Are We Afraid of Our Own Compassion?

Yesterday, the CA Court of appeal ruled in Wayne Hsiung’s appeal of his conviction in a case involving the rescue of chickens from Sunrise Farms in Petaluma, CA. Wayne was convicted of trespass, and that conviction was allowed to stand. The court, however, reversed Wayne’s other convictions, accepting his argument that he should have been allowed to present a necessity defense and a mistake-of-law defense.

The story behind those defenses involves me, peripherally, so I feel compelled to opine. In 2018, at Wayne’s request, I looked at footage of the conditions in an egg farm, which I then described in writing as follows:

The chickens in the video appear emaciated and sick; some of them are barely moving and clearly close to death. The animals trample upon each other to breathe and carcasses of trampled chickens are clearly visible on the ground. Parts of the animals’ bodies are torn, likely by other animals trying to push through to obtain food and air. Some of the animals appear to be cannibalizing others in order to get sufficient nutrition.

Based on this footage, I opined that the conditions for the necessity defense at common law might be satisfied and saving the animals might be justified. I also opined that the conditions for a defense based on California Penal Code 597e as it was then formulated–allowing people to provide basic care for neglected impounded animals–would be met if one entered the facility to feed them and give them water (under pressure from the Farm Bureau, the section was changed in a way that no longer makes sense). Even though my opinion was hypothetical, and I had no attorney-client relationship at the time with Wayne or the other activists, they would go on rescue actions with my legal opinion in hand and show it to law enforcement agents when they were arrested. At trial, Wayne wanted to argue the following: (1) that the necessity defense did justify his rescue action, or, alternatively, (2) that even if I was mistaken in my assessment of the necessity conditions, he relied on my legal opinion in good faith when performing the rescue.

In yesterday’s decision, which you can read in its entirety here, the Court of Appeal opines that it was wrong to deprive the jury of the power to decide whether the conditions at the farm met the requirements for an emergency that can be remedied through lawbreaking, as the necessity defense requires. I think this was correctly decided. In 2022, when I helped and supported animal rights activists in several different cases, I got to chat with jurors after the trials, and what I heard, loud and clear, from them was their frustration at not getting the full picture of these cases. The prosecution in rescue cases is often hell-bent on presenting the facts as if it were a garden variety burglary/larceny case, obscuring the defendants’ motivations as much as possible, and most importantly, doing everything possible to suppress any evidence of the actual conditions in these horrific facilities. Juries are exposed, if at all, to videos in which the sound is muted and one cannot hear the animals’ screams of terror and anguish, and to still images in which the specific animals are cut out of the picture, giving them slivers with no context. They realize there is a larger story but they don’t quite know what it is. In at least one case I’m aware of, a juror sent a letter of apology to a convicted animal rights activist in jail, once the trial ended and the juror actually understood what the case was about.

Which raises the question: why are prosecutors and judges in these cases so protective of the evidence and so committed to depriving the jury of essential context? The seminal rule in evidence law is that the jury gets to hear evidence whose probative value exceeds its potential to prejudice. The crux of the matter is that what makes factory farm footage prejudicial is precisely what makes it probative: without understanding the horrors that happen within the walls of these facilities one cannot understand the mental state of the defendants and the balance-of-evils calculus they put into these actions. We choose to err on the side of precluding jurors from viewing evidence that would be upsetting to them. But that is exactly the point: what happens in these facilities is deeply upsetting, hence the drive to rescue animals.

Jurors may or may not agree with the defendants, and with me, that these conditions constitute an emergency that calls for intervention through lawbreaking. But they should at least have access to the facts so they can make that determination. If we’re so hesitant to give them that chance, I submit it’s because we are afraid of our own human compassion. The idea being that what allows people to continue collaborating with the existence of this facilities is ignorance (or willfully closing their eyes). Because when one does see what happens there, unless one is insensitive to the point of psychopathy, one cannot help but to feel compassion. And then, jurors might vote to acquit, and that is the source of the prosecutorial and judicial concern that creates these paternalistic deprivations.

While I no longer collaborate with this activist organization, whose focus took on an odiously, and ignorantly, antisemitic turn on October 8 (I am far from the only Jew to disengage from the movement because of its hateful rhetoric), I think the Court of Appeal’s decision is a sound one, and am optimistic about the prospect of handing the information to jurors in these trials so they can decide for themselves if and when animal rescue is warranted.