Animal Law Podcast 113: The Case of the Cows Who Sought Sanctuary

Mariann Sullivan: We've got a lot to talk about, but we're going to focus specifically on a case that, you know, like so many cases that you guys are involved in, particularly you, Wayne, like went away before anything big happened. And we were talking about this before we started recording. And, I just feel very strongly when this happens, and you know, it's happened a few times, we cannot let these cases die and disappear, which is what they want, you know, they want it to just go away.

Since the record is not going to be in the law, we have to make the record of what happened in these cases. And this is the case, people have probably heard about it. It did not involve either of you specifically in what happened, it involved a woman in upstate New York, western New York.

I've learned since I moved to upstate New York that you call it western New York. They get annoyed at you.

Lots of Western New York is lovely, but you have some pretty harsh things to say about the area in which this case took place. It's a woman who runs a sanctuary, the Asha Sanctuary, not too far from Buffalo, so not too far from a big city.

It was a crazy, crazy story, and at some point, we'll find out when, you got involved. But let's start at the beginning and kind of set the scene. Who is Tracy Murphy? What is Asha's Sanctuary? And give us a bit of the backstory about where it is and what was going on there.

Wayne Hsiung: So Tracy Murphy is a former executive at HSBC. She's lived a pretty conventional, mainstream life, conservative life even. And she lives in a very conservative region of the country. But she also happens to love animals. And she gave up her career roughly 10 years ago, after going to a sanctuary conference in Watkins Glen, also in the upstate, or I should say Western, now I've been corrected as well, Western New York.

Mariann Sullivan: There is a place where it switches off from one to the other, but I'm not sure what that is.

Wayne Hsiung: I don't know where Watkins Glen is, so I'm not the one

Mariann Sullivan: It's probably Western. Yeah.

Wayne Hsiung: Okay, so Western New York, and you know, met Gene Bauer and Susie Coston and all the folks at Farm Sanctuary doing amazing work and said, I want to do this. This is incredible. And I've built up a nest egg. I live in a region of the country where there really are no farm animal sanctuaries.

So I'm going to do this. So she started a sanctuary and I think roughly 2012, 2013. And did an extraordinary job. She had Girl Scouts coming, she had local community members very supportive of her work, but the farming industry did not like the fact that there was a sanctuary near where there's a lot of cattle ranching.

And so, you know, I'd say roughly five, six years ago, once she started getting some media attention and actually some of the media attention she got five, six years ago, related to animal cruelty cases at farms. Cause she was actually taking in animals that were seized in animal cruelty cases. The local humane society and pound didn't have the ability to handle these animals who were seized, so they reached out to her.

So she was actually supporting local government authorities, and a lot of these ranchers started finding out about this sanctuary because of the media attention, and they started harassing her. So initially it started with just harassing her about her sign. So she has a sign outside of her property.

It's her own property, her own land, it's a non profit organization. The sign doesn't even say anything very bad, it just says Asha's Farm Sanctuary. Literally that's it, I've seen it.

Mariann Sullivan: That's definitely not very bad.

Wayne Hsiung: It's not very bad right?

Justin Marceau: She was waiting for the F you, but it's just Asha's sanctuary.

Wayne Hsiung: It's literally the name of the sanctuary. And she ended up getting harassed by a bunch of her neighbors, they started this huge kind of petition regulatory process to try and get her to take it down, totally in violation of the First Amendment, it's her own property, she's allowed to say whatever she wants, but they tried to get her to take it down, they failed, but she had to fight a lot, she got all these lawyers involved, and there were other similar disputes, you know, she would host an event for Girl Scouts, Girl Scouts would come, and she'd see people on social media comment in negative ways. But she didn't think much of it, the internet's a wild place a lot of people say crazy things, until these two cows arrive at her sanctuary in July of 2022.

Mariann Sullivan: And can we take a step back? Because I really didn't know this. I didn't know that there were a lot of beef cattle being raised in that area because it's a big dairy country. Upstate New York is a big dairy country. But both of the animals who arrived, and I'll get into In a moment, why I call them animals because I get confused about what cow means, they were beef cattle and they were presumably, I hate to call them that, but you know what I mean.

Wayne Hsiung: There's an Angus steer and an Angus heifer who are typically used for meat.

Mariann Sullivan: Clearly not being raised for dairy. And the reason I hesitate about cows, because I know the industry sometimes makes fun of us for calling these animals cows. And they don't have a word, like a generic word for a male animal of the bovine species.

You can call them steers, which defines like, what operation has been performed on their genitalia, or bulls, which obviously defines the same thing. The name has to define what's been done to them or not done to them. But I've always been astounded to find out that the word cow doesn't apply to boys.

And they don't have a word, just a generic word for a male cow. So, so let's call them cows cause I think that's what most people in the movement would call them. And most people of the industry would think we were doing it because we're stupid. And I just wanted to take a moment to clarify that, that we're not.

All right. So they arrived, two cows.

Wayne Hsiung: Yeah, July 16, 2022.

Mariann Sullivan: They just walk on the property.

Wayne Hsiung: She comes home from a Tim Horton's. She goes out for a coffee run, does some kind of just basic logistical stuff she does every morning, comes home and sees these two cows on her land, like outside of her pasture. She's got like a fence that seals off some part of her property from another part where the cows are kind of to some degree enclosed. And she sees these two juvenile cows, both probably like seven to eight hundred pounds, which is about half the weight at which cows are typically slaughtered in the industry. So she sees these two baby cows who are kind of looking at her adult cows and kind of begging to be let in. They're very interested in the cows on our property. They're mooing.

And there's a busy road right outside of her, her sanctuary. I mean, I've been on this road, there's cars driving like 50 miles an hour. So it's kind of road hazard, for cowsust being wandering around on the roads.

And, and so she does what she typically does when she sees an abandoned, stray, injured animal. She gives them food, water, it's a hot summer day in upstate, western New York. Western New York, I'm sure you know this, it can get quite hot in the summers..

And dehydration is a serious issue for human beings and for non human animals. So she just opens up her pasture, sets out some, some hay for the cows, including these two baby cows who've wandered to her sanctuary and gives them some water as well.

And, and the cows just start hanging out. So she says, okay, I'm going to hold on to them. And importantly immediately after this happens, I think it's within hours, I think 9am is the first text message she sends. She reaches out to the authorities to notify them she's found two cows. So this is not some animal rights radical.

Whatever you think of the work that I do, who's kind of barging into someone else's property, trying to take their property. This is someone who took in some stray animals, contacted the authorities immediately thereafter, and tried to do the right thing. She tried to do the legal thing throughout this.

Mariann Sullivan: Can I just interrupt you for a second? Cause I just want to take a moment to recognize I just think the story, she runs what is literally called a sanctuary. And these two animals sought sanctuary on this land. There's something so beautiful about it.

Justin Marceau: There

Wayne Hsiung: There's something poignant about that.

Justin Marceau: When you're out there, you see it. I mean, she really is. Wayne is describing it accurately. The sanctuary is surrounded on all sides, it seems, by people who are either sympathetic to beef cattle raising or are doing so specifically. And so you kind of imagine this, this picture of two cows just finding their way onto a sanctuary.

And it's really, yeah, it's the true definition of sanctuary.

Mariann Sullivan: Truly. Yeah. Maybe that's why they hate the sign so much.

Wayne Hsiung: So about a week later, the authorities, which in Niagara County, the authorities are actually the local SPCA because there is no public animal control. The county contracts out with the SPCA.

Mariann Sullivan: Yeah, that's common in New York State. Yeah,

Wayne Hsiung: It’s common in New York and other states too. There's some counties in California that have the same process, but the SPCA reaches out to her and says, Hey, we think we may have found someone who has the cows.

And she says, Great, I'd love to talk to them because I'd love to be able to just buy these cows at whatever market price and, you know, if they give me proof of ownership I'm happy to do that because I've become quite attached to them and from, you know, like a livestock rancher who cares who gets your cows and she's going to pay a premium. But the problem is for the industry, she's going to care for these cows instead of slaughtering them, right? And that's, that is culturally and narratively a threat to the entire industry. So when the livestock rancher gives her a call, she realizes pretty quickly thereafter that he is, in addition to being a livestock rancher, a New York state trooper. And so they have this initial call and she says, okay, you're a New York state trooper. that's fine. No problem with that. But If you come, I'm happy to discuss the cows, what I've done with the cows over the last week, week and a half, because I think it was about a week and a half when Scott Gregson, the New York State Trooper, finally showed up.

Mariann Sullivan: She called the SPCA. They contacted this guy and he contacted her?

Wayne Hsiung: Yeah, she basically went around the neighborhood asked them, you know, do you know anyone who's missing some cows one of the neighbors told her, “Yeah, I think our neighbor in Scott Gregson.” And Scott Gregson's house is not immediately adjacent, but it's pretty close to Tracy's place, but every one of these properties is large.

They're huge properties. So didn't even know this particular neighbor had cows. But the SPCA agent contacted Scott Gregson. Scott Gregson gave her a call. and then she called him back and they had a quick conversation where she basically says two things. One is, you know, I'm happy to discuss the cows, just provide some proof of ownership and, and then, you know, we can work out something I'm sure that will suit everyone's needs. And then second, she also said, because this is true in a New York law, that she also has a claim under a New York lien law and it's called Town Law 310. And it's, it's one of these weird laws that was in existence, I think starting in the 1800s about kind of the partitioning of property. What happens when a stray animal comes onto your property?

