 109: The Case That Didn’t Happen

[00:00:07] Mariann Sullivan: I am super excited to hear about this case. I was just saying that because this case didn't end up going anywhere, everybody was revved up to hear all about it, and then it just sort of fizzled out, but it's still going, apparently, and there's still a lot to learn, and I want to know all of it.

But let's start with the basics. What is Ridglan Farms, and who were the defendants in this, what turned out to be a criminal case?

[00:00:28] Chirs Carraway: Yeah, so Ridglan Farms is essentially a factory farm for beagles to be used in scientific experimentation. It is essentially a series of warehouses that breeds beagles in rural Wisconsin. They mostly breed beagles for outsourcing to other companies that do testing, such as shoving laundry detergent down their throats, infecting them with various diseases, stimulating like rotator cuff injuries, things like that.

But they also do research themselves on the beagles, mostly vaccine tests. The defendants in the case were three activists, our client, our project's client, Paul Picklesheimer, Wayne Hsiung, those two names should be familiar because they were the defendants in the Smithfield trial in Utah, as well as Eva Hamer, who were all three charged with felony burglary and felony theft, for entering into Ridglan Farms to do an investigation and leaving with three criminally neglected and abused dogs.

[00:01:29] Mariann Sullivan: What started them to have an interest in this particular, I mean, there's a lot of places doing animal abuse all over the country. What brought their attention to Ridglan Farms? I know that Wayne and Paul have frequently done factory farms of farmed animals before. So how did this all start?

[00:01:45] Chirs Carraway: Well, I think it really stemmed from local activists in Wisconsin that were working with Wayne and Paul on other campaigns, just sort of talking to them about what they've been researching in their own backyards. And, you know, certainly, Wayne has a soft spot, well, for all animals, but especially dogs based on his undercover investigations on dog meat farms in China.

So I think it was just sort of natural and, you know, a lot of these places like Ridglan like to sort of hide in plain sight because a lot of people just don't really know that they exist. And there are very few dog breeders. I mean, Ridglan and Envigo are really the two main ones domestically.

[00:02:22] Mariann Sullivan: Yeah. I was actually, because we just heard of the news, Envigo getting into all sorts of trouble, and I was wondering whether they were connected, but they're not, they're competitors?

[00:02:30] Chirs Carraway: Yes. Envigo is a separate company that's really an offshoot of Huntington Life Sciences.

[00:02:36] Mariann Sullivan: Yeah, I just looked that up and saw that and I was like, I had no idea. Of course, Huntington was the infamous subject of the SHAC investigations, I guess in the 90s, where people ended up going to prison for a long time. Not investigations, protests. But now we're doing a very different kind of approach and we are doing investigations. Or Wayne is.

Maybe you are, but I'm not. So you alluded to the investigation and the rescue, but give us some more details. Not excruciatingly horrible details because everybody listening is already on board, but kind of paint the picture and tell us about those dogs that they ended up taking out.

[00:03:10] Chirs Carraway: Sure. Well, activists entered with cameras, particularly this 360 degree 3D camera that Direct Action Everywhere had been using around that time. And, you know, when I say factory farm for dogs, I mean, that essentially is what comes to mind with Ridglan. It is continuous fluorescent lights they never turn off, dogs on top of cages, on top of cages, feces on the floor of their cages, on the floor.

These dogs have obvious signs of distress, spinning in circles, I mean the sound and the smell are overwhelming. You know, it is the antithesis on what we would want, an environment for a dog to be in. But that's exactly what Ridglan does to these animals because they view them as products.

[00:03:58] Mariann Sullivan: You mentioned that they were charged with felony theft and felony burglary, I think. Is that right? And what kind of sentences were they facing?

[00:04:06] Chirs Carraway: They were facing a maximum, I believe, of about 12 and a half years in prison. It's been a couple of months since I've run the math, but, you know, these were felony charges that were punishable by a potential prison sentence. So, if they were found guilty, you know, the judge certainly could have sent them away to prison for a very long time.

[00:04:24] Mariann Sullivan: And who were the dogs that they rescued? And what kind of condition were they in? And why did they choose those particular dogs?

[00:04:30] Chirs Carraway: They ended up rescuing three dogs, and you know, quite frankly, there were more than three dogs that were showing signs of great need for care and to be removed from that situation, but it came about that they had to sort of quickly leave. And they did what really any person, I think, in that situation, when standing face to face with these animals and these terrible conditions, they decided, I'm not going to leave empty-handed.

And three of the dogs, one of which, her name is Julie, she was blind. At the time she was a puppy, can't see, can only turn left, showing clear signs of psychological torment. And the other two dogs were older dogs, who had additional psychological issues as well as injuries to their feet due to improper caging, which is something Ridglan's been cited for continuously.

And I think what was particularly interesting throughout the case is that we learned that Ridglan will cull dogs, meaning they'll kill dogs for space, for no other reason. And the qualifications for the dogs they choose to murder, are dogs that aren't ideal for testing, which presumably a blind dog would not be an animal that would likely be picked for testing.

And they also chose to cull older dogs, for which the two other beagles that were rescued, they were past the age in which Ridglan would breed them. So the reality is, especially during that time, is that these three dogs not only would have endured a lifetime of torture, but likely would have just been killed for space because it's cheaper just to murder a dog than it is to provide it a healthy, happy life.

[00:06:06] Mariann Sullivan: So, I know in other cases, the DXE cases, they pretty much immediately upon leaving wherever they were, they went and had the dogs examined. Did they do that here? And, in addition to providing the medical care that was needed, gathered the evidence that might be needed going forward?

[00:06:21] Chirs Carraway: Yeah, they brought the three dogs to a local vet. I think the vet indicated that all three obviously were suffering psychologically. They had issues with their paws. And then subsequent testing on Julie confirmed that she was blind with potential neurological issues.

