Judge says UW-Madison primate center conditions are shocking, but rejects call for prosecution

PETA asks for reconsideration of ruling in case involving two rhesus monkeys

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A Dane County judge has found probable cause to believe the UW-Madison’s primate research center committed criminal violations of the state’s cruelty-to-animal laws after reviewing evidentiary submissions she said “shock the conscience and are extraordinarily alarming.” 

But after reaching this determination, circuit court Judge Nia Trammell declined to exercise her authority to file charges against the facility and appoint a special prosecutor to pursue them, as a petition filed by People for the Ethical Treatment of Animals (PETA) had urged. In a 19-page decision dated Oct. 12, she wrote that “given the totality of the allegations made and evidence available, it appears it would be difficult for any prosecutor to meet their burden of proof and obtain a conviction on the alleged offenses.”

PETA, represented by Madison attorneys Andrea J. Farrell and Lisa C. Goldman, on Nov. 1 filed a motion for reconsideration, arguing that Trammell committed “a manifest error of law” in reaching her decision, in part by relying on claims made by unnamed persons at the primate center and relayed to the court by Dane County District Attorney Ismael Ozanne.

“There is nothing in the Decision and Order to explain why the Judge deviated from the requirements of the statute and the applicable rules and principles,” states PETA’s motion. “Petitioner respectfully requests that if the motion for reconsideration is denied, the Judge provide explanation as to why she would cast aside the proper exercise of her role and why she would credit an unsworn, out-of-court, anonymous statement from the putative [potential] defendants or their representative over the in-court sworn testimony of Petitioner supported by photographic evidence and the putative defendants’ own contemporaneous business records.” 

As previously reported in Isthmus, PETA in June 2022 asked Judge Trammell to issue criminal charges against the Wisconsin National Primate Research Center, after months of waiting for Ozanne to take action. State law allows judges to decide whether there is probable cause to order a criminal prosecution “if a district attorney refuses or is unavailable to issue a complaint.” 

The request for criminal charges stems from an undercover operation conducted by PETA in 2020. An operative from the group was hired by the research facility, which houses about 1,500 monkeys, including just over 1,000 rhesus macaques — highly intelligent and social animals featured Nov. 5 in a segment on the TV news magazine 60 Minutes. (The animals, the program noted, share 94 percent of their genetic makeup with humans.) 

Over a period of six months, the undercover operative gathered photographic and video evidence on the treatment of primates at the center, especially two rhesus macaques named Cornelius and Princess. PETA obtained additional information through open records requests. The group’s petition seeking appointment of a special prosecutor states that the two monkeys were “subjected to cruel treatment in their use as ‘breeders,’ and deprived of the ability to engage in any behaviors that are both normal and necessary” to their well-being.

Cornelius was born at UW’s primate center in 2010; Princess was born at the now closed New England Primate Research Center in 2004 and acquired by the Wisconsin center in 2014. Both were housed in small cages with no exposure to anything remotely resembling a natural environment. In a hearing before Judge Trammell’s courtroom in July 2022, Barbara King, a professor of primatology and biological anthropology at the College of William & Mary, called these conditions “really extraordinarily bad and cruel” and the caging at the center “horribly inadequate.”

According to PETA, Cornelius was subjected to “multiple rounds of electroejaculation — a painful procedure in which the animal is strapped down and an electric probe is inserted into the penis,” seeking, unsuccessfully, to prompt the release of sperm. Princess, meanwhile, was so distressed she engaged in severe self-mutilating behaviors, tearing out “upwards of 90 percent of her hair, excepting only the hair between her shoulder blades that she could not reach,” according to a brief from PETA submitted to the court. Princess was euthanized by the center as part of an experiment in 2021.

PETA, in its petition, named four primate center officials as being criminally culpable: Jon Levine, the center’s director; attending veterinarian Saverio “Buddy” Capuano; manager of Colony Services Bonnie Friscino; and Peter Pierre, the center’s head of Behavioral Services. 

Primate center spokesperson Jordana Lenon referred a request for comment to university communications, which pointed to a statement posted on its website on Oct. 15. It notes that both a Dane County judge and the Dane County DA rejected PETA’s call for “criminal charges against dedicated and respected members of UW-Madison’s scientific community.” The statement said the university “remains deeply concerned” that these employees “had to endure the threat of criminal prosecution for more than a year.” 