And it basically says if a cow comes onto your property, and you incur some cost, or does some damage to your property, or otherwise, just incurs any sort of expense, then you actually have a lien on the animals. This is in a time where, you know, I think when this law was passed, a majority of Americans were farmers, these sorts of things were happening all the time, and you just wanted to make sure that if someone's caring for an animal who's stray, they were compensated in some way.

Mariann Sullivan: right, and there probably weren't great fences. Animals were probably all over the place.

Wayne Hsiung: All over the place. Yeah, and believe at this point she had not consulted with a lawyer yet but she had read the law and her intuitive common sense interpretation of the law is actually the legally correct interpretation which is that if an animal comes on your property, you incur some expenses, you actually have a possessory lien, which means you actually have a, not just a claim to compensation, but a claim to possession of the animal unless the lien is defeated.

Mariann Sullivan: if they don't pay you.

Wayne Hsiung: they don't pay you, in the same way that if you bring your car to a mechanic, and the mechanic incurs some costs, and you come up to him and say, like, I'd like my car back, and he says, okay, can you pay off the cost of the transmission I just replaced? And you say, nah, I'm not going to do that. The mechanic actually has a claim, possessor claim, on the car until you've basically paid off that lien. she says, you know, I also incurred some expenses, and I think there's this lien law, Gregson says, yeah, that's totally fine. Can you hold on to these animals over the weekend? Which actually creates an independent lien on the animals as well, because there's a lien law based on contractual agreement relating to animals as well, saying if someone has taken in animals on your behalf, you know, basically someone who's a custodian for animals for some period of time, they actually have a claim on the animal until you pay off the cost that are incurred as part of the agreement as well. And that's lien law 183. So there's town law 310, which is the possessory lien relating to kind of a stray animal and 183 lien law, which is relating to some agreement. so the weekend she talks to an attorney who actually does animal law and custodial disputes of this sort. His name's Matt Albert, great guy, who advised her, yeah, this is correct, you know, you have to get proof of ownership, please don't give him the cows without proof of ownership, because importantly, if you give over the cows, especially without proof of ownership, you actually exhaust any claim you have on the lien. But on Monday morning, without contacting Tracy ahead of time, Scott Gregson and they had actually agreed that if he's going to come by, just let me know you're coming, especially given that he's a cop. She was like, okay, this is kind of weird and intense.

So do you mind just letting me know when you, before you show up? He shows up unannounced with an officer in tow, another officer, state trooper, you know, and again, he had not said that he's coming with officers. He just said, I'm going to drop by. We're going to discuss the cows. And a representative of the SPCA, who we didn't find out until much later, was not authorized to be there.

The executive director of the SPCA had determined this is a civil dispute, we've determined who might be the owner, and our role is just to ensure a stray animal is not being hurt. Our role should actually be, kind of, to step out of this case now, because it's just a civil ownership

Mariann Sullivan: SPCAs do not like to get involved in that sort of thing. You know, the neighbors, they say, this is my dog, that is the kind of thing that they say, go to the cops, go to the police, go to the, go to whatever. It's not our, that's not our business.

Wayne Hsiung: Yeah, but, you know, the state trooper was in cahoots with one of the SPCA officers, who was ultimately actually fired, I think partly for this reason, and was able to bring an SPCA agent along who basically worked with the cops and the cattle rancher to essentially bully this woman who was shocked and surprised that these officers are showing up, demanding to return the cows.

And, know, like a roughly 20 minute interaction without a search warrant or an arrest warrant. And with my client, Tracy, repeatedly saying, look, can you talk to my attorney? I don't want you here. You're trespassing. Can you please leave? You know, basically the same thing we do in protests and we get arrested for it. The cops are actually doing this in this way. Demanding she return the cows immediately, not providing any proof of ownership.

Mariann Sullivan: So do they, they come with a truck to take the cows away or?

Wayne Hsiung: They say they're gonna take the cows. They provide no proof of ownership. Mr. Gregson repeatedly says, yeah, yeah, no problem. I'll provide you proof of ownership, and he doesn't provide anything.

He doesn't say anything. He doesn't even describe the cows. You know, he just says these are my cows without even looking at them.

Mariann Sullivan: Is this like a hobby for him? or is he like, this a big business?

Wayne Hsiung: So he has a social media page that is all about defending farming, and this is, I think,

Mariann Sullivan: But does he have a lot of cattle or, or, or just? Yeah.

Wayne Hsiung: probably got I think it's anywhere between three to five at any particular point in time, so it's

But it's something he believes in a lot,

Mariann Sullivan: Yeah, it believes in and does, but, uh, yeah, but he also has a real job.

Wayne Hsiung: yeah. so Tracy, kind of on advice of counsel, does not turn the cows over and says like, please talk to my attorney. Her attorney, Matt Albert, then reaches out to the state troopers and says, hey, let's work this out. I heard you showed up with an officer, you know, it's pretty intimidating to my client, first of all, because you never said you were coming with cops.

I thought this was going to be kind of a reasonable conversation about the status of the cows.

Mariann Sullivan: Doesn't that sound like a, like a kind of overdone movie?

Justin Marceau: It's over, it's overwrought. Yeah, exactly. Yeah,

Mariann Sullivan: Yeah, like people will be watching and say, oh, come on,

what, this is not the South in the 1950s. Like, uh, come on.

Wayne Hsiung: it totally is. It totally is.

Justin Marceau: really is also, I mean, I just wanted to say, Wayne, the point you made is exactly what I've said to my students, is like, Wayne goes to jail when somebody says, hey, you're on my farm, get off. And this group of people and this nice woman saying, hey, you're on my farm, get off. The only difference is that this is a farm where they don't kill animals, right?

I mean, an important point. I mean, she's, they're way off the road, right? I mean, it's not close. Like, if you get

Wayne Hsiung: Yeah, they drive all the way up. They're trying to like barge into a ranch and take her cows, you know, they're trying to basic. And again, at this point, they have provided no proof of ownership at all. And they haven't even seen the cows. They just say they're mine based on nothing. You know, that...I don't think Gregson's even seen the cows at this point.

He just wants her cows, basically, and doesn't like the fact that there's a sanctuary next door. and interestingly, I think the, the amount of time, I actually looked at the body cam footage and just looked at the amount of time, the amount of time there on Tracy's property was about the same amount of time I was on a factory farm in Sonoma County, and I ended up in jail and the officers ended up putting her in jail doing exactly the same thing to her that I had done to a huge egg factory farm in Sonoma County.

Justin Marceau: And Tracy was objecting just as strenuously, right, Wayne? I mean, I mean, when you watch the footage, I mean, it's not like Tracy was kind of like, Hey, it would be better if... it wasn't like she was equivocal. I mean, she's quite strong. I mean, she's a,

Mariann Sullivan: She sounds like, I mean, I, I haven't seen film or anything. She sounds like a real cookie.

Justin Marceau: She was very brave and she really was trying to assert her rights. She said, you know, you're going to want to talk to my lawyer. Please get off. I mean, it's very, it's really, it's really compelling.

Wayne Hsiung: And even if she could stand up to the state police, the livestock industry, Forrest Lucas, a tycoon who runs an oil company and also has a lot of livestock ranching interest. He was involved in this case too. I can talk about that a little bit and then the influence of, big money in this case. But anyone who can stand up to that for two years.

Mariann Sullivan: Yeah, I do want to get into that. I mean, let's finish a story, but I do want to get into that because that is interesting and not something I know about.

Wayne Hsiung: Yeah. So they, leave eventually after she tells them repeatedly and quite clearly, in fact, I would say she was more strenuous and more clear than the factory farmers in Sonoma County. Cause in Sonoma County, they actually invited me on. They actually said, fine, you can come and we're going to take you into CDA.

If you're worried about the chickens, we'll show you what's in. You can stay. Everyone else has to leave. You can stay. But Tracy's very clear. She says, look, you're trespassing. Please talk to my lawyer. She's trying to call her a lawyer on the spot because she's got this cop here. She's scared and intimidated by the fact that. You know, again, a guy with a gun that showed up at a property in a uniform, and she thought it was going to be just a conversation with Scott Gregson. After 20 30 minutes they leave, her lawyers corresponding with the cops, they're having like a pretty intense argument behind the scenes, and honestly, the state troopers, State Trooper Stephen Herod is having this conversation with Matt Albert, and he's just stating the law incorrectly, left and right.

He doesn't understand anything about the town law. He's getting like the fence provisions of law wrong. Everything's incorrect about what he says. But, in the meantime, this becomes a cause solidaire within the livestock ranching community. Protect the Harvest, a huge, and powerful nonprofit organization

Mariann Sullivan: That it's going out of business

Wayne Hsiung: Going out of business now, but funded well.

Mariann Sullivan: This month.

Wayne Hsiung: Yeah, I did hear about that, but basically owned and promoted by Forrest Lucas, who's one of the richest men in America. name is on the Indianapolis Colts NFL stadium. He runs a business called Lucas Oil. Some people may have bought products from Lucas Oil at some point, but if you, if you watch, I, I'm not a NASCAR or a Formula One person.