[00:06:38] Mariann Sullivan: As far as I know, correct me if I'm wrong, this all happened in 2017, which was pretty long ago at this point. And then there was this huge gap between the charges being filed and the case actively proceeding to trial. Was it just because of COVID? Do you think there were other reasons there was so much delay in this case?

[00:06:55] Chirs Carraway: COVID certainly, but I think that the largest reason, this case was filed near the end of the statute of limitations. And it really came about because of an article that was published in The Intercept called Bread to Suffer, Inside the Barbaric U. S. Industry of Dog Experimentation, written by Glenn Greenwald and Leighton Woodhouse, which really took Direct Action Everywhere's investigation and published a story on it at large scale. And it was in reaction to that, that these three defendants were ultimately investigated and charged. Because of the bad press that Ridglan faced.

[00:07:27] Mariann Sullivan: Yeah, I hadn't realized that. That makes a lot of sense. So, finally, they decide to go to trial. Let's talk a little bit about the motion practice, unless there's something before this motion in limine regarding the affirmative defenses that you want to mention, that seems to be like the crucial thing to discuss in this case, because those defenses are so interesting in all of these cases. So, you argued for the submission to the jury of, I believe, 3 affirmative defenses.

And can you just briefly explain what an affirmative defense is, as opposed to another kind of defense and, particularly in Wisconsin, what the defendant has to show, if anything, in order to be entitled to assert an affirmative defense? And also, I guess we should talk about the burden of proof or the burden of going forward and the burden of proof.

That's a lot all in one. But, give us a lesson on affirmative defenses in Wisconsin.

[00:08:16] Chirs Carraway: Sure. Well, an affirmative defense is essentially a defense that otherwise excuses criminal conduct. You know, for instance, self defense is an affirmative defense. It is generally against the law to assault someone. However, if you are acting in self defense, as an affirmative defense, you can commit the crime, because that defense protects you.

And specifically, oftentimes, the state has to disprove whether an affirmative defense applies, or would control, which is fairly consistent with the burden of proof in a criminal case. Now, in order for a defendant to have a judge instruct the jury on an affirmative defense, a defendant has to put on some evidence.

The threshold is not particularly high. And the evidence must be viewed in the light most favorable to a defendant. And that's even if the evidence is slight, weak, insufficient, inconsistent, or of doubtful credibility. So in many ways, it's not a particularly demanding threshold, to require the state to disprove an affirmative defense.

[00:09:17] Mariann Sullivan: All right. So let's take them one by one. The first was called defense of another. Can you explain what the elements of this defense are? I mean, it's a pretty common defense and what facts you intended to show in order to entitle the defendants to it, both to make the showing and then ultimately what you were ready to prove at trial.

[00:09:34] Chirs Carraway: Yeah, well, I actually want to sort of take a step back because the affirmative defenses applicable in Wisconsin would obviously vary state to state. And I actually thought Wisconsin had fairly nuanced affirmative defenses that would fit the scenario. But, you know, it really comes down to a fundamental question.

If an individual observes someone criminally abusing an animal, even if that abuser owns the animal in the eyes of the law, would any law protect them from intervening? And I think that's a fairly common sense answer, of course it would.

[00:10:06] Mariann Sullivan: Right. If you see somebody beating a dog over the head, are you allowed to do anything?

[00:10:12] Chirs Carraway: Exactly.

[00:10:12] Mariann Sullivan: Can you punch him?

[00:10:14] Chirs Carraway: Or just interfere? You know, trespass onto their property. Get between them, threaten them, you know, a litany of things. And, the answer is yes. You know, obviously the law would protect that. It would be absurd to construe the law otherwise. So I really wanted to start from that sort of premise because we believe that Wisconsin really had three separate affirmative defenses that could apply in this situation.

And, you know, quite frankly, the defense team, we sort of went back and forth about which one we felt was the strongest because they all have their unique nuanced elements and their positives and benefits. But you know, I think the one that really felt the most logical is a defense of others because, in our view, obviously animals are others worthy of protection. And you know the statute for self defense allows you to use reasonable force to protect another, from what you reasonably believe to be imminent or the act of current unlawful force against them.

[00:11:16] Mariann Sullivan: The word used is another?

[00:11:19] Chirs Carraway: The statute uses a third person. Sometimes it'll use another. For instance, in some of the case law, it'll sort of go in between. And that's really the crux of that defense is whether a person is exclusively limited to human beings, or whether it should be construed broadly to include animals.

I think we can look through, not just Wisconsin law, but general common law, where we can find replete examples of personhood being given to corporations, cities, counties, election campaign groups, you know, Citizens United, for instance, giving free speech right to corporations.

Conversely, we can also see parts of legal history which has precluded rights of personhood to other human beings on the lines of race and gender and things like that. So, to simply sit back and say, person only applies to human beings, we think it's just an absurd reading on the policy reasons about why we have this defense.

But also it's just inaccurate when we look at our history. You know, again, I think that defense also fits more with our world view that animals are people worthy of rights. They're sentient creatures, and they're worthy of recognition and legal protections. And, you know, what's interesting is that the state, quite offensively, in their response said, well, no, animals are just things and the defense doesn't apply to things, which was, I think, a rather inaccurate reading of the law.

[00:12:45] Mariann Sullivan: Yeah, that seems like a bad move. I missed that in their papers. I did notice that they constantly, instead of using the word person, use the term human being, which kind of totally answers the whole question of whether this statute applies. I didn't notice that they said animals were the equivalent of things or were things. Which, yeah, I think saying that kind of highlights, for anybody who's not that familiar with these arguments that oh, there's something wrong here, that's not right. It's like when the prosecutor in the Utah case likened the pigs to canned goods on the shelf. Of course they're treading a thin line as well and the laws are not very carefully crafted here to reflect what you, I think rightly, say are the principles that most of us believe.

