The assortment of Farm-to-Consumer Legal Defense Fund t-shirts Alvin Schlangen wore to his trial may have been attention getting, but they weren't major factors in swaying the jury hearing his case. (Photo by Kathryn Niflis Johnson)What were the key factors that swayed the Minnesota jury to acquit food club operator and farmer Alvin Schlangen three weeks ago? 

Schlangen’s lawyer, Nathan Hansen, told me he thought the fact that Minnesota Department of Agriculture investigators in their courtroom testimony were inconsistent in defining “occasional” raw milk sales may have swayed the situation. One investigator said three or more purchases during any month and another said six purchases a month exceeded the bounds of “occasional”. 

The  MDA in its defiant statement issued immediately after  the acquittals were announced September 20 suggested that the jurors agonized and could have gone either way except for some unknown arbitrary issue or another–” the fact that the jurors deliberated for as long as they did shows that they found the decision a difficult one to make.” 

In fact, neither assessment is correct, according to the jury foreman, Eric Hemingway. No, the disagreement on how “occasional” was defined (the Minnesota statute limits dairies to “occasional” sales of raw milk) “wasn’t really up there” as an issue  in jury deliberations, Hemingway told me in an exclusive interview. 

And, contrary to the MDA assessment, the reason the  jury took nearly an entire day (spread over parts  of two days) was because the judge had  provided highly detailed instructions for determining guilt “beyond  a reasonable doubt, and  we tried to  be very methodical in going through his instructions.” 

In the end, there were two key factors in the decision to acquit, Hemingway explained. First, the fact that no one got sick from Schlangen’s food was very  important. One of the three misdemeanor charges accused Schlangen of providing “adulterated or misbranded” food, and  the absence of illnesses suggested no adulteration. According to Hemingway, a Minneapolis-area investment adviser, “No one was injured…If anyone had gotten sick,  that would have weighed on me.” 

A second important  factor was the notion that Schlangen wasn’t  selling, but rather distributing food he obtained  on behalf of members. “He  was just connecting  up people who wanted  this food through his club,” according to Hemingway. “People went in with their eyes wide open.” And Schlangen “was a very credible witness.” 

Hemingway indicated that there never was a lot of disagreement among the six-person jury of three men  and three women. “Different people had different ways of explaining things to the others. Some  played  devil’s advocate, some did what-ifs.” In the end, though, there wasn’t a  situation  where one or two jurors dissented and had to be  convinced by the others, he said. 

Hemingway tole me that he knew little about  the struggle over  food rights before he was assigned to the jury, and that food choices aren’t a huge deal in his family. He knew vaguely that more people were  drinking raw milk, “but I’ve never had raw milk, I didn’t grow up  on a farm.” He said when it comes to food in his family, “My wife does  the  shopping  and I  go to the refrigerator.” She shops in area supermarkets.

Nor were other jurors raw milk drinkers. They were a diverse group, including a mechanic, a molecular  genetic scientist, a corporate district manager, a marketing consultant, and technical solutions architect, along with Hemingway, the investment  adviser. 

Hemingway said his focus was on “being  impartial. We were very deliberate and  thorough.” In  the end, though, “The state failed  to make its case…You have to look at  the law. You  can’t look at your own  beliefs of  what the  law should  be…He (Schlangen)  was not in violation of  the law.” 

The law wasn’t very clear in a number of areas, he noted. For example, the state charge that Schlangen was selling food without a retail license fell short in part because  the law isn’t specific in requiring food licenses for distributing food privately. 

The message from the six jurors–people without a vested interest in the outcome–seemed to be that so long as private food distribution isn’t making people sick, the government should steer clear. This is  a much different view from that of judges who have ruled in food rights cases up until now. 

The Schlangen case is looking  more significant each day, and it’s only been three weeks since it came  through.