Prosecutors seeking to jail Vernon Hershberger for distributing his farm’s food privately to members of a food club betrayed their nervousness yesterday when they filed motions intended to limit the evidence the Wisconsin farmer can present to a jury.
The lawyers for the Wisconsin Attorney General filed a series of “Motions in Limine“, which are designed to shield a jury from hearing information that could be prejudicial to one side or the other. Most commonly, such motions are used by defendants in serious criminal trials who want to prevent the prosecution from presenting incriminating medical or financial information.
Ironically, in this case, the prosecution made such a request, seeking to prevent Hershberger from relying on the U.S. or Wisconsin constitutions, his religious beliefs, jury nullification, and anything that might arouse “sympathy.” The idea, of course, is to keep the jury focused only on the narrow technical matters of whether Hershberger distributed food without a retail license, operated a dairy farm as a milk producer without a license, operated a dairy plant without a license and violated a holding order by cutting the tapes shuttering his coolers by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP).
For example, the prosecutors asked that the judge “prohibit legal arguments such as the defendant’s claims regarding the court’s jurisdiction, his freedom of religion, and the 1st and 10th Amendment of the U.S. Constitution, which should all be decided by the court, not the jury.”
The prosecutors also asked the judge to “prohibit the defense from presenting ‘jury nullification’ arguments to the jury through opening statements, examination of witnesses or closing arguments.” Jury nullification allows juries to acquit criminal defendants who may be technically guilty, but who, the jury decides, do not deserve punishment.
And they asked that that the judge “prohibit any comment on the effect of a conviction for these offenses or the penalties for these offenses…as their only purpose is to appeal to a jury’s sympathy.” Thus, the jury can’t learn that throwing Hershberger into jail could cause him to lose the farm.
The prosecution’s motions were argued yesterday in a hearing in Baraboo, attended by about 80 supporters of Hershberger. The supporters had demonstrated outside the courthouse before the hearing. Hershberger has thus far avoided engaging a lawyer, and thus represented himself. The judge repeatedly encouraged Hershberger to engage a lawyer.
At the two-hour hearing before Judge Guy Reynolds, Hershberger argued that he should be allowed to argue, for example, that the U.S. Constitution’s First Amendment rights of free association might be interpreted to allow for private distribution via a buying club.
Nothing doing, said Judge Reynolds. He granted all the state’s motions. Thus, the jury at the trial scheduled for September 25 won’t be allowed to hear key arguments central to Hershberger’s case. Will Hershberger be able to convince a jury in the face of such restrictions? The jury is out.
(Thanks to Rosanne Lindsay for the photos.)