That, of course, this would apply to an animal in some sense, even if the word person doesn't apply to an animal in other statutes, it's a little, I mean, it's a hugely important area of the way the law is evolving. And this is a hugely important case, in talking about that. All right. So, let's get back to the actual statutes.

Now that we've sorted out that the fundamental problem in all of these is, you know, does the term person or what was the other one? Someone?

[00:13:58] Chirs Carraway: Another.

[00:13:59] Mariann Sullivan: Another, include animals? Which is the fundamental. I mean, once it does, you're pretty much entitled to a defense here. And if it doesn't, you're pretty much not entitled to any of them.

So it is a crucial question, but let's talk about the elements of the defenses as well. If you can just lay them out.

[00:14:14] Chirs Carraway: That, you know, essentially, covers sort of the elements for defense of another. It includes the right to use reasonable force if you reasonably believe that another person, other, or a third person is going to be subject to unlawful physical force. So obviously, animal neglect or abuse would be that type of what we argued was unlawful force against the animals, unlawful conditions.

And obviously, our client's actions of removing these dogs, taking them to veterinary care, was reasonable given the circumstances.

[00:14:49] Mariann Sullivan: And the second cause of action was coercion. How did that apply?

[00:14:53] Chirs Carraway: So, you know, coercion is, quite frankly, what most people think of when we talk about the common law doctrine of necessity. So, Wisconsin statute permits the affirmative defense of coercion when there's a threat by a person, other than the actor or the actor's co conspirator, that causes the actor to reasonably believe that his or her act is the only means of preventing imminent death or great bodily harm to the actor or another.

And which causes him or her so to act, to prevent that. So in short, you can break it down as one, there has to be a reasonable belief that two, there is a threat to another, and three, that that threat is of imminent death or great bodily harm, and four, that that belief is that you have to act to otherwise prevent that.

[00:15:45] Mariann Sullivan: Yeah, that fits.

[00:15:46] Chirs Carraway: And again, there, you know, our argument was that the threat was the constant threat of animal neglect, just by how Ridglan inherently and systemically treats their dogs, and the great psychological trauma primarily, was causing great bodily harm. I mean, you know, for instance, Julie, she's blind and this was not annotated on any of Ridglan's medical records, which, quite frankly, were well below the standards of what you would expect. And we were intending on presenting evidence by a veterinarian, who would discuss in great depth the types of records that any veterinarian would keep. Again, that's another thing that originally had been cited for or noted in inspection reports is the failure to adequately document and check the animals for injuries.

And I think Julie is a clear case, the animal that, for whatever reason, but due to the conditions at Ridglan, was left blind..

[00:16:43] Mariann Sullivan: Yeah, and I want to get a little bit more into those records, but can we just go quickly over the third affirmative defense? Because as I think you know, it's my very favorite defense ever. And I believe there is a statutory necessity defense in Wisconsin, though it has wording that I haven't seen in other statutes.

Can you tell us a little bit about what that requires?

[00:17:03] Chirs Carraway: Yeah. Wisconsin's necessity defense is very narrow in the sense that it follows the basic common law doctrine of necessity that it generally otherwise allows you to do an act that is criminal if it is to avoid a worse harm. But where Wisconsin is different than most jurisdictions is, it has to be an act of nature that is causing the situation that you're seeking to avoid.

The classic law school example of you're on a boat in bad seas or in a storm and you have to tie your boat up to someone else's dock, which would ordinarily be some form of trespass. You know, you learn in law school, your first year of law school class, that that is what's covered by necessity. So in that respect, it was a pretty high barrier for us to sort of argue that the negligent conduct of human beings, in this case Ridglan, amounted to a natural physical force, especially given some case law that has really further merited to exclude actions by human beings.

And you know, to be frank, necessity has never been granted in any of these cases.

[00:18:11] Mariann Sullivan: My hope lives on. What can I say?

[00:18:13] Chirs Carraway: And, you know, we're hoping to change that in California with Wayne Hsiung's appeal, out of the Sonoma County conviction that the Animal Activist Legal Defense Project is doing, where the central issue that we'll be raising is challenging the court's ruling that necessity, the common law doctrine of necessity, can never apply to animals.

We are optimistic that we will ultimately win that, taking inspiration from the environmental cases, which has seen decades of attempts at necessity defenses being denied, and then Washington v. Taylor, where the Washington Supreme Court essentially permitted necessity for civil disobedience related to climate change.

So we're optimistic that ultimately we will have the opportunity to get a necessity or necessity like defense permitted, and quite frankly, I was optimistic that we would have The court permit us one of these defenses because again, it goes back to that central question. Clearly, the law should protect you if you're intervening to stop someone from beating their own dog to death, right?

So the problem for the court, the question the court was being asked to solve is which of these defenses would apply? We think reasonably all three could apply for this situation.

[00:19:23] Mariann Sullivan: Was it important to establish that the defendants had reason to believe that reporting Ridglan to the authorities would be futile? I know you've seen that in other necessity cases, but that doesn't seem to have been, I mean, in other cases where the necessity defense specifically has been put forward, but that doesn't seem to be that relevant here that the defendants had to say, well, we called the authorities.

[00:19:44] Chirs Carraway: Well, I think there are two responses. I think one is sort of the urgency, with respect to the conditions that they saw that they wanted to remove them to a vet. And I think the second is just the reality of the futility of calling g authorities. You know, I think the district attorney argued, they didn't alert Ridglan to the issues with the dogs. That would like be asking the fox to come check on the hens in the hen house, you know, they were the ones that caused the issues.

And, certainly the defendants were aware of the history of reporting and nothing being done. I mean, we have the United States Department of Agriculture's own inspector general determining that the efforts for enforcing animal welfare policy are, quote, ineffective and, quote, basically meaningless.

