I had assumed that the tension and drama in the Vernon Hershberger raw milk trial would build gradually over the expected five days of the proceedings, culminating in a verdict that would either acquit him or possibly send him to jail for up to two-and-a-half years.
Yet there I and dozens of other attendees were in the opening minutes of the trial, before even the newly-selected jury of a dozen area citizens, and two alternates, had been brought in, sitting on the edges of our seats. The two sides in the case were engaged in an intense argument over a prosecution motion to prevent the defense from presenting information to the jury about the membership arrangement that drives Hershberger’s food club; such a prohibition would prevent the defense from including among its witnesses members of Hershberger’s private food club. Hershberger is charged with four criminal misdemeanor counts in connection with not having retail and dairy permits, and with violating a holding order.
The prosecution had previously convinced the judge to rule its way on a number of important issues–no arguments about Hershberger’s possibly criminal intent for failing to obtain retail and dairy licenses, no arguments about the safety of raw milk, no arguments about the regulators’ reasons for going after Hershberger via the infamous raid of June 2010, which led the raw milk farmer to break the seals and cut the tape intended by the Wisconsin Department of Agriculture, Trade, and Consumer Protection (DATCP) to shut down his farm store.
Now, they wanted the private membership arrangements excluded because they would suggest Hershberger had an “exception” from Wisconsin regulations requiring retail and dairy permits. “There are places like Sam’s Club where there is a membership and there is no exception,” argued Eric DeFort, an assistant attorney general with the Wisconsin Department of Justice.
The lead defense lawyer, Glen Reynolds (no relation to the judge, Guy Reynolds), was exasperated. Hershberger’s food club was a special kind of arrangement, outside the retail model. “‘The members have contributed time, money, expertise. This is not a typical retail store. We need to be able to explain this arrangement, You will learn from this, judge.”
Back and forth the lawyers went. DeFort kept pounding away at his argument that Hershberger was operating a retail establishment. “If you are selling, you are selling to consumers. There is no such exception.”
Nothing doing, replied Glenn Reynolds. “The state will show a price list. This is in the Amish tradition…Some members paid the price, and some paid in labor, and some didn’t pay…We are intending to show, this was not a retail establishment. The members did not obtain food in the conventional way. It is completely different.”
As the argument heated up, Judge Guy Reynolds looked ever more like a man in great pain. By ruling so consistently for the prosecution, he had created a logical impasse not only for himself, but for the defense. An upset Glenn Reynolds finally exclaimed: “Let’s not convict him (Hershberger) before a trial. If you keep out testimony by the members, he will be convicted.”
The prosecution wouldn’t let up. “This is just a way for the defense to get irrelevant evidence in,” said DeFort.
Nor would the defense give in. “We are entitled to a full and fair trial.”
Finally, Judge Reynolds had heard enough, and seemed to realize he was on the verge of creating a situation in which Hershberger’s lawyers might be unable to defend the farmer. “I am going to permit some reference to the way some business was done…I would hope that the defense does not need to parade 40 witnesses out…I won’t permit any witness to say I can sign this contract, or that no one has to obey the law.”
Addressing Glenn Reynolds, the judge issued a warning: “Counsel, if you go too far with it, I will stop you. Intent is not an issue in this case…It won’t matter what people thought the contract did. So I’ll let some of this evidence in.”
Finally, a victory for the defense. A partial victory, but a win nonetheless.
Following the judge’s decision, the judge ordered the jury in, at about 2:30 in the afternoon, “if the jury is still here,” the judge joked. The seven men and seven women entered and at long last took their seats. It had taken three-and-a-half hours Monday morning for the jury to be selected, which was what the judge had expected. The biggest surprise of the jury selection: When the judge asked how many of the 90 or so jury candidates had heard about the case, nearly all raised their hands. Clearly, all the advance publicity I described in my previous post had had an effect.
The clashes between the prosecution and defense continued before the first witness, an inspector for the county health department, had even completed his testimony. After the prosecution led him through his opinion that Hershberger was running a retail operation, the defense wanted to cross examine him about a report he had prepared in which he said the investigation of Hershberger was prompted because of concerns about raw milk safety.
At this point, the judge excused the jury for the day, so members wouldn’t witness the clashes over procedure.