Apparently, they're really involved in NASCAR and Formula One. And he's got a huge amount of money. His non profit starts posting about this. Scott Gregon, his own social media called McKee Farm. They start posting about this. And you know, Tracy makes some posts too, but her posts are kind of desperate and just saying like, Oh my God, I'm being like harassed by people.

What do I do? Can people help me? I mean, she's not an aggressive or, you know, hostile person at all. She's just trying to figure out what's on, she's feeling scared. So she makes some posts, but people start showing up outside of her sanctuary that week after Gregson shows up, because of all the social media, much every day that week, there are people standing outside of her property,

Mariann Sullivan: Like just on the road

Wayne Hsiung: just on, on the

Mariann Sullivan: in the middle of nowhere?

Yeah. Wow.

Wayne Hsiung: And, two of her employees then turn on her, partly because of the pressure, and partly because one of them, I think, was already just on the rocks and was, frankly, just not a good employee and wasn't doing a great job. And both of these employees had been brand new employees, and they weren't animal rights people, they were just kind of locals.

Mariann Sullivan: It's frequently very difficult for sanctuaries to get animal rights people. It's hard enough to find people who can take care of animals. Like you're not in a big, you know, in an area where there's a huge population. So I, I understand that you don't necessarily have, you know, your animal care people totally on board with your mission.

Wayne Hsiung: yeah, but these, these two non animal rights people, I think, get kind of swept up by the social media mob, decide, you know, we're not against Tracy, and we're going to turn her. And, and claim, Contrary to fact that this is some huge conspiracy and secret and do an interview with the police claiming Oh, yeah, Tracy was trying to hide the cows, and she told everyone to keep it a secret I think one of them states in a sworn deposition.

I was sworn to secrecy, which is not true at all like she

Mariann Sullivan: them.

Wayne Hsiung: she reported them and It is a standard policy at the sanctuary when an employee comes or volunteer comes they sign an agreement that basically says look sometimes You There's confidential issues. We don't want everyone speaking on behalf of the sanctuary.

We don't want everyone sharing all the details of the sanctuary, especially when stuff is in the media, partly because you just want the right person speaking on behalf of the sanctuary. If there's some sort of dispute, a lawyer, for example, right? Even Tracy wasn't speaking to the media. She was asking her lawyer about these things, but probably because a lot of these rescues are very sensitive.

You know, like if you start talking openly about them, if you're taking an animal from a livestock rancher who doesn't necessarily want people to know that he's giving animals to a livestock sanctuary, if you start taking animals in animal cruelty cases where it could compromise some sort of prosecution. So she has some standard forms and agreements where people have to sign, uh, like a volunteer agreement that has a confidentiality clause. And these employees blow it up into this huge conspiracy and say like, Oh my God, they're trying to keep everything secret, which is not true. And she reported the cows to the SPCA and she was open about them. And she invited. the alleged owner of the animals, to the sanctuary. but they start telling the police that there's this big conspiracy, and the Sunday before she's arrested, there are, I kid you not, I've seen the video footage, hundred people outside of her sanctuary.

Mariann Sullivan: My God.

Wayne Hsiung: banners, and I think it's at least a hundred. I mean, it's

Mariann Sullivan: Yeah, no, you have to, people have to understand because, you know, people hear the term New York and they think it's a crowded area. This is not, this is really, really not a crowded area. It's not even a crowded rural area. It's, it's, it's. Big piece, like you were saying, big pieces of property, and just not a lot of people.

Wow, to gather that many people in that area must have taken a lot of work.

Wayne Hsiung: every time she comes even close to the property line near the sanctuary, there's people on megaphone screaming, lock her up.

Mariann Sullivan: Wow.

Wayne Hsiung: you know, you remember that same slogan with Trump and Clinton and someone drives onto our property on a dirt bike and skids across her front lawn and yells obscenities at her.

so trespasses on her property with cops present. Incidentally, they called the same cop to protect her when she said like, Hey, there are people screaming, lock her up. There are people who have posted all over the internet. At least dozens and probably hundreds of death threats at this point, including very specific threats.

Like, for example, I have your address. I've got a shotgun with bullets with your name on them. People saying, see that tree behind your house? We're gonna string you up on that tree. And there is a tree behind her house, and they like, so clearly people who know very specific things. And then a hundred people show up at her property, yelling, lock her up. She calls the state police and says like, hey, I'm concerned about my safety. There's people driving on my lawn. There's people screaming, lock me up. There are people who block her from leaving her sanctuary. She had a cow who needed emergency care that day, and she tried to take that cow to an emergency vet. The huge crowd blocked her from leaving the sanctuary, right? And so she calls the cops, who do they send out there? The same cop who interrogated her with Scott Gregson a week before. Like the same one who was instructed to leave her property himself. He was told, hey, you're on my property, you can leave, and he refused to leave.

Mariann Sullivan: Yeah, this movie gets more and more ridiculous

Wayne Hsiung: When he

Mariann Sullivan: and over the top.

Wayne Hsiung: it's the same dude, I remember you were actually one of the people who was on my property, I was trying to get you off, and I'm calling the police and saying, can you get these people off my property? They're telling me they're gonna lock me up and, you know, they're people trying to kill me, and they send the same cop out. he, when she says, like, hey, People have come on my property, they're threatening me, they're saying lock me up. He forces her to the front of the property just to point out where the car was, that drove on, or the bike was, and it's like a bizarre interaction where really does feel like he's trying to put her through some sort of weird ritual punishment where he just wants her to go out to the front where all the people outside, like he's, it's some sort of weird spectacle.

Justin Marceau: Well, Wayne, isn't that the same officer, that on the video earlier when he showed up, with Gregson, he had said something like, I wish you could have handled this like adults or something, like he kind of gives her a reprimand.

Wayne Hsiung: Yeah, yeah, he's already kind of, he's already really upset at her and it's, they have the same cop come out which, I mean, it's got to be intentional.

I believe this s July 31st, the Sunday before she's arrested and she still has no idea she's going to get arrested because her attorney's talking to the cops. She's just, at this point, scared she's going to be murdered. Like, like, literally,

Mariann Sullivan: yeah. Yeah, no, this is frightening. This is literally frightening. Yeah, anybody would be frightened.

Wayne Hsiung: was going to be murdered. And she has volunteers. She asked the police, hey, can you protect me? They refused to do so, other than basically having the same cop who trespassed on her property drag her out to the front yard, where she gets screamed at. I've seen the video footage, you have hundreds of people, or a hundred people plus, screaming at her. So she has volunteers sitting outside of her sanctuary at this point, just providing security, because she's scared someone's gonna come kill her. And volunteers step up, there are people in the vegan community. But,

and

Mariann Sullivan: Yeah, she has a, I mean, she has a following. She's, like, at least on social media, she has a very loyal and passionate following.

Wayne Hsiung: Yeah, including a lot of people who come to her sanctuary and support her whoare not vegan. You know,

Mariann Sullivan: Yeah. That's always true of sanctuaries. Always.

Wayne Hsiung: SPCA, for example, love her because she's supported them over the

Mariann Sullivan: Yeah. Yeah.

Wayne Hsiung: Like, she hasn't asked for any money. She's just said, like, bring me your injured and abused animals, I will take them.

You know, she's a good Samaritan. but the denouement of this all is that on August 2nd, two days after this protest, significant police presence does show up after she's been calling and asking for significant police presence to protect her, and they show up to jail her. They have an arrest warrant that her lawyers weren't notified about.

They have a search warrant her lawyer wasn't notified about. They shackle her by her legs and her feet, which doesn't, we've talked a lot of criminal defense attorneys in upstate New York, they say, this doesn't happen, even

Mariann Sullivan: Oh, it's insane.

Wayne Hsiung: This They're shackling her legs. What do you think this woman's going to do?

She's going to make a run for it? You think she's going to attack you? I mean, Tracy Murphy is like five feet tall, 60 plus years old. She's like the least dangerous defendant in the history of New York and have her shackled by her hands and legs. They arrest her and charge her of grand larceny, and the thing, the

Mariann Sullivan: And they seize the cows too, right?

Wayne Hsiung: the cows, and the revelation that came out in the last week that was, I think Justin would probably agree with this, probably decisive in dismissal of the charges, even though we had a long list of issues, constitutional issues

Mariann Sullivan: Which we're going to get to.

Wayne Hsiung: dismissal. turns out, we find out one week before trial, the prosecution discloses, the supervisor who was running that raid, the arrest warrant, the search warrant is Scott Gregson, the cattle rancher's brother in law, which is a violation of New York

Mariann Sullivan: So Scott Gregson is a state trooper

and his brother in law is a local officer or local.

Wayne Hsiung: well.

He's in the same department,

Mariann Sullivan: Okay. So they're both state troopers.

Wayne Hsiung: is not, there's no city or town police force. and

Mariann Sullivan: Right.

Right.

Wayne Hsiung: the county police force, apparently there's some sections in Niagara County the county police force deals with and some sections the state troopers deal

Mariann Sullivan: Yeah. Oh yeah. Yeah. That sounds right.

Wayne Hsiung: generally deal with.

Mariann Sullivan: Okay, so they're all state troopers. One of them

Wayne Hsiung: run by

Mariann Sullivan: is the complainant, and the brother in law is basically coordinating the arrest.