They were also aware of the history of inaction, specifically, in Dane County, from reports about cruelty at Ridglan, to even the instances where PETA has had to go to court to seek judicial intervention where the Dane County District Attorney's Office has refused to act.

Specifically, there were two cases, in which Wisconsin judges found probable cause that there was criminal animal neglect or cruelty at the University of Wisconsin. And the Dane County District Attorney's Office did nothing.

[00:21:01] Mariann Sullivan: I mean, Are they particularly resistant to investigating these things? Or do you think it's typical of DA's offices? Or is there something going on there?

[00:21:10] Chirs Carraway: You know, I think in our experience across the country, what is generally viewed as animal cruelty by ordinary individuals, is not when it's done by a corporation, when it's systemic. And there is a great resistance to even acknowledging that animal abusing industries are in fact abusing animals.

We see this in the Dane County District Attorney's Office refusing to even investigate Ridglan. We see this in Sonoma County, which is, I think, the greatest example of authorities there being given evidence of animal neglect and animal cruelty at Sunrise Farms, at Petaluma Poultry, at Right Guard Farms.

And instead, there's a concerted, aggressive effort to prosecute the whistleblowers, the investigators.

[00:21:57] Mariann Sullivan: This is what we always run up against, but it proves too much. They would have to put everybody out of business. Once you start going down that road, it's hard to defend anything they're doing as not fitting the definition of animal cruelty.

[00:22:11] Chirs Carraway: And, I mean, the reality is, is, you know, the standards for animal care imposed by the state are minimal.

[00:22:18] Mariann Sullivan: You mean for the dog in this kind of a facility?

[00:22:21] Chirs Carraway: Just in general, whether it's farmed animals or research animals, the state does not impose substantial burdens on adequate care. I mean, the standards that the state imposes are far from sufficient, because frankly, there are no standards, to have those animals in those conditions are used for those purposes.

But what's actually there, it's the bare minimum. And, you know, these places like Ridglan, Envigo, Reichart Farms and Sunrise Farms and Petaluma Poultry in Sonoma County, they're not even meeting the bare minimum of standards.

[00:22:52] Mariann Sullivan: And what about cruelty law? Would the Wisconsin cruelty law apply to these animals? I think that at some point, Ridglan argued that it did not. Is that right?

[00:23:02] Chirs Carraway: Yeah, that's correct. And that's likely going to be a central question in the motion to compel prosecution that our project has filed against Ridglan, in which, you know, Ridglan argued in a brief that the court did not read because Ridglan is not a party to this motion to compel prosecution.

[00:23:18] Mariann Sullivan: We'll get to all of that in a second, but before we do that, can you just sum up like, why you felt it was important to assert all 3 of these defenses? Were there really any significant differences among them as they applied to this case? And were you pretty satisfied? Not necessarily that you would win because you do animal law, so that would be ridiculous. But that you had a really good case here of asserting these defenses, that they were very legitimate.

[00:23:43] Chirs Carraway: Yeah, you know, I think each of these defenses had their own unique questions. Defense of another really put us directly into arguing personhood. Coercion talks more about an imminent threat and necessity had us dealing with acts of nature. But I think they all adequately address the fundamental question. Can you intervene to protect an animal?

And I think what we've noticed from these open rescue cases is that, you know, juries typically agree with that instinct. If you see an animal suffering, the instinct is to alleviate that suffering. And, we felt pretty confident that regardless of which defense we were granted, a jury was going to come away so shocked and disgusted with the conditions that Ridglan kept these animals in, that they would have acquitted these defendants, and given them the legal basis and the right to rescue. And, you know, quite frankly, I felt optimistic that the judge would have taken this legal question seriously. Certainly the district attorney didn't. I think, you know, the district attorney, to open their response to the motion, they called the present motions, disturbing attempts by the defendant to convert this criminal proceeding into an illegal and shameful publicity event.

And then 24 hours later, the district attorney dismissed the case. And, you know, actually, I thought it was disappointing because this Dane County District Attorney's Office had these individuals under felony indictment for years. And as soon as important legal questions were going to be discussed, as soon as it became clear that Ridglan was going to be exposed for what they do, they give up. And the true reason they dismissed the case is to shield Ridglan from accountability.

You know, it was the first time in my career that I've ever stood up and objected to dismissal of a felony case.

[00:25:37] Mariann Sullivan: I can imagine that doesn't come up every day.

[00:25:40] Chirs Carraway: Because it was very important for our clients to have their day in court and expose Ridglan.

[00:25:45] Mariann Sullivan: You little bit buried the lead here, so let's just draw that out a little bit. After this motion was filed right on the heels of this motion. I don't know whether anything else happened as well. The prosecutor just came in, and this was after years of these charges pending, and at least months, if not a year, of them being actively prosecuted, and moved to dismiss the charges. All right, so kind of set that scene. Why do you think they did it? Do you think they were just afraid of losing? Or do you think they were afraid of having the facts exposed?

[00:26:17] Chirs Carraway: They stated that Ridglan had received death threats,

[00:26:20] Mariann Sullivan: Oh, yeeaahhh...

[00:26:21] Chirs Carraway: And that's why.

[00:26:22] Mariann Sullivan: Because every time, like, you know, there's a criminal prosecution and then the DA receives death threats, the logical thing to do is just to drop the charges. It's so ridiculous that, if somebody in the mafia gets charged with a crime and they get death threats, uh, just go, oh, never mind, I'm not gonna charge you.

[00:26:41] Chirs Carraway: And you know, like, reporting by the ISMIS did indicate there were reports to law enforcement of these threats, but you know, at the end of the day...

[00:26:48] Mariann Sullivan: Regardless, though, can I just speak over you for a second? Regardless of whether they were true or not. That's just not how you respond to death threats, like, give in to them and drop the charges. They still might come and kill you, like, if people want to kill you, like, why would that stop them?

