January 31, 2007 | We began Day 8 at the PETA Kills Animals trial with the hope that yesterday's legal cliffhanger would be settled. Was it legal for PETA to immediately kill pets it picked up in North Carolina? Did Virginia law require PETA to hold the animals for 5 days or more? What's the deal with PETA's federal controlled-substance license? In other words, could PETA itself be in as much hot water as its employees?
At 5:00 this evening, we were left with a confusing mishmash of differing opinions. PETA did its best to muddy the waters, and offered up its top in-house lawyer Jeff Kerr as a sacrificial lamb to accept blame for any improper behavior. (Conveniently, he's not the one charged with a felony.) All PETA appears willing to do is shrug its shoulders and claim that it didn't mean to break any laws.
A few bits of business, for our readers who have asked, before we dive into Day 8:
First, the direct quotes we're reproducing on these pages are not from official court transcripts. They're based on our notes, and double-checked word-for-word against digital audio recordings made in the courtroom each day. In the event we get information that we've mistaken one word for another, we'll correct the record. But we don't anticipate that this will happen.
Second, the rumor is true. District Attorney Valerie Asbell did try to introduce a copy of PETA's tasteless "Your Mommy Kills Animals" comic book into evidence, to give the jury a taste of what PETA is really all about. But defense attorneys objected. And after a long, whispered discussion, the judge sided with them.
Third, a note about PETA's legal Dream Team. Despite the fact that they've apparently sold their souls to the Animal Liberation lobby, the lawyers defending Adria Hinkle and Andrew Cook are darned good at what they do. PETA is getting its money's worth. We just wish these attorneys were using their powers for good.
A Stray By Any Other Name Is Just As Dead
PETA manager Daphna Nachminovitch returned to the witness stand at 9:30 this morning. District Attorney Valerie Asbell picked up right where she left off with her cross-examination, in the Virginia law that governs animal shelters (of which PETA is technically one):
Asbell : "Do you agree that it says that 'an animal confined pursuant to this section shall be kept for a period of not less than five days, such period to commence on the day immediately following the day the animal is initially confined in the facility, unless sooner claimed by the rightful owner thereof.'? Do you agree with that?"
Nachminovitch : "That's what it states."
Nachminovitch maintains, as she did yesterday, that this entire law only applies to stray animals. She offered no proof for this. But to be fair, she conceded that she's not a lawyer. (PETA lawyer Jeff Kerr tackled this point later.)
There are, of course, a few exceptions to this law. If an animal is critically injured or ill, the Virginia Code says it can be euthanized "for humane purposes" right away. Animals that pose an immediate threat to people are also not subject to a waiting period. And, we learned, there's a third exception. "Immediate euthanasia and disposal" is permitted for...
"… an animal that has been released to a pound, animal shelter, other releasing agency, or animal control officer by the animal's rightful owner after the rightful owner has read and signed a statement (i) surrendering all property rights in such animal, (ii) stating that no other person has a right of property in the animal, and (iii) acknowledging that the animal may be immediately euthanized or disposed of…"
Translation: If you give your animal to PETA willingly, and you sign a statement saying that you own the animal and that you're aware PETA might kill it, the organization is legally free to give Fido the needle before the ink dries. That's the law in Virginia, where PETA is based.
This is where it gets complicated. North Carolina apparently has no similar law. And PETA admits that it hasn't been collecting signed waivers for animals it collects in North Carolina.
Nachminovitch: "It is our policy to have a consent form signed. But our legal counsel has researched this issue, and the State of North Carolina does not require give-up forms to be signed."
Asbell: "Are you stating that you, as the PETA organization, do not have to follow the rules of Virginia just because you come down to North Carolina and take animals?"
Nachminovitch: "I'm saying that on the advice of counsel, we have give-up forms signed as a matter of policy. But in the State of North Carolina, animals taken into our custody are not subject to a mandatory surrender form."
Asbell: "Where's the form that Pat Proctor, or anybody from the Animal Hospital signed on June 15, 2005."
Nachminovitch: "There was not a consent form."
Asbell: "Any reason for that?"
Nachminovitch: "I don't know the reason for that."
Just when we thought this legal confusion was going to be unresolvable, Asbell pulled out a trump card. Over defense lawyers' objections, she introduced an Inspection Report into evidence. Not just any inspection—a June 30, 2005 inspection of PETA's headquarters by the Virginia Department of Agriculture and Consumer Services (VDACS).
