February 28, 2013

Dr. Doolittle for the Defense?

So, once upon a time in France, this happened:
In the fall of 1457, villagers in Savigny, France witnessed a sow and six piglets attack and kill a 5-year-old boy. Today, the animals would be summarily killed. But errant 15th-century French pigs went to court. And it wasn’t for a show trial—this was the real deal, equipped with a judge, two prosecutors, eight witnesses, and a defense attorney for the accused swine. Witness testimony proved beyond reasonable doubt that the sow had killed the child. The piglets’ role, however, was ambiguous. Although splattered with blood, they were never seen directly attacking the boy. The judge sentenced the sow to be hanged by her hind feet from a ‘gallows tree.’ The piglets, by contrast, were exonerated.
That was not a unique occurrence. It was at least somewhat common at the time in Europe. What, precisely, was going on in a trial like that? There are some theories, of course:
The dominant explanation from legal scholars and historians is that, in a society of people who believed deeply in a divinely determined order of being, with humans at the top, any disruption of God’s hierarchy had to be visibly restored with a formal event. Another hypothesis is that animal trials may have provided authorities an opportunity to intimidate the owners of animals—especially pigs—who ran roughshod through the commons. A sow hanging from the gallows was, in essence, a public service announcement saying, Control your pigs or they’ll die sooner than you hoped.
Another theory, floated by the author of the linked piece at Slate, is that people in those days had a closer connection to the animals with which they worked every day and endowed them with more moral agency than we do today. That seems more like a modern-day animal rights theory overlaid on the past, given (as many commentators point out) the rather poor way that animals were otherwise treated in that era. Personally, I like the due process/warning to owners theory.

But regardless of why these folks were trying animals for acting like, well, animals, I’m more intrigued by the idea that these weren’t “show trials.” Particularly, I’m wondering about the role of the defense attorney. I’ve represented difficult clients in my lifetime, but never one that was of a different species. At the very least we could talk to each other (whether they would listen, of course, is a whole other story).

I’m not just being flip, either. Being able to converse with one’s attorney is a key feature of what it means to be competent to stand trial. Whether a defendant is competent, according to the Supreme Court, involves determining:
whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him.
Incompetence at the time of trial isn’t like an insanity plea – it’s a complete bar on being prosecuted, at least until competency is “restored.”

It’s not as if the concept of incompetence didn’t exist back in the middle ages, at least across the channel in England:
Medievil English law required the defendant to enter a plea before the criminal trial could proceed. If the defendant remained mute, increasingly heavy weights were placed on the defendant to induce a plea so that the trial could continue. But defendants who were mute because of mental disorder or physical infirmity (i.e., mute by visitation of God) instead of by choice (i.e., mute of malice) were spared this ritual.
Fictional naturalists and the odd saint aside, who can talk with a pig? I’ve never tried, of course, but if my conversations with Maia and Uzume are any indication it wouldn’t be very productive. At the very least, they don’t talk back and tell me anything useful (aside from an affectionate lick on the nose, which I don’t want any client to ever try), which can be kind of important when it comes to building a defense.

Which is what makes me think these animal trials were less about the critters themselves than the people who owned them. After all, there’s no evidence that the pig in the case mentioned above testified in its own defense or had any kind of idea what was going on. But you can damned sure bet that the pig’s owner, to whom the swine probable represented a substantial hunk of his property, got the message.

In the end, then, they really were show trials. Maybe not in the sense we think about them today (or the Cardassians), in which the outcome is preordained ahead of time, but in the sense that the object of derision and judgment has little, if any, say in or understanding of the result. It’s sort of like The Trial, only with a good barbeque at the end!

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