The idea would be to go after them more vigorously at that point, not to like, I'll say, oh, nevermind. We didn't mean it. But anyway, I got emotionally carried away, Chris, go ahead.

[00:27:11] Chirs Carraway: Well, that, you know, and that's what happens. You know, I was a public defender for a decade. Any time in any other case in which there's allegations of people threatening witnesses, the state always doubles down. Which, you know, is not uncommon, but in this case, it was used as a pretext. I think the reality of why they dismissed this case is because on the day we were to argue these motions, is one, frankly looking at the state's response, it was a very clear difference in the level of engagement with the legal questions. And I think, particularly with the judge we had, we were optimistic that we would have gotten a groundbreaking ruling in favor of rescuing animals.

But also that same day Ridglan was due to show up in court and respond to a subpoena that we had filed for records, which among other things would have confirmed and required them to produce records of their culling practices, which, you know, frankly, I thought was one of the most shocking facts I learned about Ridglan who, to my knowledge, doesn't adopt dogs, instead they just kill them.

You know, as I mentioned, I think this was clearly an attempt by Ridglan and the prosecution together, to essentially shield Ridglan from accountability and scrutiny. And, you know, I think it was very disappointing that the case was dismissed. It always reminds me of the Tolstoy quote, as long as there are slaughterhouses, there will always be battlefields.

[00:28:30] Mariann Sullivan: Yeah good point.

So they came in, they moved to dismiss the charges. Did you oppose it on the record, and argue that the charges should not be dismissed? And tell us a little bit more, you mentioned that you thought you had a good judge. Can you just tell us a little bit more about the judge and why you thought that you were going to get a fair hearing?

[00:28:49] Chirs Carraway: Oftentimes in these types of cases, particularly when we're requesting really novel legal theories, you know, theories that aren't established by precedent, that really challenge our relationship and the law's relationship with animals, the judges are pretty blunt in terms of not tolerating that sort of argument.

I mean, we can look at how the judge oversaw the Smithfield trial, and refusing a lot of evidence of animal cruelty that colored the defendant's conduct. During Wayne Hsiung's Sonoma trial, the defense was really precluded quite aggressively from talking about why they did their conduct to rescue animals, even though the central issue in that case was their intent.

But in Wisconsin, you know, the judge came to the case with a more open mind, and appeared to be more fair, and that was his reputation amongst the bench. So, you know, we remained pretty optimistic, and there were some, you know, helpful, fair pretrial rulings, sort of unrelated to any substantive issues that gave us confidence in the judge's view of the case.

[00:30:01] Mariann Sullivan: One would think that having gone through all of this, that it was going exactly how it would be expected. I mean, they knew what they had to hide. They knew that bringing these charges would be likely to bring some of this out into the public.

Do you think that they're kind of surprised that animals have some good lawyers on their side? Like that the legal work is stepping up and as the cases step up, there are more lawyers who are interested in this. Do you think that took them by surprise? Do you think they thought it might be inept? Did they think the defendants would plead out?

[00:30:34] Chirs Carraway: Yeah, I think there are a couple things. I think, one, their focus on this case is to spread fear amongst activists by aggressively going after investigators and rescuers. And I think, two, is that prosecutors arrogantly think these cases are easy for them, and in half the open rescue cases, it hasn't been.

I vividly remember, our project, I was counsel on the Foster Farms rescue trial, in which two defendants, Alicia Santurio and Alexandra Paul, rescued two chickens from the back of a transport truck outside of Foster Farms, and I remember they added a felony prosecutor to the case on like the second day, who came up to me and said, you know, this case, it's just going to be a layup for me.

[00:31:14] Mariann Sullivan: What a charmerr.

[00:31:16] Chirs Carraway: Yeah. And we acquitted our clients when they were on video removing these two criminally negligently abused animals. So I just don't think these prosecutors really understand that these are not ordinary cases, and I don't think they anticipate these cases to be tried like homicide cases, with really in depth, aggressive, zealous representation in motions practice.

[00:31:40] Mariann Sullivan: Yeah, I think that makes total sense. All right, I want to get to the next, because people may think that the story has ended, but it has not. And that's why Steffen's sitting here waiting to talk about his part of this case. But before I do, what was the coverage like? Was the coverage good?

I've seen some articles in something called the Isthmus Times, which is both difficult to pronounce and I've never heard of it, but I'm not from Wisconsin, but I don't know how big that is. Like was that a big paper? Were other Wisconsin papers following this? Were you getting good coverage or did you think that the coverage would really start when it went to trial?

[00:32:13] Chirs Carraway: You know, I think the Isthmus is sort of, you know, every town has their sort of like independent paper. The Isthmus, I think, fills that space, and the reporter who covered that, Bill Luters, has covered animal issues, generally. You know, the other lawsuits by PETA to get a special prosecution of animal cruelty at the University of Wisconsin.

So we were gathering press as we were coming up to the trial, and I certainly think once we had the actual trial, regardless on the outcome, there would have been substantially more press. And, you know, I think I pretty safely can say for all three defendants, they would have gladly taken whatever punishment if they were found guilty, if it meant a wide audience got to learn about what Ridglan Farms does, which quite frankly, I look at the footage of Ridglan Farms and I look at the footage of the animals at Envigo, and it's night and day for me which one's worse. And it's always Ridglan Farms. And that says something, given that Envigo received a historic fine for Animal Welfare Act violations.

[00:33:16] Mariann Sullivan: Yeah, $35 million, which in big business, maybe that's not a lot of money. In animal law, that's an unbelievably large amount of money. All right. So, the case was crazy. The case was compelling. The case had like all of these great legal arguments, unbelievable facts, and the case just went away one day, but it didn't go away.