The statement made no mention of Trammell’s finding that there was probable cause to believe criminal violations occurred or that she was shocked and alarmed by what she had seen.

The primate center boasts on its website that it is “a leader in several key areas of basic and translational biomedical research, as well as in the humane care of captive animals,” and that its research has helped advance therapies for ailments including HIV, kidney disease, glaucoma and developmental disorders. PETA, in a statement on the Wisconsin case, has a different take: “After more than 60 years, 16,000 dead monkeys, and nearly $700 million in taxpayer funds, the WNPRC has produced zero cures for human diseases.”

The account of the proceedings laid out in Trammell’s ruling suggests she felt a good deal of frustration over Ozanne’s handling of the matter. Following the July 2022 hearing, Trammell wrote, “I instructed Ozanne to report to me within the next 60 days as to whether or not he intended to file a complaint regarding the allegations, after which I would determine whether I would issue a complaint and appoint a special prosecutor.” She says he responded 59 days later to say “his office had still not made a decision on whether it would prosecute,” which it blamed in part on not obtaining requested documents from PETA.

In a response letter dated Oct. 6, 2022, Trammell said she “express[ed] concern that Ozanne’s office had yet to make a decision despite my directive.” She asked him to let her know by Oct. 14 how long he thought it would take. According to her account, “Ozanne did not inform me until Oct. 17 that his office had still not made a decision [and] could not give me any timeline or date” by which it would do so.

Trammell held a status conference on Dec. 14, 2022, “to address Ozanne’s delay in making a decision about whether his office would be filing a complaint.” Ozanne acknowledged that he had by now received all of the documentation he requested from PETA but had yet to arrange a site tour of the primate center he felt was necessary to make his decision. He asked that the petition be dismissed on grounds that his office was on top of the situation; she declined. 

Another status conference was held on March 13, 2023. Ozanne reported that the facility tour was completed but he was seeking additional documents from the center; she set a third status conference for April 4, “by which time I expected Ozanne to report back on the progress of his investigation.” On April 4, Ozanne said he needed more time. 

Finally, at a status conference on May 23, Ozanne reported that his office had completed its investigation and that it would not be filing a complaint because “he did not believe there was enough specific evidence to meet the burden of proof for charges under Wis. Stat. Chapter 951,” the state’s law against cruelty to animals.

Ozanne declined an opportunity to comment to Isthmus on the matter.

In its final brief on the petition, in mid-July, PETA argued that Trammell had the authority to issue a complaint and appoint a special prosecutor. In her Oct. 12 decision and order, the judge concluded: “On the basis of the evidence presented to me at the evidentiary I find that PETA has met the threshold of establishing probable cause.”

But Trammell went on to say she was exercising her discretion “to not issue a criminal complaint” and appoint a special prosecutor. She said that despite her belief that “the photos and information PETA submitted as evidence shock the conscience and are extraordinarily alarming,” she needed to heed the “fuller picture” that emerged as a result of the DA office’s investigation. In the end, after pushing back on Ozanne’s excuses and delays, Trammell came to agree with his “analysis that it would not be prudent to issue a complaint or attempt prosecution.”

This is what PETA is now challenging in its motion for reconsideration. It argues, in part, that the judge improperly relied on “hearsay assertions” offered by the putative defendants and relayed by Ozanne that were not in the evidentiary record and ought to have been afforded “zero” weight. These include unsubstantiated claims regarding how animals at the primate center are treated, which were at times contradicted by testimony in the actual record. The filing also argues that Trammell “must exercise neutral and detached judicial discretion,” which is not the same as prosecutorial discretion, which is what she seems to have applied.

“Cruelty-to-animals charges won’t bring back Princess, but we must not erase the crimes against her and Cornelius, who is still trapped in this hellhole,” PETA Senior Vice President Kathy Guillermo said in a statement. “PETA urges the Dane County Circuit Court judge to reconsider and immediately issue charges against the WNPRC.”

While there is no deadline for Trammell to respond to PETA’s motion for reconsideration, attorney Farrell says the judge “has been sensitive to the fact that we are dealing with the suffering of live animals and to the fact that the statute of limitations has been running since 2020.” 

As for whether PETA will appeal if Trammell doesn’t change her mind, Farrell says, “We want to give the judge an opportunity to reconsider her reliance on the primate center's assertions before we consider next steps.”