The State threw everything it had at this humble father of ten children, and when it was over, its guys in the dark suits scampered out of the courtroom in the darkness of the night after a jury of twelve ordinary Americans handed them their heads on a platter. After less than four hours of consideration, those Americans told the hot-shot lawyers that their thousands of pages of legal documents and computer forensic experts and five days of arguing had failed miserably to convince a single one of them that Hershberger should be required to have any of three retail and dairy licenses insisted upon by the State.
Hershberger had already heard through the grapevine that the jurors didn’t give a moment’s thought to going with the state’s charges. “They tried their best to set me free,” he said.
The jurors convicted Hershberger only of something he publicly admitted to before and during the trial — that he had cut the regulators’ tape placed on his coolers and food shelves on June 2, 2010 so as to keep his food from rotting and to feed his 200 food club members — in other words, violated a holding order.
I’ll return to the holding order matter. The State’s prosecutors rushed out of the courtroom because they knew they had lost on the stuff that mattered the most — their effort to equate Hershberger’s Grazin’ Acres member-only food club with a Sam’s Club or Costco box store membership operation. In making their crazy argument, they were trying to press a much larger point: that there is no such thing as privately-available food, that we are all under the thumb of “The Man” and his clipboards and forms…and orders.
Moreover, the State lost on this same issue for the second time within a year. The State lost on pretty much the same charges against Alvin Schlangen in Minnesota last September when another jury similarly took just a few hours to tell the regulators to go find other ways to get their jollies than to harass owners of small farms and their private customers.
Not only did the State lose for a second time in trying to convict farmers as criminals for selling food privately, but the State lost this time after its actors thought they had solved the “problems” of the Schlangen case. In the Schlangen case, the defense was allowed to discuss raw milk, the health benefits of good food, and food safety. The judge seemed fair. The prosecution was tough, but not hard as nails.
For Hershberger, the State insisted on having the entire case tilted in its favor, and it got nearly everything it wanted from a compliant and biased judge. No discussion of the health benefits of food. No discussion of raw milk. No discussion of food safety. No discussion of criminal intent. No discussion of the merits of the holding order. The State thought it could sanitize the courtroom and the messages relayed to the jury as well as it oversees the sanitizing of our nation’s food supply.
The only break the defense got was when the judge finally pushed back against the State’s demand that Hershberger not be allowed to have his food club members testify on his behalf–and the judge only relented when the defense challenged the judge publicly that he might as well end the trial before it began, with a conviction. Moreover, the prosecution this time wouldn’t just be tough, like the Minnesota prosecutor, but it would, indeed, be tough as nails.
As for that guilty verdict on the holding order, I have a feeling it looks more ominous than it is. Yes, Hershberger can be sentenced to a year in jail and fined $10,000, as well as have to reimburse the state for the value of the food that was freed up (backwards as that sounds).
As Amy Salberg, a member of the Hershberger legal team, explained after the verdict: “The order has no ongoing effect and his acknowledged breaking of the seals was a one-time thing. As it turns out, that holding order never should have been issued, based on the verdict of acquittal on the licensing violations. But, pre-trial motions by the State kept out any argument that the order was not valid. All the jury was told was that there was an order and it was violated.”
I have to believe that after the humiliating defeat the State has just endured, it won’t be foolish enough to try another vindictive act against this man (though I have to admit I didn’t think the State would try a number of foolish actions). No, I suspect Mark McAfee is correct that there will just be a minimal penalty, and a whispered admonishment to Hershberger, “Just get the hell out of here, and out of our lives.”
Essentially, Hershberger’s rag-tag legal team, put together by the Farm-to-Consumer Legal Defense Fund, won despite having one hand tied behind its collective back, and being pummeled by a seasoned and hardened opponent. Pretty amazing.
It won for a number of reasons. It won partly because its lead defense attorney, Glenn Reynolds (together with Elizabeth Rich, Amy Salberg, and Ajna Sharma-Wilson), took advantage of every possible opening, creatively bringing up forbidden subjects like food healthfulness and regulator bias.
It won because the local community united behind Hershberger, and people from around the country, led by theFarm Food Freedom Coalition and Liz Reitzig, took off from work and gathered in tiny Baraboo to lend support. Food and farming leaders like Joel Salatin, Mark Kastel, Mark McAfee, Max Kane, Aajonus Vonderplanitz, and Michael Badnarik showed up. Other farmers under attack like Mark Baker of Michigan and Alvin Schlangen of Minnesota showed up. The kind of media attention the trial received didn’t just happen by accident.
But the Hershberger team won also because Americans are, by and large, fair-minded people. Fourteen of them (twelve jurors and two alternates) from the local area, who knew little about the particulars of the case, decided that the State’s case didn’t make sense.
It’s only because our Bill of Rights, the Sixth Amendment of the Constitution, provides,”In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed…”
As Dave Milano suggested following my previous post, this struggle is far from over. The State (not just Wisconsin, but around the country) will likely try to alter its strategy, and avoid jury trials at all costs. And Hershberger as well worries: “How soon before they come and put a holding order on the food in your refrigerator?” Still and all, as ever more people learn the State’s true intentions, its plans for ever-more control over our food are slowly and surely eroding.
This article originally appeared on The Complete Patient on May 25, 2013.
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