Nachminovitch testified that she was present when the inspection was conducted. It happened just 15 days after Hinkle and Cook were arrested.
Asbell referred to page 4 of this report—which Nachminovitch herself initialed and signed in several places—on which the VDACS inspector apparently told PETA that it had to obey the law dictating that "animals held require a holding period."
Again, Nachminovitch claimed that this didn't refer to any animals handed over willingly by their rightful owners, but she conceded moments later that those "rightful owners" might include Dr. Proctor at the Ahoskie Animals Hospital.
Making matters weirder still, when Nachminovitch insisted that it was PETA's policy to get a signed consent from when accepting animals from people—and Judge Cy Grant asked if he could see what one looked like—nobody on the defense's legal team could produce one. And Nachminovitch admitted that on the day of Hinkle and Cook's arrest, there were no copies of it in their van.
PETA's Kinder, Gentler Animal Slavery
The only thing stranger than Nachminovitch's legal hedging throughout this discussion was the odd sound of a PETA employee referring to people as the "owners" of dogs and cats. We'd never experienced that before—it's usually "guardians" and "companion animals."
But when it's convenient, PETA will apparently assert ownership over the animals it has otherwise sworn to "liberate." Here's defense attorney Blair Brown questioning Nachminovitch:
Brown: "When Bertie County Animal Shelter and Ahoskie Animal Hospital surrendered the animals to Adria and Andy on June 15, did those animals become the property of PETA, based on your understanding?"
Nachminovitch: "Yes."
Brown: "And at the point that PETA received those animals, based on your understanding of applicable Virginia and North Carolina law, could PETA legally, immediately euthanize those animals in North Carolina ?"
Nachminovitch: "Yes."
[ … ]
Brown: "So when an animal that is not a stray is surrendered, there's no reason for a hold."
Nachminovitch: "That's correct. And we own that animal."
Sick Or Healthy?
A central question that jurors are probably asking themselves is this: Were the animals that two PETA employees killed in June 15, 2005 healthy before they were put down? Killing critically ill dogs and cats is understandable, to most people. Taking the lives of the young, the healthy, and the adoptable is much harder to justify.
So we listened carefully when District Attorney Valerie Asbell walked Nachminovitch through a document described as a "partial summary" of sick and injured animals PETA found in the Bertie County shelter over the years. On one particular day in January 2004, PETA made a note of—and photographed—only one animal.
Asbell: "If there were photographs of other sick animals, wouldn't they have been on this summary?"
Nachminovitch: "Probably, yes."
What about all the others? Were they healthy? Nachminovitch insisted that although they may have been, they were all exposed to the Parvo virus—so "healthy" is a relative term. Of course, the wooden doghouses PETA installed in the animal shelter don't make things any easier:
Asbell: "Would you agree that Parvo is hard to keep out of those wood doghouses?"
Nachminovitch: "Yes."
Asbell walked her through several photos of live dogs—the ones taken by Bertie County shelter officials the day before Hinkle Cook showed up. Asked if she thought any of these animals had Parvo, Nachminovitch conceded again and again that it didn't seem to be the case.
And in the end, when asked about the dead dog police sent to a laboratory for analysis, Nachminovitch deferred to the judgment of veterinary pathologist Steven Rushton. If he testified that the dog didn't have Parvo, Nachminovitch said, she would have to agree with him.
Referring back to PETA's "partial summary" of animals from that shelter, Asbell got a stunning admission from the witness:
Asbell: "Is it fair to say that on all these pages from January 2004 to May 2005, that there were some healthy animals in that Bertie County Animal Shelter?"
Nachminovitch: "Yes."
Doggy Cremation Gets Cheaper
Yesterday we told you that Nachminovitch described paying a Virginia Beach company (Pet Cremation Services of Tidewater) "about $30,000 for cremation over the years." We even speculated about how many animal bodies that amount might cover. We were way off.
Nachminovitch said today that unlike members of the general public, PETA doesn't pay a hefty fee per animal for this service.
PETA—which claims to be the consummate defender of the dignity of every lab rat, piglet, and catfish—measures out its dead for disposal the way most of us measure lunchmeat. It pays by the pound. The going rate is between 40 and 50 cents.
And Nachminovitch testified that her $30,000 estimate only covered the most recent two years—the length of its current contract. Before that, she said, PETA send its frozen dogs and cats to another company, "American Waste Industries, or something like that."
$30,000 over two years, by the way, comes out to about $288 per week. At a rate of 45 cents per pound, that's more than a ton of dead animals every month.