“He (the inspector) provided documentation about what he saw,” Glenn Reynolds argued when the prosecution objected to the introduction of the report. “I want to cross examine him about his opinion. It is outrageous, they would call a witness. He gave an opinion about the law, that it is a retail establishment…the jury now has an inference that Mr. Hershberger is a lawbreaker…The truth is he can’t get a retail license. This testimony alone could send Mr. Hershberger to jail for a year.”
DeFort argued back: “He could have obtained a license. But he would have had to stop selling a certain product.”
Ah, the product that couldn’t be mentioned. A few spectators laughed out loud at the absurdity, which enraged the judge. “I won’t tolerate that behavior,” he exclaimed. “This is not a basketball game.”
Eventually, the judge deferred a ruling on whether the defense will be able to cross examine the regulator about his report mentioning raw milk, though the judge seemed inclined against it. Maybe it is a basketball game, one in which one team has its basket a foot lower than its opponent.
**
Hershberger supporters have been trying to live-stream the trial. Quality of the audio has been an issue. You can try this link and check how it is going.
God help us…God keep us…God be with this humble farmer!
He is charged with four criminal misdemeanor counts–failing to have a retail license, failure to have a dairy permit, failure to have a milk facility permit, and violating a holding order.
After I last posted, I had googled “Hershberger trial” to see what exactly he was charged with. With all the muzzles and blinders, etc slapped on the participants, I am not sure what anything is! How can you have a fair trial if you are muzzled?
http://www.foodsafetynews.com/2013/05/how-the-vernon-hershberger-food-licensing-trial-could-shift-views-on-food-safety/#.UZtk9spIHEo
I am not warmed up to the owner of the above link, the following statement I believe is spot on: ” The controversy, and attendant legal problems, stem from the fact that the farmers are increasingly selling their food via private contracts, outside the regulatory system of state and local licenses and inspections that govern public food sales.”
It isn’t about safety, it is about money, power and control. How about this quote; “Food sold by unlicensed and uninspected food is potentially dangerous, say the regulators,” OMG What about all the illnesses caused by what has been licensed and inspected?
“She believes Hershbergers farm-raised food is more wholesome and nutritious than mass-produced food in the supermarkets, and that her and her familys health improvements are testimony to that reality.”
” To many of them, who are parents, safety means not only food free of pathogens, but food free of pesticides, antibiotic residues, genetically modified (GMO) ingredients, and excessive processing.”
“At its heart, this is a struggle over a steady erosion of confidence in the integrity of our industrial food system, which has been hit by disturbing disclosures seemingly on a weekly basis.”
” Voters in a number of states have mobilized to push for laws requiring labeling of foods for the presence of GMO ingredients.”
I believe the above 4 quotes says a lot in regards to what is a growing need/want from the public.
“Eroding confidence in the food system is no small matter. It threatens large corporations in serious ways if long-established food brands come under prolonged and severe public questioning. It threatens economic performance if foods deemed safe become scarcer, and thus more expensive. And it is potentially explosive politically if too many people lose confidence in the competence and expertise of the food regulators, and encourages folks to seek private solutions.”
The factory farms and over processed ‘foods’ cannot compete with what the growing public is demanding. I think many already knew that it hasn’t been about safety for a long long time.
The regulators/corporations, et al, are in a fight for their lives. They see the writing on the wall and are in fear of loosing it all. When a person becomes desperate and have nothing to loose, they will do anything to maintain their status quo. Very dangerous people.
If the first day is any indication of this trial… Vernon will not only win, but he will send a very strong message to the Food Inc Nazis!! People matter more than sterile food policies and corporate market protecting regulations. Vernon, Schmidt, MLK, Ghandi….he walks with greats!!!
Glass ball predictions are always guesses… But from what I have seen heard and felt in my gut, a big win is coming. The jurors had it written on their faces!!
They were not amused with DATCP antics. They feel for the Amish ways. DATCP has just over reached, this is their Waterloo.
Sylvia, not sure you noticed, but I wrote that article in Food Safety News that you quoted so liberally from. Thanks.
That is correct. It would be impossible for Hershberger to sell raw milk and obtain the dairy and retail licenses the state says he must have. What’s astounding is that the judge refuses to allow Hershberger’s lawyers to point out that Catch-22 to the jury. But as Mark McAfee indicates, the jury may well smell a rat.
