The two old horses were so underweight that their ribs, bones and jaws stuck out. They had bad teeth and little food or shelter where they were kept in southeast Pierce County, court documents say.
But prosecutors had trouble proving that these horses actually suffered pain -- a requirement for convicting someone of animal cruelty.
Now, in a victory for animal rights advocates in Washington, the state Court of Appeals in Tacoma has established for the first time just how much pain is needed for a cruelty conviction.
The answer is: not much. The court said "mild discomfort" was enough to convict the keepers of the bony horses, and it defined pain as everything from "mental uneasiness" and "dull distress" to "unbearable agony."
"This is landmark," said Adam Karp, founder and board member of the Washington State Bar Association's animal-law section and an adjunct law professor at Seattle University. "It will guard against psychic pain as well as physical discomfort."
The court's broad definition of pain will make it easier to convict people under the second-degree animal-cruelty law, said Alicia Burton, the Pierce County deputy prosecutor who handled the horse case.
That law makes it a misdemeanor to knowingly or negligently cause "unnecessary" pain in an animal, but does not define pain.
Some say the court opinion went too far.
"I was looking at the same evidence and saying, 'It's not enough,' " said Brian McLean, the Kent attorney who represented the horses' keepers, Vern and Katonya Zawistowski of Graham. "The question is, how far do we take this?"
McLean said there was no evidence that his clients intended to inflict pain. In fact, "they wanted to provide ... a loving home" for their horses, he said.
He said that instead of treating the horses' keepers as criminals, "I think you provide them resources and work with them and give them an opportunity to do better."
The case began in May 2001 when a Pierce County Humane Society investigator went to check out neighbors' reports about the condition of the Zawistowskis' horses. The investigator, Walter Nicholson, worried about their weight and recommended better feeding, court records say.
Two weeks later, veterinarian Linda Hagerman examined the horses and found two of them, Princess Tarzana and Silver, severely underweight and with split or misaligned teeth. Princess Tarzana, a 27-year-old white mare who had lived there only a few weeks, also had a small melanoma cancer of the mouth.
On the vet's recommendation, authorities seized Princess Tarzana, Silver and three other horses under the couple's care, Nip, Tuck and Party Time, court records say.
A Pierce County District Court jury convicted the couple of second-degree animal cruelty in connection with Princess Tarzana and Silver.
But a Superior Court judge threw out those convictions, saying there was not enough evidence that the horses suffered pain. When that happened, "we stepped back and said, 'How do we ever prove these cases?' " said Burton, the prosecutor.
Also because of that ruling, the horses were returned to the Zawistowskis in October 2001, said Tom Sayre of the Humane Society.
McLean argued that, although Hagerman said she "imagined" that an underfed horse would feel hunger, there was no evidence that the two horses actually were miserable, malnourished, sick or in pain.
In reinstating the convictions this month, the Court of Appeals said the jury reasonably inferred that the underweight horses were extremely hungry and therefore felt at least mild discomfort. More important, the court said causing such discomfort violated the law against inflicting "unnecessary pain" on animals.
"This is good news for animals," said Sayre of the Humane Society.
"We prefer working with the owners," he said. "But if an animal is suffering, then we'll do ... what's right for the animal."
McLean said the horse keepers are considering appealing to the state Supreme Court. Neighborhood MapFor more information about the Interactive Animal Cruelty Maps, see the map notes.
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