Here we reach the most remarkable back-and-forth exchange of the day. And unlike the earlier legal discussion of technicalities within the Virginia Code, jurors followed this like a tennis match:
Asbell: "Andrew Cook and Adria Hinkle knew what you did with the bodies, and knew you had them cremated, and the cost of that, did they not?"
Nachminovitch: "I don't know if Andy Cook knew, but Adria Hinkle would know."
Asbell: "She knew what it costs?"
Nachminovitch: "I don't know that she knew what it costs. That's not really in the purview of her job. She knew what her job needs were. It's my job to deal with the Operations Department. That wasn't her job."
Asbell: "Well, she knew that the animals weren't cremated for free. She knew that, didn't she?"
Nachminovitch: "Right. She knew that it wasn't free, for sure."
Asbell: "She certainly knew that it costs PETA money to cremate these animals?"
Nachminovitch: "Yes."
Asbell: "It's a lot easier to leave them here. Wouldn't that have saved PETA money? Wouldn't it have saved PETA money just to leave the animals in Bertie County and let the Bertie County employees—who knew you all were killing their animals—dispose of them?"
Nachminovitch: "Yes. It would have saved us money. And had I thought of that money-saving solution, I could have and would have talked to [County Manager] Zee Lamb about it."
Asbell: "So the money-saving solution, I guess, that everybody came up with was to just dump them here in North Carolina. Was that the money-saving solution?"
Nachminovitch: "I didn't come up with that solution, no."
Asbell: "Your employees did."
PETA Changes Its Mind
Asbell introduced a letter into evidence this morning. Nachminovich identified it as a form letter—signed "Sincerely, The PETA Staff"—that PETA sent to anyone who wrote asking about the www.PetaKillsAnimals.com website. Several of our readers sent us copies of the letter back then.
Asbell had a copy too, dated May 16, 2005. That's a few weeks after this website went up, and a month before Hinkle and Cook were arrested. At the time, as we told our readers, PETA's party line included this tidbit:
"We do not run a traditional shelter. In fact, we refer every healthy, cute, young animal we can to shelters. And some of the animals we rescue are lost companions whom we are able to joyfully reunite with their families. Of the homeless animals we take in ourselves, the healthy and adoptable ones are fostered, adopted, or taken to local shelters."
Nachminovitch read this aloud for the jury. What they didn't hear, though, was that a few weeks after Hinkle and Cook were arrested, PETA changed its statement. The bit about helping "the healthy and adoptable" ones stay alive mysteriously disappeared. We've seen copies of that version too, which PETA was still sending out as recently as yesterday.
With Asbell pressing her, Nachminovitch eventually acknowledged that although some of the animals Hinkle and Cook picked up were healthy, none of them was ever given a chance to be adopted. Not one. But in the weeks before Hinkle and Cook were arrested, that's exactly what PETA claimed it was doing.
The Value of Good Record-Keeping
Previously, witnesses have testified that PETA employees in the field keep meticulous records on everything from the age of animals to the amount of sodium pentobarbital it takes to kill them.
But the record keeping apparently stops when the heart stops beating. This, Nachminovitch said, is why nobody apparently noticed that Hinkle and Cook were dumping animal bodies in North Carolina instead of bringing them back to The Freezer That PETA Built:
Asbell: "With all the extensive records that your organization kept, you're saying that there was not a log book at the back of that building to check in those animals, as you brought them back, and make sure the same amount of animals—that they were killing, and using the drugs for—were brought back."
Nachminovitch: "No."
Asbell: "Is that your testimony?"
Nachminovitch: "That's my testimony."
Asbell: "And that's just a record-keeping error?"
Nachminovitch: "It's not an error. It takes a lot of manpower to check and keep these logs. There was no reason to think that these bodies weren't coming back. We just assumed."
The Roller-Coaster Slows Down
The rest of Day 8 was comparatively ho-hum. PETA's next defense witness was Dr. Benjamin Shelton, a veterinarian who has euthanized an awful lot of animals for the North Carolina county he lives in. Over 1,100 of them, in fact. Shelton testified that Animal Control Officers typically select which animals are euthanized. And "generally, there will be some that are adoptable animals, sure."
Shelton also testified that sometimes his clients bring him animals to be put to sleep, but they're not what he would call "healthy":
"I don't know that I've ever had anyone bring me a really healthy animal [for euthanasia] that didn't have some underlying psychological problem, that they just wanted to kill and get rid of. Most people—if their pet's adoptable—they would want that animal adopted first."