Wayne Hsiung: And so they arrest her, and then, you know, she goes through two years of hell of the state gagging her. There's a gag order placed on her immediately, which was unconstitutional, saying she cannot post on social media

Mariann Sullivan: Yeah, can you tell me a little bit more about the gag order? Like, it was imposed immediately upon arrest. How long did it last, and how was it vacated?

Wayne Hsiung: Yeah, so it was imposed immediately on release, it was requested, see the profound irony is this snowflake police officer, after rallying a mob outside of her home to scream, lock her up, after having people drive on her property, after people very specifically saying, we're gonna hang you up on that tree behind your house, I've got a shotgun, I know your address, bullets with your name on it, this state trooper claims that he is in danger. know, because he claims, with no evidence we've obtained, that he's received a death threat. Still to this day, we've been asking for some evidence that he received a death threat, which he may have or may not, I mean, people on the internet say a lot of ridiculous, stupid things but still there's no evidence of it.

And while on, in contrast, we have evidence of at least dozens, and frankly, if we wanted to keep looking, I'm sure we could probably find hundreds of death threats, and very specific death threats, too. Emails, social media posts, people driving on a lawn, people screaming outside of our home, and,

Mariann Sullivan: So was that his claim that he had a death threat the reason for the gag order? Or the purported reason for the gag order?

Wayne Hsiung: he an order of protection.

Mariann Sullivan: Okay.

Wayne Hsiung: you know, you have to prevent her from saying anything about me, or the farm, or anything else. And the prosecution requests it, the judge grants it unconstitutionally. Because, there's a lot of rules as to what sort of protective orders are possible, and also what sort of conditions of release are allowed.

And this is just far beyond what's constitutional and permissible. But they ban her from making any social media posts at all. They just say you're not allowed, and this is a sanctuary that depends on social media posts for its entire operation. They're telling stories about animals, they're seeking funding, they're promoting

Mariann Sullivan: Yeah, Of course.

Wayne Hsiung: can't post about social media at all. And it takes, I think it was about 8 months to a year before the gag order was ultimately vacated.

Mariann Sullivan: Okay. So.

Wayne Hsiung: Multiple motions at multiple levels to get to the point where the gag order was finally.

Mariann Sullivan: Justin, when did the clinic get involved? I mean, actually, tell people, just in case there's some people who don't know what the clinic is, describe what the clinic is and then tell us when it got involved.

Justin Marceau: Sure. I mean, you know it better than almost anyone, Mariann, because we were talking to you at the earliest stages, but we founded at the University of Denver, an Animal Activist Legal Defense Project, it was kind of the brainchild of a few of us, Carter Dillard, yourself, Amy Chukinsky. And the goal here was threefold, which was first to kind of embolden people to understand animal law is more than just the general practice areas that exist. And so the people who were interested in criminal defense work could say like look This is really something you could do that's part of animal law. And of course people had done that in the past but to really normalize that across law school curriculum and sort of build it in and then the second piece was to try and create new precedents through animal law cases.

Wayne's Appeal is a great example of that in Sonoma. So we're trying to create the field, make new precedent. And then third, and some would say least important, but this is exactly what we want to do is keeping activists out of jail, right? So we just want to be there front lines, raising the costs of prosecution, making these cases harder for prosecutors to win, and hopefully winning most of the time and keeping them out of jail.

And so we have that project and the clinic itself got involved. The very, very beginning, because when we were still signing paperwork with the university and trying to roll it out, Wayne and others were in contact with Tracy and said, Hey, this might be a, be a good case. and so we hadn't even hired an attorney, but when I was interviewing attorneys, and of course you've had Chris Carraway on the podcast, but when Chris Carraway was interviewing, I asked him if he'd heard about this case and we talked about it. And I'd say within days of him starting on the job, he was on it and then argued against the gag order. So yeah, we were, we were on early and I think, you know, Wayne, as he often is, was on the ground probably with Tracy, you know, shortly after she was arrested. So, so very, very early.

Mariann Sullivan: So the next thing I know that happened, Well, you got a story in the New York Times, which, you know, that's probably an achievement in and of itself. But aside from, back on the legal front, the next thing that I know of happened is the motion to dismiss. I mean, at this point, she was out, I assume on bail, was she bailed on her own recognizance?

So, she was actually in jail for a few days, right? then she got out,

Wayne Hsiung: than one day, but she was basically held there for,

it was somewhere like 12 hours. It was a

Mariann Sullivan: And then she was bailed out, or she was released on her own recognizance? Let's start.

Wayne Hsiung: on her own recognizance.

Mariann Sullivan: Okay. So, and then she was out pending trial, which, you know, is not like a relaxing situation, but it's better than being imprisoned. And, between then and the setting of a trial date and the motion to dismiss, I think there was a period, and I don't know anything about this, but the charges were actually modified.

Is that right? were the charges reduced, so that to make it a little less, uh, insane.

Justin Marceau: That's right. I mean, so she was released. And as you said, I think for people who haven't ever been involved in the criminal system, I mean, Wayne has more experience with this than, than most, but, uh,

Mariann Sullivan: Well, not the normal lawyer experience, but yeah,

Justin Marceau: both the normal lawyer and the other side of the table too.

But, it is really stressful to have charges hanging over your head.

So on recognizance. But, you know, Wayne described Tracy as a really kind woman. I mean, you can't even really imagine it, Mariann, because even this part would seem like it's over the top in the movie, or like this, this doesn't all seem real. you know, when you get involved in a case as a lawyer, you start to feel some intensity and you're, eager for the other side to sort of apologize, which is never going to happen. And Tracy, you know, within minutes of us prevailing was the kind of person who's like, Oh my gosh, I just want to hug everyone.

You know, I mean, it really was, you wouldn't even have a script that was that silly. But yeah, so she was, she was really terrified. I have to say, I mean, it was remarkable. and it was genuine fear that she had.

Mariann Sullivan: And she was facing, I mean, these were charges that you could go to prison for.

Justin Marceau: She was charged with a felony, which was just the, you know, the height of absurdity. And then they reduced it to misdemeanor violation in part to have it stay in town court, where I think they maybe thought they had a better chance. It seemed like a small deal. You know, you'd get less attention, that kind of thing. And we were getting lots of grief throughout for the idea that this was getting media attention, national and international and local

Mariann Sullivan: Yeah. you got to, as I mentioned, you got a story in the New York Times, or it got a story in the New York Times.

Justin Marceau: They were not happy about that. That was viewed as like, you know, you're kind of playing the system here using the system. This wasn't the case we brought, right? I mean, this was a case where the prosecution insisted on going. And so, you know, the judge and others involved in the system, I think, were kind of annoyed that there was media attention. But there was media attention precisely because the prosecutor was bringing a case against Tracy Murphy, right?

It's something, you know, you'd always say, well, it's not a coincidence the media is there. Well the media you know, is interested in the story, right? It's not like we can tell the media be there at 9 a. m. you know, they come when they think there's an interesting story.

Mariann Sullivan: That would be nice.

That would be nice. Yeah. We control the New York Times.

Justin Marceau: There was this perception that, you know, something unsavory was happening because journalists kept showing up at court

Mariann Sullivan: Yeah. Yeah.

Justin Marceau: I mean, the trajectory of this case, we could go through them for hours, but I mean, there were lots of kind of ups and downs. I don't know, Wayne, what else? I mean, when I got, uh, so Chris was leading the case for a long time. ultimately, just as we got close to trial, I think a decision was made, we had just kind of a change in the representation, based on what we thought was going to work well in front of this particular judge, kind of what, what would work and what would make this judge feel like,

Mariann Sullivan: Now, was, was the same judge on it throughout? Was the same judge on it? Like, you said you were in town court, which is a very low level court in New York. There are town court judges, I think, who aren't lawyers. I mean, it's really low level. Did you stay in town court?

And did you stay with the same judge?

Justin Marceau: It’s an endless story. I mean, I'll let Wayne sort of unpack the changes between judges, which include, you know, a dating app and everything else. So no, it did, it did bounce around, but I'll just say, because I want to make this one small point, it's a sort of parenthetical to what you just said. Our judge in this case. Judge Gary Strankowski, was not a lawyer, but I have to say right up until the very final minutes, uh, when he let us out of his courtroom, I thought he did a better job than a lot of, uh, lawyer judges. I was going to write a long form piece about that. Now at the end, he kind of let his emotions get hit the best of him, I think, but, but he really tried hard to understand the law in a way that I think jaded lawyer judges sometimes don't, you know, he, he was, he was

Mariann Sullivan: Yeah, no, I, I can, I mean, I don't think that's a given, but I can certainly see it happening that, that somebody who's really, because, there isn't really complicated law here. It's really just somebody who's actually trying to get to the truth of the matter.

That's nice to hear. But, uh, do you have a story to tell, Wayne, that involves a dating app?

Wayne Hsiung: Yeah, so immediately after I got involved in the case, and Chris was amazing and honestly did most of the work in this case, I almost wish he were here instead of me, because he's awesome. You've had him on the show before.

Mariann Sullivan: Yeah, Chris is terrific.

Wayne Hsiung: a number of motions. The most important motion, which ultimately was very dispositive of the outcome of the case, along with the revelation that G_, the supervisor in the investigation and raid, was Gregson's brother in law, Was a motion to preserve evidence in this case.

