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New York Supreme Court Judge Denies Kiko’s Second Habeas Corpus Bid

By Lauren Choplin

You may recall that, on July 29, 2015, Manhattan Supreme Court Justice Barbara Jaffe refused to discharge Hercules and Leo after issuing an Order to Show Cause. While Justice Jaffe agreed with much of the NhRP’s argument, she stated she was bound by the decision of the Third Department intermediate appellate court that had earlier denied Tommy’s first petition for habeas corpus on the ground that chimpanzees are incapable of shouldering social duties and responsibilities and therefore do not qualify for personhood.

The NhRP had spent months gathering about 60 additional pages of affidavits from five of its prior experts, plus Jane Goodall. These made clear that chimpanzees routinely shoulder duties and responsibilities both in chimpanzee communities and in human/chimpanzee communities. We then filed Tommy’s second habeas corpus petition in Manhattan in early December, 2015 and again were assigned Justice Jaffe.

Justice Jaffe this time refused to issue the requested Order to Show Cause for Tommy. As her brief decision stated, she did so on the grounds that the NhRP had not offered any new facts. Since we had offered 60 new pages of affidavits, we were uncertain whether Justice Jaffe had seen them or whether she still felt absolutely bound by the earlier Third department decision.

In early January, the NhRP filed a second habeas corpus petition on behalf of Kiko in which we made clear that we were again filing 60 new pages of affidavits. This case, too, was assigned to Justice Jaffe. On January 29, 2015, Justice Jaffe denied that second petition, too, making clear that she had seen the 60 pages of new affidavits, but was not going to take further action.

The second Kiko ruling is available to view in its entirety here.

The Nonhuman Rights Project is appealing both Tommy’s and Kiko’s rulings to the First department in Manhattan, which is the only intermediate appellate court in New York in which the NhRP has not yet filed an appeal.

Below is the exact Jan. 29, 2016 ruling of the court in the Second Kiko case, with citations omitted for brevity (all citations available in original decision at link above):

I decline to sign the order to show cause filed by petitioner for the following reasons:

While successive petitions for a writ of habeas corpus based on the same ground are permissible, “orderly administration would require, at least, a showing of changed circumstances.” (Citations omitted).

Here, between 2013 and 2014, petitioner filed four identical petitions with four state trial courts, each in a different county. With each petition, it offered the same nine affidavits. It then recently filed another two petitions in New York County which are identical to those previously filed, except for the addition of affidavits from five of the nine original affiants, along with a sixth from a member of its board of directors [Dr. Jane Goodall]. All of the new affidavits rely on studies and publications that, with few exceptions, were available before 2015, and petitioner offers no explanation as to why they were withheld from the first four petitions.

In any event, whether evidence of the ability of some chimpanzees to shoulder certain kinds [of] responsibilities is sufficiently distinct from that offered with the first four petitions, and whether that evidence would pass muster in the Third Department, the decisions of which remains binding on me, are determinations that are best addressed there. (Citation omitted).

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