Funny—that's what we thought too.
Another PETA witness, North Carolina State University Veterinary School Professor Dr. Kelli Ferris, testified in a hypnotic monotone that a large percentage of unwanted pets in North Carolina are being euthanized. Ferris put the number at around 90 percent—which is about the proportion that PETA killed in 2005.
We're confused: If killing dogs and cats is a lamentable thing, why is PETA doing it? And if it's a necessary evil—and PETA's no more efficient a killing machine than North Carolina 's existing shelters, why are they involved?
Ah, yes. The humane angle. PETA believes that its preferred method of euthanasia—a lethal injection—is vastly more humane than the gas chambers used in most North Carolina shelters. But Dr. Ferris testified today that a "six-percent concentration" of carbon monoxide "is, I believe, the ideal percentage for humane euthanasia" Underline "humane."
If PETA's chosen expert considers death by gassing to be humane, who are we to argue? After all, it's exactly what PETA has been trying to get U.S. chicken processors to adopt for a few years. But when it's KFC in the crosshairs, they call it "Controlled Atmosphere Killing."
PETA's Top Lawyer (Really!)
In between Drs. Ferris and Shelton , PETA General Counsel Jeffrey Kerr took the stand. Kerr testified that PETA's animal-killing program depends on three government licenses. One from the Federal Drug Enforcement Administration (DEA), and two from the Virginia Board of Pharmacy.
We heard testimony last week from a DEA supervisor that PETA was required to register with the feds before using controlled substances in North Carolina. It didn't do that. And Kerr, who's not in any legal jeopardy himself, took responsibility for the gaffe—sort of:
Defense Attorney Lisa Stevenson: "On June 15, 2005, whose responsibility was it to ensure that the CAP [PETA's Community Animal Project] workers lawfully possessed the controlled substances and could dispense them in the state of North Carolina ?
Kerr: "Insofar as they were relying on my advice, it would have been my responsibility."
We say "sort of," because Kerr spent a half-hour insisting that (a) he did his homework on the legal requirements, (b) he decided that PETA didn't need to have a separate DEA permit for North Carolina , (c) he called the DEA for their take, and (d) they told him that he was right.
When asked exactly who he talked to at the DEA, Kerr's memory failed him. He had nearly identical stories to tell about supposed research phone-calls to the Virginia Board of Pharmacy.
Kerr's position is that PETA only needed one DEA license—for Virginia —because its only base of operations was in Norfolk:
"It was a question of doing the research on those statutes and those regulations, to determine if there was anything one way or another about a couple of questions. One, whether PETA could properly take the drugs across the Virginia-North Carolina state line … And then there was the issue of whether or not a separate registration was needed in North Carolina. And my conclusion was that there was not—because as I read the DEA regulations, the registrations apply to a particular facility. An office location."
A brief note about federal laws—and you Constitutional Law scholars out there should feel free to set us straight if we're wrong. Individual states have laws to control what happens within their borders. The whole reason we have federal drug laws is to control what can and can't cross state lines. This is why the DEA has to be a federal agency.
PETA is based in Virginia , and uses controlled-substance drugs in Virginia and North Carolina. Kerr is suggesting that the DEA has no reason to make PETA register in both states. This is silly. And unlike DEA supervisor Brian Reise, who testified last week, Kerr didn't bring any documents to back up his opinion. (Kerr noted on the stand that he wasn't in the courtroom when Reise testified. Judge Grant has sequestered the witnesses during this trial, so none of them can hear what the others tell the jury.)
Last week Reise testified that "there is no registration in North Carolina for PETA to handle, in any capacity, controlled substances." When asked to confirm that "nobody from PETA in Norfolk , Virginia can dispense or administer drugs in North Carolina," Reise agreed.
Kerr's other contribution to today's circus was his expert legal opinion—also not supported by any documentation—that the Virginia law requiring animal shelters to hold animals for five days before killing them only "applies to stray animals."
He made one good point: Animals taken by PETA in North Carolina presumably have already had their "waiting period" there. But Virginia law—which PETA insists it follows to the letter—says the waiting period starts "on the day immediately following the day the animal is initially confined in the facility." [emphasis added]
Apparently, for the purposes of skirting the federal drug laws, Kerr says PETA's only "facility" is in Norfolk. Does the 5-day clock start again when animals get there? Maybe. But it's largely a moot point, since the typical North Carolina pet arrives at PETA Headquarters in a trash bag.