And the evidence in this case wsa the two cows. And under New York law, as is the case in every state of the nation, because it is a constitutional requirement that the evidence be preserved, that you're given the right to a complete defense under the sixth amendment. Which includes a preservation of evidence that might be used against you. The authorities were supposed to bring the cows to court and get any instruction from the court about any disposition of the so called property in this case, namely the two cows. and we immediately filed a motion, an emergency motion, saying, look, we have received no notice about the cows. Cows were taken on Gregson's trailer, so we thought correctly that they're returned back to Gregson without any sort of court order and possibly sent to slaughter, and that was our client's main concern.

She didn't want the cows to be hurt. She thought she had a claim on them. She had become pretty emotionally attached to them. She actually had Another Angus Heifer who was dying at the same time that this baby Heifer came and Tracy's a religious person, a spiritual person. She's Christian. And I think it almost felt like the sense of, of faith that as one of my babies is dying, another one's coming.

And so

Mariann Sullivan: Yeah, and, and she named them too. Ishmael and Little Willow. Yeah.

Wayne Hsiung: So the, the golden brown steer was Ishmael. And then the Heifer, the black Angus Heifer who looked a lot like Big Willow who is. is the cow that actually needed to be taken for emergency care and the mob prevented her from leaving the sanctuary. And she ultimately did pass away during the same time period. And, you know, so, so Tracy was very attached to these animals and had developed a relationship over a couple of weeks with them. And that happens very quickly. Anybody who's caring for a stray animal, like, you know,

Mariann Sullivan: Oh, of course. Of course. Yeah. No, I think everybody listening probably

Wayne Hsiung: Yeah.

a stray kitten or. Or even a raccoon. It's kind of amazing

animals do know when, when you were kind to them, they start, especially these domesticated and even wild animals. Like I've, I've rescued raccoons and squirrels who become shockingly attached to their caretakers, but especially an animal that it's a domesticated animal that has not been treated as anything more than a piece of property, they quickly become pretty attached to the new guardians.

And that was what the relationship, Tracy had with Little Willow. So she had us file an emergency motion saying, please preserve the evidence. The authorities, basically, as far as I can tell, lied to us and said, Oh yeah, we're going to do our best. We're going to give you more information soon. When they knew that they had sent the cows back to Gregson, who then sent them to slaughter within a month of their return to his ranch.

Justin Marceau: Maybe. We don't know when they were sent.

Wayne Hsiung: we don't know.

We actually have no idea. Cause the evidence was just lost. It was given to Gregson. I'll

Mariann Sullivan: And to be clear, it's not, I mean, though it's important to talk about her attachment to them, that's not the reason that they were supposed to preserve the evidence. I mean, legally, it's because, there's a case here and, you know, whose cows are we talking about and which cows are we talking about? And, there might be other ways than, keeping them alive.

But whatever it is they did, they, they did it. They didn't apparently do anything, right?

Wayne Hsiung: exactly. And

because you know, Gregson made a number of inconsistent statements. You know, we have a right to impeach him on some of the inconsistent statements he made and we cannot properly do that if we don't even have the cows anymore. We don't have evidence about their weight, their characteristics, their sex.

We don't, we don't know anything about the cows anymore. We can't prove anything to the jury because they're gone and we haven't been given access to them.

Mariann Sullivan: And, also, I just want to make clear, like, do they have to keep the cows alive? I mean, there might have been other ways that they could have done this, right? They just didn't do any, I mean, which isn't for us to figure out. They didn't do anything.

Wayne Hsiung: could have done things through court order. I mean, it's possible. And then the defense would have had an opportunity to object and say, for example,

Mariann Sullivan: Right, right,

Wayne Hsiung: sell the cows to return the owner, like, well no, like fine, but then we get a chance to inspect them and look at them very carefully

Mariann Sullivan: Yeah.

Wayne Hsiung: that Gregson's providing, look at his statements about the description of the cows that he allegedly lost,

to the cows that are actually there.

But we didn't

Mariann Sullivan: And then the court has an opportunity to decide what's fair here and what gives the defendant an opportunity to consider defense.

Wayne Hsiung: not even a legal proceeding about this, despite the fact that for basically two years,

Justin Marceau: requests, never

Wayne Hsiung: we tried over and over again to get some basic attention to this case. And a lot of the town court judges over the last couple years just basically kept, kept kicking it down the road or not even addressing the issue. And part of the reason for that is The other important motion we filed almost immediately after was, well, two motions. One is leaving Tracy the gag order. That was ultimately one after about almost a year of litigation. But the other one that was very important is Tracy, shortly after I talked to her about this case, and I first appeared with her in person, I think she didn't actually share this detail with me until I showed up in person, because it was honestly a little embarrassing to her and she wasn't sure what to do with it. and this is what Justin mentioned, the judge in the case had reached out to her on a dating app, and she had turned him down.

Mariann Sullivan: That's where the dating app comes in.

Wayne Hsiung: this

Mariann Sullivan: What?

Wayne Hsiung: it was, yes, so this same judge, and, and she was, and I was like, really? And he's still on this case? Like, you had rejected him on a dating app? And he's still on this case and he hasn't recused

Mariann Sullivan: Well, when did this happen? Before all of this or like during trial or what?

Wayne Hsiung: but Tracy was not sure what to make of this. She was very confused. I mean, this is someone who is involved in the criminal legal system in her life. She has no criminal history at all. She didn't know what was appropriate. And she was embarrassed to even talk about this.

So she pulls me aside and just kind of whispers in my ear, just like, just so you know, he asked me out on a date and I said, no, do you think that matters? I'm like, yes, it matters. It matters a lot. And I was like, do you think he remembers you? And she's like, absolutely. I know he remembers because he's looking at me funny. And he, did look at her in this like weird and intense way that was strange to me when I I was like, what's going on here? There's something strange happening. And the judge should have recused himself instantly on the spot. But again,

Mariann Sullivan: Well,

Wayne Hsiung: even,

Mariann Sullivan: do we know he remembered?

Wayne Hsiung: he did remember. Yeah, because ultimately I filed a motion.

Mariann Sullivan: is the craziest story.

Wayne Hsiung: I filed a motion basically saying, and we asked for it to be sealed. We weren't trying to embarrass the judge and we weren't 100 percent sure if he remembered, but I think Chris actually ultimately argued the motion successfully and basically said, look, Your Honor. know, we're not trying to argue that you're unethical in any way, but this is a basic potential bias that cannot allow this proceeding to continue under your supervision.

Mariann Sullivan: I mean, it's the kind of thing that could happen in a small town. It's just like, you have to disclose it.

Wayne Hsiung: Yeah, you have to disclose it and you should recuse.

Mariann Sullivan: So this is how it stayed in the same court but ended up with a different judge. I was wondering that.

Because, you know, normally things

Justin Marceau: Well, it got

Mariann Sullivan: stay with the same judge.

Wayne Hsiung: yeah, I

Mariann Sullivan: Oh, I'm too, oh, it probably wasn't, there aren't that many judges available in

Wayne Hsiung: there, so

Mariann Sullivan: these tiny towns.

Wayne Hsiung: court justices in Newfane.

because it's a small town, I mean, I'm actually kind of surprised there are even two, because I think

has, I believe it's, I believe it's like three or four thousand people, and the broader county isn't that much larger, and it's, it's, Niagara County is north of Buffalo, it's, I think it's got maybe like a hundred thousand people cumulatively,

Mariann Sullivan: yeah,

Wayne Hsiung: city or town or village in the entire county is only like twenty thousand, something like that. It's very small. but actually, went to the other town court justice, he said he was involved in the case, he had family members involved in livestock ranching, way too deep into it, So we got bumped to another town adjacent to Newfane, or not, I don't think it's directly adjacent, but it's very close, called Wheatfield. and we also actually tried to kick it up to Superior Court to get an attorney judge in a court that has more resources and an actual courtroom. Because a lot of these town court proceedings, like our, town of Wheatfield trial was going to unfold. in kind of the town council chambers, it wasn't even a courtroom per se, and so, you know, and given the amount of, attention this case was receiving, given honestly the complexity of some legal issues, so some of the lien issues are actually kind of complicated, and given the fact that there was enormous amount of, evidence of constitutional violation in the case we felt needed to be addressed by a lawyer, we actually tried to get it removed to the Superior Court, which is You know, the larger court that normally deals with felony cases. That was rejected, but it was ultimately pushed over to the town of Wheatfield. And so we saw, in total, I think four judges in this case. the other town of Newfane Justice, who I forget his name, but he was only on the case temporarily, a Superior Court judge in Niagara County, and then finally Judge Garrick Strunkoski in Wheatfield.

Mariann Sullivan: So let's get to these constitutional arguments, because in the motion papers that I saw, and I'm not sure exactly when all the different arguments were made, but this argument was made about preservation of the evidence. And you actually made a Brady argument regarding it. Justin, do you want to take this?

Do you want to describe for people who aren't familiar? You know, a lot of people listening are not criminal lawyers. So what a Brady violation is and why this, which is a very serious error,

take Brady violations very seriously,

Justin Marceau: I mean and you were right, Mariann, I mean the there were a number of issues to be clear and so I think two of the constitutional issues rose kind of to the front and one of them was Brady and one of them was this preservation of evidence. The preservation of evidence I think we've already discussed, but I'll just say we mentioned in our motion to dismiss that we had asked for the cows to be preserved or made available for observation and photos and the rest, at least three times is what we said.

