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Judge opens door to criminal charges over UW-Madison sheep experiments

A Dane County judge, siding with a petition brought by the Madison-based Alliance for Animals and national group PETA (see "PETA, Alliance for Animals seek criminal charges against the UW-Madison," 3/16/10), has determined that UW-Madison officials may be subject to criminal penalties for fatal decompression experiments involving sheep and has authorized the appointment of a special prosecutor to review the matter further.

"This decision determines that probable cause exists to conclude that certain named individuals...violated [a state statute that prohibits the killing of an animal through decompression], either directly or as party to a crime," wrote Circuit Court Judge Amy Smith in a decision issued Wednesday. "This decision permits, but does not compel, complaints to issue against the nine named individuals listed for the reasons cited above."

Smith found probable cause to believe that five authors of research papers, two lab employees, a veterinarian and the head of the campus' Research Animal Resource Center either intentionally or negligently violated the law. And she made clear that, while she lacked information to determine whether charges should in fact be brought, she intended her decision to send a message to the UW-Madison.

"In this situation, the University has apparently engaged in behavior resulting in the above-described animal deaths for years," wrote Smith in her 24-page decision (PDF). She noted that the UW-Madison may have believed that "an unwritten 'research exemption' to the law" allowed it to conduct these experiments. And "because the University interprets the statute in its favor, it may well continue to decompress animals to death contrary to law, unless I take action."

Smith wrote that she was doing so "with the hope that, at a minimum, it will deter future acts contrary to law. I also hope the University will use this Decision as an opportunity to re-examine its policies and activities so as to be in compliance with the plain language of Wisconsin law, not its own interpolated version."

In fact, Smith found that the law forbidding the killing of animals through decompression unambiguously does not contain an exemption for research. And she found that researchers likely "knew some sheep would die from decompression, or that there was a substantial and unreasonable risk of such a death."

The experiments, funded by the U.S. Navy, involve placing sheep in a hyperbaric pressure chamber to simulate what happens during a deep-sea dive, then monitoring them for signs of decompression sickness -- the bends.

As Isthmus first reported ("The Decompression of the Sheep," 8/27/09), the Alliance urged Dane County District Attorney Brian Blanchard to prosecute UW officials for violating state Statute 951.025, which declares, "No person may kill an animal by means of decompression."

Blanchard concluded that the law provides no exception for scientific research and that the UW appears to be committing a civil violation subject to forfeitures every time that an experiment results in the death of a sheep due to decompression. His review found that at least 26 sheep have died as a direct consequence of these experiments over the last ten years.

But Blanchard also decided that "it would not be a wise use of the resources of this office" to prosecute these violations (see "UW Gets Pass on Sheep Deaths, " 10/8/09). The Alliance and PETA petitioned a court to appoint a special prosecutor, as state law allows.

Judge Smith in her decision said that while she found no evidence of "malice," the violations may rise to the level of intentional, for which criminal penalties would apply. She also said the statute of limitations would limit prosecutions to four identified sheep deaths that occurred in 2007 and 2008.

The nine individuals Smith found probable cause to believe may be subject to criminal or civil prosecution are research paper authors Aleksey S. Sobakin, M.A. Wilson, Charles E. Lehner, R. Tass Dueland and A.P. Gendron-Fitzpatrick, former Diving Physiology Lab director Marlow Elridge, and lab researcher Averi Sauder, RARC Director Eric Sandgren, and veterinarian Michael J. Maroney. She appointed Madison attorney David A. Geier to serve as special prosecutor.

Sandgren earlier told Isthmus that the UW is working to get the law changed to allow the decompression experiments to continue. He also said the UW stopped doing the experiments when it became aware of interpretations that they violated state law.

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