The trial of raw milk farmer Vernon Hershberger, due to begin Jan. 7, has been delayed, likely for several months, because of the complexity of legal issues raised at today’s hearing in Baraboo, WI.
Even before today, the legal issues raised by both the prosecution (the Wisconsin Attorney General’s office on behalf of the WI Dept of Agriculture, Trade and Consumer Protection) and defense lawyers for Hershberger have been enough to spin the heads of even the most grizzled legal mavens. There were such matters as jury nullification, legal intent, attempts to block witnesses from testifying, differences in how to define “consumers,” the extent of DATCP’s authority, and any number of other issues…and this all before the trial began.
At today’s (Friday) hearing, the issue was freedom and protection of religion, as guaranteed by the U.S. Constitution’s First Amendment.
That issue came up when Judge Guy Reynolds sided with the state in agreeing, at the prosecution’s request, to block retired pathologist Ted Beals from testifying on behalf of Hershberger. Prosecutors argued that Beals’ testimony was irrelevant, because the case was about licenses, not health and sanitation issues. Defense lawyer Elizabeth Rich countered that the DATCP “Hold Order” implemented by DATCP in June 2010 via tags and tape affixed to Hershberger’s farm store refrigerators, included findings that the products subject to the Order were misbranded or adulterated and hazardous to health. She further argued that DATCP’s subsequent Summary Special Order backing up the Hold Order said raw milk was inherently dangerous.
Rich argued that Hershberger had a right to challenge those findings in his criminal trial. The judge asked the prosecutors whether Hershberger had had an opportunity to challenge the findings earlier. A prosecutor said the Summary Special Order included a recitation of appeal rights–Hershberger could have filed an administrative appeal of the Order, but he did not. Based on that, the judge ruled that Beals’ testimony could not come in.
Rich said that, to the extent the judge’s ruling was based on Hershberger ‘s failure to file the administrative appeal of the orders, it violated his First Amendment rights, because he has a sincerely held religious belief that prevents him from being the aggressor in any legal proceedings.
Here is how Hershberger explained it late Friday in a note to supporters: “I have a sincerely held religious belief that I would not take anyone to court. Therefore the only options I had when the holding order was put in place was to take it to an Administrative Court or to disregard it. Being that we don’t believe in taking someone to Court our only option was to disregard the Holding Order and face the consequences.”
Hershberger’s religious beliefs stem from his upbringing in an Amish community. The Amish generally avoid taking legal action, and even in some cases from hiring lawyers to defend themselves when they are prosecuted.
Elizabeth Rich sought the judge’s permission to file a brief in regards to Hershberger’s First Amendment rights, to convince him that Beals should be allowed to testify. The State claimed it didn’t have time for something like that over the holidays and with the trial so close. The Judge said he would give Rich time to file the brief, and the prosecution time to respond, necessitating a delay in the trial. There will be a conference call Jan. 4 to schedule a new trial date.
Mind you, this legal wrangling is all about whether one defense witness should be allowed to testify, if you want an insight into how aggressively the state is fighting this case. In the meantime, today’s events are just another reason I advise people planning to fly to a trial to purchase a refundable ticket.
**
A Michigan farm family won a legal victory against their township, which had tried to shut the farm down over alleged zoning violations.
A county judge backed the application of Michigan’s Right to Farm Act as a defense when the family farm was sued by Forsyth Township for having approximately 150 chickens and 8 sheep on their 6.5 acres; the Buchlers sell eggs and wool produced on the farm. Because the area where they farm is not zoned for agriculture, the township sought an injunction to halt the farming activities. The judge held that the Right to Farm Act controlled over the township zoning ordinance.
The Farm-to-Consumer Legal Defense Fund, which provided backing to farm owners Randy and Libby
Buchler of Shady Grove Farm, has the complete story.
Contrast also the Buchler farm with the articles that D Smith linked in David’s previous post, which discuss (always, of course, through the lens of a microscope) the safety and value of food sanitizing agents and hyper-processing. How far from our roots have we come! The new normal is to eat packaged, inert substances we cannot even identify while distrusting plants and animals living on the ground.