So Steffen, tell us about the next steps. I've seen references to the motion to compel prosecution and the petition to appoint a special prosecutor. Are those essentially the same thing, or am I talking about two different things?

[00:33:48] Steffen Seitz: Yeah, those are the same thing.

So after the case was dismissed against the activists, the goal was still to shine a light on what's going on in Ridglan. And so we didn't want to just give up there. And Wisconsin has this unique statutory provision that allows a private party essentially to petition a court to appoint a special prosecutor.

And you just have to show two things. You have to show that there's probable cause to believe a crime was committed. And the D. A. has refused to prosecute. And so, essentially, we wrote a petition showing that there's a long history of refusal by this D. A. to do anything about the crimes being committed at Ridglan Farms.

There's overwhelming evidence to believe that Ridglan Farms is engaging in animal cruelty.

[00:34:23] Mariann Sullivan: So, what did you argue in your petition?

[00:34:26] Steffen Seitz: So, we argue that Ridglan is sort of at least doing three violations of Wisconsin's animal cruelty law. The first is that they have a felony violation of animal cruelty law because Wisconsin law forbids negligently or intentionally causing unnecessary pain and suffering to any animal. And it's a felony when that's done intentionally and it results in mutilation or death.

And so we actually had evidence from a former employee that they were engaging in what are essentially mutilations of dogs, where they would cut off their third eyelid, what's known as a cherry eye surgery, when those eyelids become infected. And they would do so without anesthesia, without veterinary supervision, and without any aftercare, sort of just throwing those puppies back into the pens with other puppies.

Every vet we showed this to was horrified and said, not only is this not veterinary practice, but this is so obviously cruelty and mutilation. So there's two other counts, the second count is that, essentially that, that Ridglan was confining these dogs in violation of animal cruelty laws that requires proper shelter for animals.

I mean, in particular, the law says that if the shelter is insufficient such that it causes abnormal behavior and stress, then that's a violation, a misdemeanor violation of Wisconsin law. And there's repeated footage and evidence from government inspectors, from investigators that Chris was talking about who went in, and from former employees showing dogs constantly engaging in these kinds of psychological distress behaviors, where they're spinning endlessly in their cages, they're bouncing back and forth.

And it's clear it's because they're in small cages with no enrichment, no access to the outdoors, no walks, nothing like that. And so that's also a violation of Wisconsin law. And then the third one is that essentially they have inadequate flooring that causes all sorts of injuries. So the dogs are kept on these mesh wire flooring.

And for the puppies, the gaps are so big that sometimes they'll slip right on through and they'll be caught all the way up to their chest. And for the older dogs, for a lot of them, the wire flooring actually cuts their paws, and also the feces can sometimes build up such that they essentially have cuts in their paws and walk in the feces that results in infections.

And again, there's government inspectors that have observed this, and Ridglan continues to have these kinds of violations, continues to not fix these cages, and so we also claim that that's a violation of animal cruelty law.

[00:36:28] Mariann Sullivan: What about exemptions? Are they arguing that any apply? What kind of exemptions are there in Wisconsin law?

[00:36:34] Steffen Seitz: Yeah, so Ridglan actually filed an opposition in the trial court, even though that's totally improper and the trial court immediately dismissed that opposition. But they essentially argue that there is an exception that applies. And in particular, the exception says that the animal cruelty chapter does not apply to teaching, research, or experimentation conducted pursuant to a protocol or procedure approved by an educational or research institution related incidental animal care activities.

In other words, if some kind of treatment of animals is done pursuant to an approved protocol at a research facility, then it's exempt.

[00:37:06] Mariann Sullivan: That's a pretty carefully worded exemption. I mean, wisconsin did a good job with, I mean, not that they should have an exemption at all, but that's a pretty well written exemption.

[00:37:16] Steffen Seitz: Yeah, and the short of it is that it doesn't apply because we're talking specifically about Ridglan Farms, the dog breeder, not any sort of experimentation that's being done. But also the wording, as you know, it is very careful. It's because it picks up on actually something that the Animal Welfare Act picks up on, which is that the Animal Welfare Act has different types of facilities.

So you have what are called Class A breeders, which are essentially breeder facilities under the AWA. And then you have class R research facilities. And class R research facilities are subject to slightly more stringent regulations. And the most significant of those is that they have to have what's called an Institutional Animal Care and Use Committee, or IACUC.

And these committees essentially have to approve whatever kind of animal treatment is done by the research facility. And so essentially what that exception in Wisconsin law is picking up on is that for those kinds of research facilities that are engaged in research, they might be exempt from the law.

But what we're going after isn't Ridglan the Class R Research Facility, but Ridglan the Class A Breeder, which is what, you know, 3, 000 plus dogs at Ridglan are simply being bred for sale. And so under no interpretation of the statute or the AWA could this exemption possibly apply.

[00:38:18] Mariann Sullivan: Well, it's really interesting. There's so much interesting in there. One of the things is that the fact that you're bringing this petition to prosecute them under the cruelty law, it doesn't really depend at all on the fact that that criminal trial happened. This could be used in a lot of cases.

I mean, Wisconsin, has all sorts of opportunities for animal lawyers, if there are violations of the cruelty law. It's so interesting that when you start looking at all different states, what different openings you can find. So that's an extraordinary law that you might be able to get a special prosecutor, if a prosecutor declines to prosecute. And the other thing that I wanted to go back to and pick up on, you mentioned this special proceeding that allows you to go to the court and ask for a special prosecutor, ask for these people to be prosecuted for this crime that the regular prosecutor is not bothering with. That is an ex parte proceeding. I mean, that's what you were saying, right? And they filed an opposition, pretending it wasn't an ex parte proceeding. I think, is this a part where I read in their papers that they kept talking of themselves as the victims of a crime should have a right to to go in there? Maybe that was when we get to the appellate level, but I just thought that that was hilarious.