And I think it was even more than that, because Wayne had been reaching out to the prosecutor and in some emails that we hadn't necessarily memorialized. So it wasn't one of these things. I mean, it's, it's kind of a feel good moment in the sense that we were diligent in trying to keep track of where the cows were. And that was a big deal because it turns out that the cows weren't being kept track of at all. They were being sent to slaughter. And we only found that out. we, we had guessed that they'd probably been killed at some point, but we had never been given a timeframe until the hearing where we were arguing for dismissal.

And then the prosecutor came forward and said, you know, look, I think these cows were killed pretty soon. And as Wayne said, she said, they might've been killed like a month after they were taken back. The fact that she knew that was something that we had never been told. Right. So we'd been trying and trying, not a great fact for them. Ultimately the order from the judge, it reads as though, you know, like a, like an order that maybe of a suppression where the police unlawfully obtained something, unlawfully obtained a gun or unlawfully at drugs, they're telling the prosecution that they can't use the evidence.

And so the wording in the order dismissing the case essentially was the prosecution is precluded from using any evidence or testimony regarding the two cows in question. So the prosecution is told, like, you can still go to trial, but you can't mention the cows. And the only charges in this case are about the

Mariann Sullivan: that it's just like a motion to suppress the

Justin Marceau: amazing. Right.

Mariann Sullivan: Yeah, like, you, you, you,

Justin Marceau: I don't understand your honor. What, what are you doing? And then, he just said, you can't talk about the cows in case. And she's like, I don't know what I'm supposed to do then, you know, but she still wouldn't dismiss it.

We came back with the jury. So I do think the preservation is very important, but I think there was a lot of things that were important because it was, it was kind of this cumulative situation. I mean, Wayne had filed a general motion to dismiss in the interest of justice. We had been hammering those points and we spent a lot of the morning talking about this Brady violation. So as you said, I mean, Brady is this case, it's a hallmark due process case from 1963. And basically what the court says, and as you said, it's, it's really important. It's something that no prosecutor or even police officer at this point has not heard of in these intervening half century plus. It's that the idea that the prosecution has to turn over all of the evidence that points towards a defendant's innocence. Or that helps make the defendant, do a better job, would enable them to better test the evidence that the prosecution has. Both of those things are Brady violations. You know, it includes lots of different things.

It could include, you know, an eyewitness identifying the wrong person, and you don't tell anybody that's Brady evidence. It can also include, as in later cases, just the failure to disclose things that you would use to go after one of the state's witnesses. So if they were getting a deal or they somehow had some motivation to lie, the defense has to know that and, and the failure to turn that over is said to be a due process violation. And so in this case, everything Wayne said describing it is exactly right. Except for one thing, he said that it was the week before the case that we found out that the it was Gregson's brother in law who is, who is the supervisor in this investigation. It was actually 48 hours before the trial was supposed to start. So that we got a letter from the prosecutor on October 1st and the trial was set to start on October 3rd and October 2nd were last minute pretrial motions. So they sent a letter on letterhead, you know, the day before everyone was convening, like I got the letter in my email while I was making a connection in Chicago to get to Buffalo to start trial. And we opened this thing up and we're like, what the heck? And it's not a letter where the prosecutor says, mea culpa, you know, we've committed a Brady violation because my officers didn't ever tell us that they were related. It's a letter where they say, Hey, you know, Just talking to one of my witnesses yesterday, and he just offhand mentioned that Gregson, the person who's claiming his cows were stolen, his brother in law is the senior investigator in this case.

And then it says almost as though, like, don't worry about it. As you know, I'm not planning to call his name was G_. I'm not planning to call G_ as a witness.

Mariann Sullivan: Well, you seem to be a little surprised that that's how the prosecutor put it, but it's been my experience that prosecutors, that, that is exactly how a Brady violation would be disclosed. They're not going to say, Oh God, we really screwed up.

It's not their style.

Justin Marceau: though, I mean, it's sort of like burying it and this isn't burying it per se, but let me put it this way, like, you know, if you, as, as you probably know, I mean, if, if a prosecutor just sort of says my whole file is open in this case, and then the defense says, gosh, on the eve of trial, we just learned something really bad because we were digging through the prosecutor's file. It would still be a Brady violation. The prosecutors are supposed to sort of like earmark and flag. And increasingly the federal courts in particular have been hostile to anything that doesn't just sort of call it out. Now, do you need to specifically say this was a Brady violation and I'm drawing your attention to it? No, or probably not, but the law is going that direction, but any effort to kind of obscure it or make it seem neutral. And I can tell you that the judge, I think on the morning of the motions did not know that anything was wrong, right? I mean, he was later ribbing us like, Oh, this must have been the greatest day of your life to get this letter. Uh, well, you know, nothing is super exciting when you're flying to trial and you're prepping what you have and you start to get new disclosures, to be honest, but it's also the case that, when we were first there, the October 2nd, the morning of hearings. I don't know if you remember this, Wayne, but the judge called us back to Chambers before we started anything on the record. You know, maybe that's normal in town court there or something, but instead of going on the record to say, Okay, what order would you like to walk through the motions? Um, he'd called us back to talk about what we were going to do that day. And he made a comment like, this isn't going to take a lot of time. It seems like what we have here is the same stuff we've been talking about for a while. It mostly looks duplicative. And he said to the prosecutor is that your impression? And she said, yes, that's my impression. And so we were all sitting there in this tall room and she said, I think there's not a lot to talk about.

And the judge said, that's right. And I remember seeing on his desk, the letter. Because it has this, you know, glossy Niagara logo on it. And it's just, you know, a couple sentences. And I remember thinking, gosh, like this is so strange. We're sitting here, and the judge said, well, you think you have a lot to talk about?

And I said, yeah, I mean, I think when we get on the record, there will be some things to discuss here, your honor. I think things have changed a bit recently, but, but there was this notion that like, we're goingo be out of here in, you know, 30 minutes or an hour because everything has already been handled.

There's nothing really to discuss. Isn't that right, prosecutor? Yes, that's right. And thankfully we didn't pre litigate it off the record, but so we went in the

Wayne Hsiung: yeah.

Justin Marceau: courtroom and went on the record and immediately I said, your honor, Yesterday morning, 24 hours ago, we got a letter from the prosecutor telling us that the senior investigator in this case, the person who signed the incident reports as the supervisor is the brother in law of the complaining witness.

And everyone's like, wait, wait, wait. It was not one of those things that was flagged like, oh my gosh. And obviously this is going to be a huge deal for impeachment. I mean, there is no way that we're not going to call this brother in law because the body cam shows him supervising the arrest, which as Wayne mentioned, has shackles on her legs and arms, that even without the detail of the brother in law, you could make the case pretty strongly that the state police here were trying to humiliate a nice woman who runs a sanctuary.

It really did look like an abuse of power type situation. And then when you find out, oh my gosh, it was overseen by a family member, it all looks a lot worse. And so we just hammered the point that they dropped this bomb two days before. And, there was a learning curve for this judge, which was perfectly legitimate, because the judge's initial reaction was, well, she said she's not going to call him. And I said, well, your honor, that makes it worse, not better, but he has to be called now. Like he, he has to talk about the fact that they were communicating about this case as family. And it took a while, but we really drove home the magnitude of this error on the eve of trial. And then we talked about the preservation of the cows and it sort of stacked.

And then we also mentioned, which, you know, any one of these things in isolation might not have been enough. What Wayne also didn't, we didn't quite get into yet is that in the week prior, just a week prior, which was just, you know, a few days before this disclosure, we were also told that text messages between some of the investiga ting officers about this case were deleted. So not lost, not couldn't be retrieved. They were affirmatively deleted.

And, and removed from the phones about this case. And so we had text messages that were deleted and who knows what they were. It could have been one brother texting the other saying, can we use your trailer?

Because they used all of Gregson's equipment to come and get these cows. They used his trailer to come and load up the cows. It wasn't like the state police brought their trailer. They brought his trailer and his brother in law came and brought it, you know, what he claimed were his cows back to him. So it could have been text messages about, Hey, You know, between brothers, it could have been text messages, saying snarky things about Tracy.

We didn't know. But the combination of the fact that they didn't keep the cows, so there was no way to sort of test the evidence and make sure they really were his cows, you know, we don't know that. The combination of the fact that

Mariann Sullivan: Oh, we have his, his, his claim. I

Justin Marceau: he said, these are my cows. and we were supposed to trust it and then go to trial on his word.

Right.

Mariann Sullivan: mean, that is evidence though. Why, like, that is evidence. You're just arguing that you had no opportunity to cross examine him on it because they destroyed the evidence.

I mean, that would have been, his testimony would be evidence.

Justin Marceau: His word is evidence, but as Wayne said, there's some really interesting things about his, because he had made statements about the weights of the cows and the descriptions that seemed quite inaccurate with the cows that were actually taken from Tracy's property.

