Fully Informed Jury Association

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Function of Juries & Jury Nullification | 19 Jun 2013

-Information Withheld from Hershberger Jury Might Have Resulted in Fourth Acquittal


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 recent raw milk case of Vernon Hershberger ended in a very curious verdict. Hershberger was acquitted of three counts of operating retail, dairy, and processing facilities without licenses, but was convicted of one count of violating a hold order that resulted from the activities of which he was acquitted. How could a jury convict a man of violating a hold order levied against him for violations of which that same jury agreed he was not guilty? Juror Michele Bollfrass-Hopp explains how information relevant to the jury’s decision was withheld from jurors by the judge in the case.

The Inside Story of a “Juror Revolt” in Amish Raw Milk Trial

The criminal misdemeanor trial of Wisconsin raw milk farmer Vernon Hershberger that drew national media attention ended more than two weeks ago, but Michele Bollfrass-Hopp, one of the jurors in the case, has been unable to get it out of her mind.

Hershberger was charged with four counts: three counts of not having appropriate licenses, and one count of violating a holding order. The jurors voted to acquit Hershberger of the licensing charges, but since Hershberger admitted during the trial to violating the holding order (which was issued to prevent him from distributing, or even moving, his products) they convicted him on the count. What they didn’t know was that the reason for issuing the holding order was because of Hershberger’s failure to have retail and dairy permits the DATCP said were required — the very charges they acquitted him of.

The members of the Hershberger jury were only allowed by the judge to see a redacted version of the hold order issued to Hershberger during a search of his farm and store by state agriculture and public health authorities on June 2, 2010; blotted out were the causes for the hold order.

If they had been able to see the whole document, some members of the jury believe they would have acquitted on all four counts.

Several jurors in this case were so upset at being misled into a Guilty verdict that they wrote letters to the judge in support of Vernon Hershberger and opposing harsh sentencing. Bollfrass-Hopp and three other jurors even attended the sentencing hearing in support of Hershberger.

The jurors had bonded personally and over the two weeks since the trial and become increasingly upset about the single guilty verdict they rendered. Bollfrass-Hopp said her letter was part of “a juror revolt” that had built up in the days following their decision, arrived at about 1 a.m. on May 25, after about four hours of deliberation. “The holding order was applied in a way that wasn’t right,” she said.

The jury foreman, Paul Freitag, was more forceful. An installer for a cable television company, Freitag said he decided to leave the letter writing to Bollfrass-Hopp because he feared his own letter might be harsher than hers, and seen as “criticizing the judge too much.” Freitag said he was upset that jurors “didn’t have the truth” and that “if we could have ruled on whether that was a legitimate hold order, we would probably have found him innocent.”

The single conviction in the case reportedly came about after bargaining among the jurors during deliberations:

As most juries do, the jurors of the Hershberger trial compromised. Freitag wanted to acquit on all counts; Robb Porubsky, a plant manager at a metal fabric company, was holding out for conviction on a charge that would penalize Hershberger for not having a retail license. Eventually Porubsky was persuaded to abandon his position for conviction on the retail license charge (“Hershberger was in a gray area,” Porubsky decided) in exchange for Freitag giving up his lone vote for acquittal on the hold order.

We remind everyone that a hung jury is much better for a defendant who has harmed nobody than a conviction. Jurors are NOT required to come to a unanimous verdict on any count, and jurors who believe a defendant should not be convicted on a particular count should maintain their Not Guilty verdict even in the face of pressure from other jurors. A juror who is not convinced that she or he has all the information needed to render a just verdict of Guilty can and should vote Not Guilty.

Sentencing in the Vernon Hershberger raw milk jury nullification case resulted in a $1000 fine, plus an additional $513 in court costs. He had been at risk for a maximum sentence of a year in jail plus a $10,000 fine. Even in light of several jurors’ making clear that they regretted their verdict, the judge in the case denied a motion for a new trial on the hold order charge. It is not yet clear whether an appeal on that charge will be filed by the defendant.

Dairy farmer Vernon Hershberger receives $1,000 fine in raw milk case

A Sauk County dairy farmer who has gained national fame in the raw-milk debate avoided jail time and probation in his sentencing Thursday for a crime stemming from a raid on his Grazin’ Acres farm.

It was the first case of its kind in Wisconsin, according to state officials who prosecuted Vernon Hershberger, of Loganville, for not having licenses for his dairy operations and for violating a hold order placed on products in his food store, which he said was a private buyers club.

Sauk County Circuit Judge Guy Reynolds ordered Hershberger to pay a $1,000 fine, plus $513 in court costs, for the hold-order violation. He had faced a maximum penalty of up to a year in jail and a $10,000 fine.