For years in the Jim Crow South (after the Civil War), prosecutors having difficulty finding the culprit in a theft or even a violent crime like a sexual assault, always had a fallback position: They could encourage the victim to accuse a black, usually a young black man, of the crime. “Now, didn’t you see that N___ nosing around your yard a few weeks ago?….Was it this N_____that made eyes at you before your encounter?…I know he’s worked for your family, never had any problem, but you never know when one of these people is going to do something crazy…” 

Something like Jim Crow justice may be unfolding in the unlikeliest of places–proper and upstanding Minnesota, where, in rural Stearns County, the local prosecutor is preparing for the state’s second criminal misdemeanor trial of farmer Alvin Schlangen. The farmer was acquitted of all criminal charges associated with illegally selling raw milk and other foods last September in a three-day jury trial in Minneapolis. (The Minnesota judges don’t take too seriously the Constitutionally-prohibited practice of double jeopardy–trying a man twice for the same offenses–which is why a second trial is unfolding.) 

A couple weeks after that trial, I interviewed the jury foreman, who told me that a big reason the jury acquitted Schlangen was because no one had become ill from the farmer’s raw milk. “No one was injured,” he said. “If anyone had gotten sick, that would have weighed on me.” 

Indeed, there has never been even the slightest suggestion that anyone has ever become ill from Schlangen’s milk, or any food, by anyone, either before or during that first trial. Now, in preparation for a second trial being held in Schlangen’s home county, memories seem to have changed, and the state seems to have its N_____. In documentation the prosecution made available last week to Schlangen’s defense lawyer, Nathan Hansen, the narrative of a “Supplemental Report” by Stearns County prosecuting attorney Mickey Berg begins this way: 

“On June 10, 2013, Assistant Stearns County Attorney William MacPhail, Paralegal Jill Weber, and I met with Jim Roettger, John Mitterholzer and Levi Muhl [all of the Minnesota Department of Agriculture] to discuss their role as witnesses in the above-named case. They provided the following information: 

“John Mitterholzer stated that his involvement with the defendant began when the Minnesota Department of Health received a report that an individual had become ill after ingesting Campylobacter bacteria. The report indicated a number of possible sources including daily consumption of unpasteurized milk from ‘Schlangen Family Farms.’ John stated that this call came into what is known as ‘the daily pool,’ which is set up to take calls regarding food complaints. John stated that the Minnesota Department of Health notified the Minnesota Department of Agriculture to follow up on by going out and doing a safety investigation on the defendant. John stated that this complaint to the Minnesota Department of Health was what initiated the investigation into the defendant and his activities.” 

Schlangen’s attorney, Hansen, is stunned with this potential blockbuster revelation, especially given that it never came up in all the hundreds of pages of documentation and under-oath questioning of MDA officials during the previous Schlangen trial. 

A copy of the MN Department of Health questionnaire on the individual who supposedly became ill is included in the “Supplemental Report”, and I have included the three-page form on the left. As you can see, the name of the individual who supposedly became sick is redacted. It isn’t clear that individual will testify during the upcoming trial. 

Also puzzling about the disclosure about a potential raw milk illness is the fact that the Stearns County prosecutor dropped the single charge that Schlangen illegally sold raw milk, at the same time Hansen was presented with the report. (He is charged with selling food without a license, failing to keep eggs at required temperatures, selling prohibited foods like custom-slaughtered meat, and violating an MDA embargo on selling food.) Presumably, the report of illness was kept in the report in case the state wants to use it to try to back up allegations from the MDA that Schlangen was running an unsanitary facility for storage of eggs–an allegation in the first trial that the jury didn’t find persuasive. 

So during the first trial, when Schlangen was facing a charge of illegally selling raw milk, and the indication of an illness would have carried the greatest weight, the supposed illness never got mentioned. Now, during Schlangen’s second trial, and the third major food rights trial within the last year, following on Vernon Hershberger’s acquittal by a Wisconsin jury on all licensing and dairy charges last month, the illness suddenly reappears. 

Hansen thinks he knows why. “This prosecutor looked at the other trials [Schlangen 1 and Hershberger] and said, ‘I want to win this one.’ “ 

Hansen plans to challenge inclusion of the evidence in the upcoming Schlangen trial, due to start in August. “It has every evidentiary problem you can think of…authentication, foundation hearsay…Sixth Amendment right to confront your accuser…” 

“It doesn’t pass the smell test,” adds Hansen in describing the allegation of illness, and he’s not speaking in jest about the smell test. 

There is also no indication in the Supplemental Report that the MDA did what investigators would normally do if they suspected a particular source of raw milk was creating illness–test the milk, from Schlangen’s farm and from anything the victim had left over, and try to find evidence of the presence of campylobacter. Maybe that is because the patient noted on the questionnaire that he had also eaten chicken, both at home and in a restaurant, not to mention meatballs and spaghetti at a Spaghetti Factory and a sausage and egg muffin at McDonald’s. There were too many variables, and the person is a regular junk-food-junkie to boot. 

My guess is that this supposed illness did come up in the preparations for the first trial, but that the prosecutor in that case quickly determined it was so speculative, so problematic, that she told the MDA guys to stuff it. But desperation does funny things to people, even prosecutors…or especially prosecutors, just like it did in the Jim Crow South.

I’m not the first person to find a comparison between what’s happening in Minnesota and what used to happen in the Jim Crow South. In this video showing MDA inspector Jim Roettger confiscating raw milk being delivered by the brother of farmer Michael Hartmann, a member of the crowd can be heard shouting at one point at the inspector: “Maybe down south you can get away with this, but not in progressive Minnesota.” 

Amazingly, they may be able to get away with railroading an innocent man in “progressive Minnesota.” The State is facing an 0 and 2 count in Stearns County. Three strikes and you’re out, and the State is determined to do anything to avoid striking out. 


I have to believe the suggestions made following my previous post that Mary McGonigle Martin and Mark McAfee are CIA agents were made in jest. Knowing both these individuals, I could chuckle. Neither would make a good CIA agent–they talk too much. 

The whole thing would be even funnier, if it wasn’t for the reality that secret agents have entrapped farmers and joined food clubs to try to incriminate farmers. It happened at Rawesome Food Club in California and at Grassfed on the Hill in Maryland, as I detail in Life, Liberty, and the Pursuit of Food Rights. In Minnesota, Schlangen’s lawyer, Hansen, thinks the supposed illness may have come from “a mole” feeding information to regulators about Schlangen’s food club. There have been other examples as well.

When I see such half-serious accusations about McGonigle-Martin and McAfee, I realize the infiltrations are having some of their desired effects: to make food rights supporters suspicious of each other, or of individuals who are simply being outspoken advocates. No, the infiltrators are quiet. You won’t find them signing posts under their real names on this blog.