Ethical considerations in the prosecution of animal cruelty cases.

• Author: Fleck, Geoffrey C.

THE TENACIOUS AND TRUSTING--ANIMAL CRUELTY PROSECUTORS AND THEIR VICTIMS

ANIMAL CRUELTY AND NEGLECT cases are among the most important cases for any prosecutor to prosecute. The victims are uniquely vulnerable. They don't complain. They can't talk. They are usually abused by the very people they most depend on and who have accepted but betrayed the responsibility of animal ownership. As the Animal Legal Defense Fund so aptly asks, who but such prosecutors represent clients who are all innocent?

The link between animal cruelty and human violence is well established. It is no coincidence that one adolescent characteristic shared by serial killers (in addition to fire-starting and bedwetting) is the killing and torture of animals. So, when a prosecutor seeks justice for a victimized animal, he or she is really addressing but one example of a common and universal problem--the exploitation of the weak by the strong. If the State has any legitimate interest and the criminal justice system any valid purpose, it is the protection of the underdog (pun intended) and the punishment of bullies.

The prosecution of animal cruelty cases is an essential and truly noble calling.

It can also be one of the most challenging. It can be gruesome and heartbreaking. It can be difficult and frustrating. Investigations can be wanting, time can be short, priorities can be competing, and the law can be exasperating. Moreover, animal cruelty prosecutions offer unique and extraordinary ethical challenges. They require aggressive, creative, and passionate animal advocacy within the confines of the law. Where a prosecutor fails to take the high road, his or her case is lost. For animal protection advocates, not only is the case lost, but the cause may be lost, too. We are bound by stringent ethical rules including those promulgated by the ABA Model Rules of Professional Conduct and the NDAA National Prosecution Standards.

This article is not about the ubiquitous ethical issues that present, generally, in any criminal case. It is not about meeting discovery obligations or avoiding improper remarks in a closing argument--those are easy. Rather, it tries to identify some of the very real, troubling, difficult ethical dilemmas faced by animal cruelty prosecutors every day. These are the quandaries that I lost sleep over during my fifteen-year tenure as an assistant state attorney in the Eighth Judicial Circuit of Florida. They are the ones that I'll bet haunt you, if you are one of those exceptional lawyers who strive to find justice for the non-humans with whom we share this planet.

WE ARE SEEING A SOCIAL REVOLUTION

The issues and questions raised by this article are not rhetorical or theoretical--they appear more and more often because the world is changing. Whatever one might think about Michael Vick as a football player, there is no doubt that he raised the nation's collective awareness of the atrocities of animal fighting. That elevated consciousness about the welfare of animals pervades our everyday lives. It is now commonplace for animal issues to make the evening news--stories of abuse and fighting cases, animal hoarders, adoption efforts, "no kill" shelters, shark fin bans, endangered species--all are marketable to a highly-receptive general public. In 2006, there were only seven states with felony animal cruelty laws on the books. Today, there are only three states without them (Idaho, North Dakota and South Dakota). Where there once were none, there are now about 135 law schools with animal law curriculums. Animal cruelty is now correctly accepted as a real crime deserving of real attention, and we currently enjoy an exponential growth in the interest, awareness, and prosecution of animal crimes. The National District Attorneys Association even has the National Center for Prosecution of Animal Abuse to show their dedication to raising the bar on how these crimes are pursued in the courtroom.

It is therefore more important than ever for prosecutors to remain ethically diligent. It is crucial, for example, for prosecutors to make carefully-considered charging decisions and realistic and appropriate sentencing recommendations. Now that we and our animal cases are being taken seriously, never before have we been more subject to scrutiny. Never before has our conduct been more scrupulously examined for flaws. Never before has the societal and legal landscape been more treacherous to our credibility. There is no legal power greater than a judge or jury accepting a lawyer's word at face value. There is nothing worse than the loss of that acceptance.

We must remain ever mindful that "The prosecutor is an independent administrator of justice. The primary responsibility of a prosecutor is to seek justice, which can only be achieved by the representation and presentation of the truth. This responsibility includes, but is not limited to, ensuring that the guilty are held accountable, that the innocent are protected from unwarranted harm, and that the rights of all participants, particularly victims of crime, are respected." NDAA Rule 1-1.1 Primary Responsibility.

WHAT IS THIS THING CALLED "ETHICS?"

There...