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.