I mean, after you drop the charges, you can't say that the former defendants were guilty. I mean, like, well, anyway, I'm getting carried away. All right. So you brought this motion, they tried to oppose it. Did they want a hearing as well? I don't know. But what happened with the court?

This was the trial court.

[00:39:46] Steffen Seitz: Right, so they, they file this opposition, and then we immediately filed a motion to strike, or the alternative reply, basically pointing out, look, the statute says it's ex parte, and the case law is even more clear than the statute, if you can imagine that. The case law says there's no right to participate in any way whatsoever.

So the case law is as clear as can possibly be. And Ridglan honestly doesn't even acknowledge this in their opposition. So my sense is they filed the opposition knowing full well that it wasn't allowed. They didn't care. They wanted the judge to read it anyways. Sure, it gets dismissed, but at least they can make their argument and the judge will read it.

I think we're fortunate we have a judge who seems to care a lot about the law, and she actually said, when we had our first year of status hearing, she said, I didn't read their opposition, I didn't read your motion to strike either, it's ex parte, they shouldn't have submitted it in the first place, so I didn't even consider it.

And so at that point, it's very clear, Ridglan isn't able to, you know, make this exception argument or any other argument in the trial court, and that's when they decide to escalate and file a writ in the appellate court.

[00:40:36] Mariann Sullivan: Right. And that's the thing that's actually ongoing now. I mean, we have a similar process in New York. I imagine a lot of states do. So this is when you can go to the appellate court, kind of in the middle of proceedings and say, wait a second, what's happening in the trial court is so horrendous that the appellate court should do something about it. Right?

[00:40:54] Steffen Seitz: Right.

[00:40:55] Mariann Sullivan: And, did they basically repeat their arguments?

[00:40:57] Steffen Seitz: So they made a different argument, actually. Because I think it's very clear from the statute in the case law that they have no right to participate. So now they've gotten even more creative, shall we say. And so they argue that Wisconsin has passed what's called Marcy's Law, which is essentially a victim's rights bill that gives victims all sorts of procedural rights in a criminal proceeding.

[00:41:14] Mariann Sullivan: Oh, this is where they kept referring to themselves as victims.

[00:41:17] Steffen Seitz: Right, so victims are allowed to speak at sentencing, at parole hearings, they have to get notified of any sort of, you know, activity in the case.

So Ridglan essentially argues that they were a victim in this earlier investigation that had that criminal trial Chris was talking about, and that because some of the evidence from that will be used in our petition, and because Wayne Hsiung is one of the petitioners, that they're still a victim in this additional special prosecutor proceedings. So essentially they're arguing this is a continued victimization.

[00:41:42] Mariann Sullivan: Oh, my God.

[00:41:43] Steffen Seitz: Which I think is ridiculous on multiple levels. The first level is they're not a victim of anything, right? The case was dismissed. They can't proclaim some sort of perpetual victimhood.

There's no sense in which you can ask for dismissal of a case and then still try to invoke victims protections as if there's an ongoing case. And then second of all, even if they could claim some kind of perpetual victimhood, this is a totally separate proceeding. This is a special prosecutor petition brought on behalf of different petitioners, alleging different facts under different statutory provisions.

I mean, it's simply a different case altogether.

[00:42:12] Mariann Sullivan: It really is unbelievable, but their secondary argument, I actually thought was better. I'm not saying it's winning, but it's better that they have a right to secrecy, like a grand jury is secret. Like, if you're just talking about bringing charges, it shouldn't be made public.

I mean, obviously we know why they want secrecy. So, how are you responding to that?

[00:42:30] Steffen Seitz: Yes, there's two responses. The first is that this petition for supervisory writ that they brought requires there be a plain duty that the trial court is violating. But whether or not you have proceedings open to public or not isn't the kind of non discretionary thing that can be a plain duty.

It's a totally discretionary multi factor test. And so it's simply not the kind of thing that is appropriate for this kind of petition in the first place. So, that's our first response. And I think it goes again to show that what Ridgen is doing is, they know full well that they might not win this argument, but they want to force the judge to at least read it so it's in her mind.

So I think they don't really care so much that the law doesn't actually permit this kind of argument to be made at this stage. They just want to make it anyway in hopes that the judge will see it. The second argument is that actually for this kind of special prosecutor proceeding, it's especially important that it's open.

So there's always a presumption of openness in our courts. But I think it's especially important for this kind of case, because the point of this case is to be a check on the district attorney, to be a check on the prosecutor's power. And so the only way that you can have that kind of check is to have an open proceeding in which you can actually go through the evidence that the district attorney had, but failed to prosecute based on.

So the only way that is kind of a public check is if it's an open proceeding. In fact, that's what the Wisconsin Supreme Court has said when exactly this kind of thing has come up before.

[00:43:37] Mariann Sullivan: Cool. And where are you on that?

[00:43:39] Steffen Seitz: So we'll be filing our response by the end of this week.

[00:43:42] Mariann Sullivan: That's the response in the appellate court, right?

[00:43:44] Steffen Seitz: Right, so we're filing a response to the appellate court, and the Attorney General of Wisconsin is also filing a response on behalf of the judge, because technically, Ridglan was suing the judge for violating a plain duty, so, those will be responses going to the appellate court, and then presumably the appellate court will rule at some point before July 10th, and July 10th is the date of the evidentiary hearing.

[00:44:01] Mariann Sullivan: Oh, okay. Wow. That's coming up fast. I think that I covered all of my questions about what's going on, but let me ask you both, is there anything that I missed that's still happening or that's about to happen?

[00:44:11] Steffen Seitz: I mean, one thing I think would be worth highlighting is that July 10th is the date of this evidentiary hearing, and it'll be the first time that footage and evidence of Ridglan's incessant animal cruelty will actually be made public, and that a court will actually be forced to confront it and to make a ruling.