Right. And so we should have been able to cross examine and even go in and take an inspection of those cows and say, wait, are these the right cows? Because there was some discrepancy and

that makes sense with the idea that he promptly had them slaughtered. Right? We don't, we weren't able to sort of test this. So, yeah, you're exactly right, it was the ability to cross examine, the ability to sort

of say like, look, how would we know, like these cows didn't match at all with the descriptions you gave, right? I mean, if you identified somebody and he was 600 pounds off on the weight of cows when they were seized, that would have been material for the impeachment.

That's right.

Wayne Hsiung: Can I make two comments about this real quick, Mariann? Just two comments on this. The first is that the disappearing text messages was just the latest in a series of disclosures that were not made by the police. And in some cases, we caught them. So, for example, there were emails in State Trooper Mazurek's account showing correspondence between him and the attorney on this case, originally, for Tracy, Matt Albert, who had basically disclosed to Mazurek, look, I think this is a civil dispute, we need proof of ownership, basically pointing out, and thank God Matt Albert had those emails, because we, we had to go to him and say, can you check your emails, because, you know, Tracy told us there's this correspondence. They were in Mazurek's email account. They claimed Mazurek had no emails, showing there was correspondence between him and the attorney regarding kind of the civil ownership dispute. Which is very important, because it shows that Tracy was actually working within the system. She had retained an attorney. She thought this was going to be worked out. The other point I want to make, just as a point of commentary, not a factual point, is I think you were right about Brady violations that, in my experience over the last few years in animal cases, and frankly even beyond animal cases, because I've done some work for a couple of defendants who are not animal rights activists. Typically, prosecutors try to downplay and frankly even cover up a Brady violation. And people should be deeply concerned that that is a habit within the prosecutorial apparatus of the United States of America. Right? Because the prosecutors have a duty to the Constitution. They don't have a duty to win. That's not their obligation. Their obligation is to enforce the rights of every citizen under the Constitution of the United States. And Brady is part of the Constitution, is part of your right to an effective defense of the Sixth Amendment. the fact that systematically prosecutors deny defendants their rights should be concerning to everyone. Because a good prosecutor in a good system, when there's a violation of this sort, a Brady violation, or violation of state statutes, Banning nepotism, which, you know, exists in New York as well. A good prosecutor to come forward and say, we made a serious mistake. we want to disclose this and be very open about this, and they themselves, in my view, should have moved to dismiss the case at that point, when they realize there are Brady violations, when they realize there are witnesses, and it's possible District Attorney Laura Jordan didn't know about this nepotism issue, didn't know about the failed disclosures by her own officers that should have been disclosed, frankly, right after Tracy was arrested. But a good prosecutorial system would come forward, be very open about those mistakes, and suggest that there has to be some accountability for the system, for the system's own sake. But too often, prosecutors are just trying to win and put people in jail. And that's exactly what happened in this case.

Mariann Sullivan: Well, I think it just highlights the fact of why Brady is so important and why there are sometimes what feel almost like draconian penalties for these failures to disclose this because we do have to totally rely on the prosecutors by and large. Most of these things are not going to come to light.

They did happen to disclose this. Maybe they, maybe they really didn't realize it was important. I don't know. But, but if they, you know, most of the time, if they don't disclose a Brady violation, nobody ever finds out about it. so

Justin Marceau: That's right.

Mariann Sullivan: it really, really gets in the way of the system as the, as you point out, Wayne, of the ability of the entire system to, to function.

That's why a Brady violation really does need to be penalized.

Wayne Hsiung: The due process clause is fundamental to any functioning system of justice. It just can't work if you don't have due process in the law. If you don't have basic disclosures like this made, and just factually, I think it is very clear that Laura Jordan did understand the significance of it. Because we walked into court the next morning, I could see on her face that she realized something was profoundly wrong with her case.

And, you know, and again, I don't want to blame her individually because I think there are a lot of prosecutors who are trained to do this sort of thing, just to win cases. But it is a profound indictment of our criminal justice system beyond this one case.

Mariann Sullivan: I think that we've covered the main issues in the motion papers that I was able to see, at one point or another, but I would like to just return to one argument, and, and we've covered the ones that, you know, were the, the basis of the court's decision, but why was there a motion to stop referring to defense counsel in a derogatory fashion?

Wayne Hsiung: Maybe I should,

Justin Marceau: mean,

should, uh, I mean, I was looking forward to arguing that one. We didn't get to, uh, get to it. Do you want to, say something about it?

Wayne Hsiung: mean, it's so the They had fought tooth and nail to keep me out of the case and they had basically making a number of statements to the judge suggest that Me, my involvement in the case was illegal, was going to cause chaos, that I was in disrepute because of my own history as an activist and my criminal convictions and they had actually successfully convinced the judge to, kind of de facto revoke my pro hac vice status, allowed me to practice law in the state of New York, without any sort of hearing or notice at all. And it's still unclear to me how this unfolded, because it's very clear under New York law and under the federal constitution. If you are going to remove someone's counsel, because the right to counsel is a constitutional right, and the right to choice of counsel is part of that.

The right to counsel includes the right to choice of counsel, at least if you're choosing your own private attorney. In this case, you know, she had chosen me as one of her attorneys. I had been approved many years ago. And shortly before trial, the clerk of the court sends this strange email indicating to me they were not going to receive any motions from me, suddenly, because I had not been approved to practice the law in the town of Wheatfield.

Which, there's no case law or statute indicating that pro hac vice status or admission to a court case has to happen on a town by town basis.

Mariann Sullivan: Yeah,

Justin Marceau: Wayne had been admitted in the prior court, then the case was transferred and then the court was like, no, we're not hearing from you.

Wayne Hsiung: We're not going to allow you to practice.

Justin Marceau: We had to fly out and do a hearing.E ordered us to come out. We had to do a hearing. That was our first order of business before trial

Mariann Sullivan: it's kind of, it's kind of flattering, Wayne.

Justin Marceau: it was

Wayne Hsiung: yeah, they really didn't want me in the case. So they, basically, I don't know if it's ex parte or if there's, the judge just made some sort of random decision initially. And it was clear from that first hearing that the prosecution didn't like me and didn't like my presence.

I remember, I think I told you this, Justin, I walked into the courtroom, Our local counsel, Louis Mussari went back and was having some deliberations with the prosecution just before court, which happens all the time. You know, you'll have like a little off the record conversation. Just ask, Hey, introduce yourselves.

And, and I'd met Laura Jordan before, the prosecutor, but I walked into the room where Louis and her had started the conversation right after they'd started. She looked, her face went white. She looked like she had seen a ghost. She was not happy with my presence there. Like you could just see in her face, like there's a sense of shock.

And I think partly it was because she didn't realize Louis was our local council and she didn't realize Louis was on our case initially because they were just having pleasantries. And during that hearing, you know, in papers they filed, they said all sorts of negative things about me. And we filed that motion just because we thought, correctly, that would be highly inappropriate for that to be brought in front of the jury. You know, for them to be constantly saying, Wayne's a criminal, he's a convict, all these things. That's irrelevant to the case. It has nothing to do, and it could seriously prejudice our client. So, we never even got to that motion, though, because the judge basically dismissed the charges, or effectively dismissed

Mariann Sullivan: Dismissed the charges and now it's over! Tracy was put through hell for two years. Does she have any recourse? Is this over?

Justin Marceau: I mean, it's a great question. We're looking into it. And I mean, we're going to look at all the options. We're not committed to anything yet. I mean, you know, of course the informal remedies are where we're starting and we've been trying to help the community kind of rally around her and regain support and trust and all that kind of thing.

I mean, she was labeled as a thief and I think that was really hurtful for her. Like Wayne said, she's a religious person. It bothered her more than it would bother, even I think someone like myself, like she was really, really injured by this. So, we're not ruling out any, any sort of, civil actions and that kind of stuff.

But we haven't committed. I mean, I'll just say, I mean, you know, I've worked on a lot of criminal cases. It was a really weird matter, Mariann, because Tracy truly, even if we hadn't won on these motions, she truly didn't do anything wrong. I mean, it's not just that cows wandered onto her property and she offered care to them, but I mean, if you, if you imagine a loved one, a family member or anything else, like what would you want them to do if they found something or they had an animal that came in?

I mean, she went the extra mile. She called law enforcement and then within days she called an attorney and said, now I heard you have expertise in animal law, this isn't some sort of set up thing. And she said, what do I do? And the lawyer gave her advice.

And said, you're doing everything right. Make sure you don't just turn over the animals. If the person doesn't have proof of ownership and you now have a lien. I mean, it's, you know, we have larceny cases in other jurisdictions that are dismissed where the person has much less of a good faith basis than her. I mean, they make a decision based on a contract or their reading of the law that they don't have to give somebody something back here.

This Tracy sought out a lawyer. I mean, you know, I mean, like probably the preeminent expert in the, in the region, in Buffalo region for animal law. And so it, it was one of those cases where I think we looked forward in some ways to that full vindication, right? I mean, looking back, especially with Tracy, and how nervous she was, we wouldn't have done anything differently. You know, we went in fully arguing all these constitutional motions and hoping for a good result for Tracy. But I think we were all kind of looking forward to the trial as well, because this was,

Mariann Sullivan: She deserved to be vindicated.

I mean, it's nice to get a case dismissed on a quote unquote technicality, but she deserved vindication. Yeah.

