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Jury Nullification | 25 May 2013

-Jury Find Hershberger Not Guilty on 3 Counts, Guilty on 1 in Raw Milk Case

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By Unisouth (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons

By Unisouth (Own work) [GFDL (http://www.gnu.org/copyleft/fdl.html) or CC-BY-3.0 (http://creativecommons.org/licenses/by/3.0)], via Wikimedia Commons

The trial of farmer Vernon Hershberger of Wisconsin on 4 victimless counts related to mutually consensual distribution of raw milk to adults ran longer than expected, wrapping up early this morning. Hershberger, who operated a private club for people who wanted raw milk, was found Not Guilty on charges of operating an unlicensed retail store that sold raw milk and other products, and operating a dairy farm and dairy processing facility without licenses.

Dairy farmer acquitted on three of four charges

Dairy farmer Vernon Hershberger was acquitted on three of four criminal charges early Saturday morning in a trial that’s drawn national attention from supporters of the raw, unpasteurized milk movement.

Jurors in Sauk County District Court deliberated about four hours, until nearly 1 a.m. Saturday, before returning a verdict of guilty on one charge of violating a holding order placed on products on the Hershberger farm, following a raid on the farm in the summer of 2010.

The defense attorney asked jurors to use “common sense” and to question why the state would take such a heavy-handed approach in prosecuting Hershberger.

“This is as close to Prohibition as anything I have ever seen, but this time it’s milk and an Amish farmer, rather than liquor and gangsters,” Reynolds said.

Hershberger was found Guilty of violating a holding order placed on products from his farm-a situation that he was only put in when the government pursued him for the alleged violations of which the jury found him Not Guilty. Wisconsin’s Department of Agriculture, Trade and Consumer Protection raided his farm in June 2010, destroying 2,000 pounds of milk. Hershberger faces up to a year in jail and up to $10,000 fine for this charge.

After the acquittal of Minnesota farmer Alvin Schlangen on similarly victimless charges related to raw milk, food freedom supporters around the country have been focused on this trial to see if jury nullification would play a role.
Crowds of supporters to attend farmer’s raw-milk trial

Whether the case sets a legal precedent remains to be seen. But it’s significant for anyone interested in unpasteurized milk for health reasons, said Vince Hundt, a raw-milk advocate from Coon Valley.

People are getting the product directly from farms illegally, according to Hundt.

“The state is watching the law being steadily eroded. . . . If you are a thoughtful person and a reader these days, there’s just a blast of new information about food and health. And there’s a rapidly rising enthusiasm for food like unpasteurized milk,” he said.

The trial’s jury selection is scheduled to take place Monday with about 130 prospective jurors. There are about 70 people on the witness list, according to Hershberger’s supporters.

The farmer’s fate could hinge on a legal tactic called jury nullification, under which jurors vote their conscience in a case regardless of the facts and the law. Hershberger’s supporters have encouraged the tactic, although it’s generally known that judges and prosecutors reject it.

The holding order violation has so far been unique to the Hershberger case. The acquittals on the licensing charges add to the precedent being set by juries, starting with the Schlangen case, that they are not convicting raw milk providers on victimless licensing and branding types of violations. It is not clear why the jury chose to convict on the holding order violation in the Hershberger case, but trial reports do indicate that the judge kept a very tight rein on what the jury was permitted to hear, with the jury being escorted out of the courtroom more than once as information he did not want them to hear came up.

Hershberger Trial: List of Things You Can’t Say and Wear Gets Bigger

Let it be known that the jury has been frequently shoo-ed from the room anytime the judge felt that something truthful was about to be uttered on the stand. I bet they wondered what they were missing and why they weren’t allowed to hear it.

List of things struck from the trial – this stems from the judge’s agreement with prosecution before the trial began. He has sided with the State every step of the way:

Defense is not allowed to talk of defendant’s personal liberty – no talk of liberty allowed
The words “raw milk” are not allowed to be spoken during the trial.
No talk about safety or health reasons – this made it impossible for witnesses to talk about why they went to his farm.
According to Josh Tolley, talk of “natural foods” was not allowed.
No talk of whether there was criminal intent in not obtaining a license – Note: shouldn’t that right there be cause for jury nullification? Can’t talk about criminal intent – then where is the crime? Also, you can’t obtain a license for fresh food or memberships in Wisconsin!
Photos from the farm were argued against and called “irrelevant.”
No discussion of why his farm was initially raided in 2010.
No talk of herd shares or memberships – how did the witnesses discuss? Very carefully, see below
A woman wearing a “Got Initiative?” shirt was told to remove it before entering because it hinted at a reference. A picture of her appears on one of the Facebook updates I’m watching.
Mark McAffe was ordered to cover his shirt because it said: “get raw milk.”
A teenager wearing a “Raw Milk Me” button was asked to remove it before entering.

This is a huge embarrassment for the prosecution not to be able to secure convictions on most of the charges, even with the judge so blatantly tilting the playing field in favor of the prosecution. It will be interesting to see if any jurors come forward after the trial, once they find out from perusing the media from which they were isolated during the trial exactly how much information was withheld from them. The raw milk trials are widely seen by the food freedom community as political cases being brought abusively against peaceful people providing a desired good to willing and knowledgeable customers in order to support government protectionism for big dairies.

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