And we think there's a good chance a special prosecutor is appointed, but the statute of discretion says may appoint a special prosecutor if there's probable cause. And we think even if a special prosecutor isn't appointed, this opportunity to shine a light on what's going on at Ridglan Farms is invaluable, and it's an opportunity to sort of show what's going on behind the scenes that so many government inspectors have shown, that these activists who bravely went in showed, and also that former employees have come forward and talked about.

[00:44:51] Mariann Sullivan: Assuming the prosecution does go forward and you're successful in that, have you gleaned a lot about what their likely defenses are going to be in the cruelty prosecution from their petition?

[00:45:01] Steffen Seitz: I imagine their main defense will be this exception, even though I think it clearly doesn't apply. And we've talked to a number of experts who also, you know, have looked at it and think it doesn't apply. So I imagine that in some ways can be their only defense. And that's because everything else that they're doing is just clearly a policy of the company, right?

It's the way that their cages are designed. It's the way that they have operating procedures for doing surgeries. And frankly, we think that if a special prosecutor is appointed, it's likely the end of Ridglan Farms because their entire operation is predicated on animal cruelty.

[00:45:31] Mariann Sullivan: Wow. So exciting. All right. So, I assume that we're done talking about that, though there's obviously a lot more to learn in the next few weeks, but I'm going to ask you a question. It's kind of out of left field, but when I went to law school, which is a long time ago, I remember vaguely learning about torts that apply to possibly these types of situation, or maybe they don't, like malicious prosecution and abusive process. Maybe there are others as well, or maybe they're called different things in different places. Like, have the defendants in the original case thought of, like, making some money out of this?

Suing? Because it does seem like, when you drop the prosecution right before trial that prosecution has been used in a wrong way. Are there any civil lawyers like looking at bringing a lawsuit here?

[00:46:16] Chirs Carraway: You know, I think for the three clients, it's not about money.

[00:46:21] Mariann Sullivan: Well, but money is always useful Chris!

[00:46:23] Chirs Carraway: Sure, but I think they wanted to be prosecuted and, you know, oftentimes, a finding of probable cause, which there was in this case, at a preliminary hearing would preclude.

[00:46:35] Mariann Sullivan: There is clearly probable cause. Yeah.

[00:46:37] Chirs Carraway: Yeah, a malprost claim, and, you know, those are generally pretty difficult.

[00:46:41] Mariann Sullivan: Oh, I know. even I remember that from law school, that's why I've never heard of one since. I know they're really hard.

[00:46:46] Chirs Carraway: And it takes away the focus from the animals, and I think that's such a huge priority for the defendants in these cases as well as other cases is using these trials to sort of flip the script and, highlight the crimes of the animal abuse industry, you know, I can say Steffen co authored a paper with Professor Justin Marceau, who's with our project and Wayne Hsiung, about just the utility of these cases, these political cases going to trial and how they provide an opportunity.

[00:47:17] Mariann Sullivan: Was that the one in the Harvard Law Review? That's a great article. I'm sorry, I didn't remember your name from that, Steffen, which is terrible.

[00:47:24] Steffen Seitz: Voluntary Prosecution and the Case of Animal R escue.

[00:47:27] Chirs Carraway: Yeah. And, you know, I think, there's so much work to be done that they want to keep it focused on the animals, which is why these motions to compel prosecution, are so critical, because it provides an opportunity, on one hand, to have the public display of what Ridglan does to these dogs, but two, you know, oftentimes it'll just show the contradiction between the prosecution's supposed ethical mandate to seek justice and their willingness to turn a blind eye to clear injustice when it is presented to them over and over again.

[00:48:06] Mariann Sullivan: Well, I, I could not agree more. I mean, I certainly wouldn't take any civil proceeding in place of this brilliant proceeding. And I'm so impressed with Wisconsin, though their necessity defense is a little weird. This ability to like, go to court and get a prosecutor is really powerful.

And it sounds like you're using it to good effect. So, unless you have anything else to add about these cases, we will just wait with bated breath to see how it all comes out. Thanks so much for telling us all about it. I feel like I know a million times more about what happened in Wisconsin than I did before.

[00:48:37] Chirs Carraway: You know, I could add, this is discussed in the Isthmus article, first, statutes for compelling prosecution are not unique to Wisconsin. Colorado has a similar statute, but this also isn't the first proceeding in Wisconsin, in which someone has sued over animal cruelty.

I've mentioned two separate lawsuits. by PETA against the University of Wisconsin.

[00:48:58] Mariann Sullivan: Oh, that was under that statute?

[00:49:00] Chirs Carraway: That's correct. And, you know, I think it often could be a useful tool for animal advocates, because I think it is clear that the institutions that are supposed to enforce these bare minimum requirements on taking care of animals have abdicated their duty.

So, these types of proceedings really restore some semblance of balance to accountability for these animals,

[00:49:26] Mariann Sullivan: I think these statutes, I mean, these statutes are very exciting. And even though I could not admire what these investigators did more, you don't actually have to take those kinds of risks. You don't even have to get criminally prosecuted in order to bring a case to a special prosecutor. So there's a much wider array of people who, would be able to or willing to, to bring these kinds of cases.

[00:49:51] Chirs Carraway: If they do, they can always reach out to us at the Animal Activist Legal Defense Project.

[00:49:56] Mariann Sullivan: Let's all get on the same page about our arguments and don't bring bad ones. It's the dread of every activist lawyer. Somebody out there will bring a terrible case and set bad precedent, but that's not going to happen here. Very exciting, very exciting work that you're doing there.

Finally, somebody's in charge and I expect we'll be seeing a lot more, but first we want to see what happens in Wisconsin. Really. Really eager to hear about it all. Thanks so much.

[00:50:20] Chirs Carraway: Thank you for having us.

[00:50:21] Steffen Seitz: Thank you.