Justin Marceau: think that it was one of those that, you know, we were glad to get it because she was so upset, but you know, it was super brave of her to go to trial. And as we're leading into trial, you know, we're making preparations for what happens to her sanctuary if she gets a, custodial sentence. We're talking about, like, would the judge immediately remand her to incarceration? These are super stressful moments, and I think she was feeling that, what we call in criminal law, the trial penalty, really acutely, right? I mean, one of my criminal law colleagues, uh, University of North Carolina, Chris Ahesek, has written a book called The Trial Penalty, which explains why so many people take pleas instead of going to trial.

And Tracy's case is, is sort of a classic example of that. I actually, the National Association of Criminal Defense Lawyers, did a study in New York system, which is even worse than the general system in 2022. And it shows that 96 percent of felonies plead out and over 99 percent of misdemeanors. So Tracy was in that category where you just, you're supposed to take a plea. And the trial penalty is if you don't take the plea where you were promised no jail, which she would have had to go and apologize to Gregson for even though she didn't do anything wrong. Then if you don't take that then when you get convicted, maybe the judge is mad at you for wasting the time and going to trial. And so you have to go to jail or something. And so, you know, we really were in one of those situations where it took tremendous bravery to say, I'm going to stand up to this because 99 point whatever percent would have taken the plea. And Tracy was one of the rare people who said, I think I did the right thing for animals, so I'm going to stick with this.

Mariann Sullivan: You know, I, In a conversation with Amy Jukinski, who you mentioned before, who's worked in this area a lot. This was a while back, and I'm just like, now I'm playing the law student of like, what if, so please forgive me. But I just feel like there is First Amendment, right here, not, not speech, religion, I, you know, or the equivalent.

I mean, as we all know, animal rights can be the equivalent of a religious belief, but it sounds like also her animal rights beliefs probably were rooted, you said she's a very religious person. I mean, she had a right to give sanctuary to animals who sought sanctuary with her.

Justin Marceau: Yeah. I mean, I,

Mariann Sullivan: I would love to see that vindicated and I'm, you know, that's the only reason I'm sorry that you won.

Justin Marceau: No, no, I, I totally agree. I mean,

Mariann Sullivan: You won so easily.

Justin Marceau: you won prematurely. No, I mean, it, it is really true. And when you talk to Tracy, you cannot miss the reality that part of her sort of spiritual, guiding life principles involve. Yes, exactly. That sanctuary, that

Mariann Sullivan: These animals sought sanctuary with her. They came onto her property, which is labeled a sanctuary.

Justin Marceau: I mean, if there's any consolation, we will have, we're finalizing Wayne's appeal, which I don't know if we want to get into that, but, you know, in Wayne's appeal,

um,

Mariann Sullivan: we do, but we gotta hurry.

Justin Marceau: You know, targeted Wayne's sort of, deeply held spiritual beliefs around animal protection.

And so we're going to try and make some precedent on that.

Mariann Sullivan: That's very exciting to me because I, we need to have that argument made more and more and more, whether, you know, in courts or in our lives or in law review articles or whatever. Because it's very, as everyone listening to this podcast knows, it's very real. All right, quick update. You just mentioned Sonoma.

We're not going to do a huge update on Sonoma because I want to do an interview on it when the case is more developed, which is, we're getting very close to that, but just tell us what's happening right now.

Justin Marceau: Yeah, I mean the quick update is just that we are preparing to file the brief. Brief is due in just over two weeks. We're vetting it with a number of different appellate experts. We've got very strong claims. It's one of those cases where the hardest thing is is You know, I mean, you know this, but great appellate briefs don't list 10 issues.

Like if you look at the table of contents, like a judge here, former chief judge of the 10th circuit used to say, I just look at the table of contents and I try to see whether they look like jokers or not. They think everything that happened is an appealable issue. And so you're trying to winnow down the issues. and that's genuinely hard to do in this case. I mean, I've worked on appeals on like, Much, much more serious crimes and there were fewer appellate issues. So it's a, challenge, but we're, we're going to come with between five and seven, I think all highly meritorious arguments. So it's, it's exciting.

And they're all arguments that could potentially make precedent in a favorable way for animals, things from the necessity defense that you've talked about and written about yourself. Things like religious beliefs relating to animals. All of those kinds of themes are running through and content based discrimination against people who are engaged in trying to rescue animals

Mariann Sullivan: I can't. I can't wait. I can't wait to see this brief. Yeah, and I definitely would love it if you two would come back. But before, unless you need to add something to that, Wayne, I also want to ask you guys about what's going on with Ridgeland.

Wayne Hsiung: just think we should send you the draft briefs to give us some feedback because I think, no, I'm

Mariann Sullivan: I'm happy to, I'm not sure what I could add to whatever you guys have put down. I'm sure that, I'm sure the briefs are terrific. I'm happy to look at them if you would like. Ridgeland, I had Chris Carraway and Stephen Seitz on not too long ago, I think it was episode 109. So if anyone listening wants to familiarize themselves with that case, which got another totally crazy case, which ended up dying at the end, um, you know, because the quote unquote, victim backed out.

But it has, you know, as we discussed on that podcast, is continuing using a Wisconsin law that allows people to bring a criminal... well, don't know exactly how, I don't remember exactly how it works. Maybe you can

request the bringing of a criminal case. And the last we left our heroes, they were in appellate court, there was an argument by the victim, quote unquote victim, which is of course this horrible dog breeding facility for research, to get this quashed, I guess.

So, so tell us what happened in appellate court and tell us where you are now.

Wayne Hsiung: they sued the judge in the case,

Mariann Sullivan: Yeah, it's like a writ of, it's like a petition for a writ of prohibition or something.

Wayne Hsiung: Supervisory Writ in the state of

Mariann Sullivan: Yeah,

Wayne Hsiung: and they,

Mariann Sullivan: very, very rarely granted.

Wayne Hsiung: I'm surprised they did it, because, I mean, an honesty often irritates judges, but especially when it's spurious, which in this case, it was, and it's a very reputable firm, and it's, what I could tell, widely regarded as the most powerful and reputable firm in Madison, Wisconsin, which, you know, is the capital of Wisconsin, so there's a lot of very high powered attorneys there.

And they filed a petition asking for two things. One, for the judge to allow them to be involved in the case, when the case law is very clear that it should be an ex parte petition. Because, this is not actually a criminal case, it is a petition for a special prosecutor to be appointed to determine whether a criminal case should be brought, right?

Mariann Sullivan: Okay, of

Wayne Hsiung: what the the judge does is appoints a special prosecutor, if we win the petition, based on a finding of probable cause the judge will appoint a prosecutor to investigate the case and gives them permission to file a criminal complaint if the special prosecutor determines that a criminal complaint is appropriate. The other thing they requested in this emergency supervisory writ was for the entire proceeding to be sealed, which was unsurprising to us because, you know, they do not want anything in court, they don't want anything in the record, they don't want any testimony to get out. and the Court of Appeals, I think rightly, denied both of those requests.

They said the case law is very clear on this before it's actually a criminal case, you don't have a right to intervene, to cross examine witnesses, to move to quash evidence in court. And secondly, there's no basis for the motion to seal the proceeding. You know, there's a basic right under the Constitution for the public, not just for defendants and complaining witnesses, for the public at large to have access to proceedings.

We do not operate as a kangaroo court or some tin pot dictatorship where legal proceedings happen in secret, they happen in public. And so, the court of appeals, I think, rightly and very quickly denied that appeal. And so we moved forward just this last week with our evidentiary hearing regarding the criminal abuse of dogs at Ridgland Farms.

And I think it was very successful. I'm estimating we have at least one in two shot of prevailing.

Mariann Sullivan: All right. It sounded from the news reports like it was really intense. And, after this hearing, you're awaiting the decision of the court on whether there will be a prosecution.

And also I think to create a precedent. Every state has all of these obscure laws about what you can do if the prosecutor doesn't prosecute cases that should be prosecuted. And as we all know, that is the fundamental problem of animal law, at least on the criminal side, that the cases are just not brought.

So I think the precedent in this case could be enormously important.

Justin Marceau: I'm excited about this case. Wayne has convinced me. I mean, it's, it's powerful. I mean, you know, this is for the same reasons you had it on the podcast. I think it's a unique case and you're going after an industry. You're going after the corporation and there's real stakes for them.

I mean, as, as shown by the way they're defending it. I'm very impressed.

Mariann Sullivan: Well, you guys have a lot going on and, you know, I hope you come back when the next chapter unfolds,

Justin Marceau: wait. I

Mariann Sullivan: should be soon.

Justin Marceau: that, you see how exciting it is to be doing animal activism defense, Mariann, because we end up in situations where, like, only in, in this realm, a small enough world, where Wayne can be simultaneously my client on an appeal and my co counsel. But I mean, that, that is not something in criminal matters.

Mariann Sullivan: And you get to fly all over the country to fascinating places like Newfane, New York.

Justin Marceau: Exactly.

Mariann Sullivan: No, the work you're doing is incredibly exciting. And I hope that some students listening will agree and there'll be more and more people going into this because we all know there's an unending a number of cases in which treatment of animals is actually violating the law and nothing is being done about it.

So, thanks for doing it. Thanks for joining us today. And I got you out under 90 minutes.

Justin Marceau: Thanks for having us. Appreciate it. Thank you, Mariann.

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