A brief report on Day 2 of the Vernon Hershberger criminal misdemeanor trial in Baraboo, WI. Two main developments:
1. The state showered the jury with photos of food products on the shelves and in the freezers and fridges of Vernon Hershberger’s farm store. Prosecutors displayed probably 50 photos to jurors along with various tax and corporate filings, asking regulators to identify exactly what the products and forms were…presumably to “prove” that Hershberger runs a food retailing operation that is open to the public. I just wondered, as the jurors stopped taking notes early in the afternoon, if the effort to go into overwhelm might, indeed, have numbed the jury. Certainly lots of weary spectators by the time the session ended.
2. Before the deluge of photos and forms, the lead defense attorney, Glen Reynolds, took to task a Wisconsin public health inspector during cross examination. The inspector had assumed that the presence of pricing and brand labels on food at the farm meant Hershberger was running a retail operation, but Glen Reynolds pointed out that some of the food was for Hershberger and his large clan of ten children. The inspector said he “didn’t know” if members of the public could come in and purchase food. “If these products are not offered to the general public, then your conclusion is inconsistent, right?” the defense attorney asked. “Yes,” the befuddled inspector admitted.
Another account: http://www.thedailypage.com/daily/article.php?article=39969
The junk OJ that you find at supermarkets is not fresh, and is pasteurized, even the organic so it cannot ever have the same nutritional benefits.
Yet the Big Ag OJ producers have never tried to suppress or shut down those roadside direct-to-consumer sales to the public as far as I know.
I wonder why the difference.
In looking at the jury, I see good people who live in more rural areas. In looking at the prosecution, I see four suited up government agents parading more government robots to tell us how they process paperwork and don’t know anything else. It was telling when the young inspector said that the only inspection he went on that included numerous armed policemen was at the Hershbergers. I’m thinking that the good people on the jury can see that this looks like government overreach and why are they so desperate to convict this small farmer who hasn’t done anyone harm?
I was going to bring my three younger boys to the trial today for “the best day of school” they’d have all year, but one child is sick today. It is hard not to be there. Our prayers remain with the Hershbergers. If the jury comes back with guilty verdicts, I will never look at our country the same way again.
http://www.thedailypage.com/daily/article.php?article=39974&sid=a9836d5b23172bc2019c35033859a48a
For Vernon… “if it has a tit you must aquit….”
The female bailiff just stared at me all day…she either likes me or she is trying her best to arrest me and make a pay grade increase for handcuffing someone from CA. She was staring at my Get Raw Milk shirt and the fact that I had it covered with my jacket…one downward move of my zipper to expose my raw milk logo and I would have been tazered….beaten and drug off…guranteed.
That was Monday.
Glad to be back home in half-sane CA.
Mark
I am not warmed up to the owner of the above link.”
But Sylvia, the owner of that link allowed David to post his article at the owner’s website. Does providing an audience for David warm your heart any?
Lynn
DATCP is pissing off the jury…that will be the end story of this entire Waterloo event. DATCP is screwing the people out of all of the facts, screwing the people out of raw milk and most of all the truth and the jury sees this and does not like it. I swear I saw some serious second amendment hunter types on the jury panel. They do not like stuffed over paid suits and especially anally retentive DATCP attorney general types. Piss off the jury and you are done. I think that is exactly what is happening.
You watch…this jury will never be able to get all twelve to convict. Ain’t happening.
Mark, well stated, and perceptive assessment of the jury. Always tough to predict how a group of people will behave, as a group, though…especially after they receive what will probably be very restrictive instructions from the judge. For example, “As sympathetic as you may be for the defendant, you must not let that interfere with your obligation to enforce the law as stated…”
I hope you are right mark.
Ken
I see.
I have no understanding of why you construed my comment to think I was saying Sylvia isn’t entitled her opinion, nor that I am instead inferring my opinion. Bill Marler gave space on his website for David Gumpert to publish his observations. I interpret that as a beneficient act, something that would make me chalk one up on the positive side for Bill Marler. I don’t think any reporter or activist can take it for granted that they will be allowed to publish a feature article on someone else’s website, especially when they’ve previously taken adversarial positions against the website owner.
I don’t think you see. I think you substituted your own interpretation for the point I was trying to make.