Imagine now the Buchler’s neighborhood with a few micro dairies dotted here and there. The cows would be doing their thing, sampling the microbiologic environment and adjusting their milk to it, partnering with the locals to improve health and strengthen immunity. Along with fresh fruits and vegetables, eggs, maybe a local butcher, baker, cheese monger, you have the foundation for a healthy community.
We have done everything we can to build agriculture out of our residential landscapes, in part through the use of misguided zoning laws. Michigan’s Right To Farm Act (thanks for bring this up David–I, for one, was unaware of it) sounds to me like a practical antidote to such folly. Safety, health, and joy in diversity!
http://datcp.wi.gov/uploads/About/pdf/Food_Regulation_Wisconsin.pdf
The state’s lawyers hates the fact that a jury will be deciding this case, so what they are trying to do is “stack the deck” by limiting the witnesses the jury will hear and ramming through instructions that narrow its decision-making latitude, and other similar actions. The judge is sympathetic to the state because they, after all, draw their paychecks from the same source. Hershberger’s lawyer, Elizabeth Rich, is being forced into a position of challenging each such effort to prevent the state from totally corrupting the process by biasing the jury against Hershberger.
Technically, the trial has been delayed to allow the two sides to present written arguments about whether one particular witness, out of 70, should be allowed to testify. The fact that DATCP-WI AG would care enough to legally challenge this one witness is indicative of how seriously they take this entire case. Part of their intent, of course, is to try to wear Vernon Hershberger down. Part of their intent, as I said in another comment, is to stack the deck to limit the arguments the jury will hear. And part of their intent, I’m sure, is to muddy the waters so much that Hershberger supporters will become frustrated and lose interest.
War is usually a grubby disgusting affair, with those holding the power and advantage (DATCP-WI AG) forcing those they consider to be serious threats to scrape and claw for each potential advantage.
In 1990, the U.S. Congress passed the Fluid Milk Promotion Act to promote the sale of milk and to allow collective, producer financed, generic milk advertising.
The act stated that “fluid milk products are basic foods and are a primary source of required nutrients such as calcium, and otherwise are a valuable part of the human diet,” and mandated that “fluid milk products must be readily available and marketed efficiently to ensure that the people of the United States receive adequate nourishment.”
“(A) means market research limited to the support of advertising and promotion efforts, including
educational activities;
and
“(B) does not include research directed to product characteristics such as nutrients”
U.S. Department of Health and Human Services USPHS/FDA MILK ORDINANCE
FOREWORD
Of all foods, none surpasses milk as a single source of those dietary elements needed for the maintenance of proper health, especially in children and older citizens. For this reason, the USPHS has for many years promoted increased milk consumption.
The incidence of milk-borne illness in the United States has been sharply reduced. In 1938, milkborne outbreaks constituted twenty-five percent (25%) of all disease outbreaks due to infected foods and contaminated water. Our most recent information reveals that milk and fluid milk products continue to be associated with less than one percent (<1%) of such reported outbreaks.
In 1895, commercial pasteurizing machines for milk were introduced in the United States.
International Dairy Foods Association "Important Dates in Milk History," http://www.idfa.org (accessed Oct. 8, 2007)
“In 1899 Auguste Gaulin obtained a patent on his homogenizer. The patent consisted of a 3 piston pump in which product was forced through one or more hair like tubes under pressure.”
Dairy Heritage “History,” http://www.dairyheritage.com (accessed Oct. 8, 2007)
In 1913 The New York Times reported that a large typhoid epidemic in New York City was attributed to contaminated milk.
New York Times “Bad Milk Causes Typhoid,” Sep. 19, 1913
This also support my hypothesis that these outbreaks probably have nothing to do with food contamination.
Why aren’t they looking at all the chemicals/additives in the foods they feed the soldiers? Sysco (sp) supplies the military with foods. Also all the “vaccinations” they force on the soldiers are chemicals that do harm.
And I won’t even get started on the vaccination hoax except to say they are using the military personnel as guinea pigs even more than they are using babies and small children. Bill and Marilyn Gates should be so proud of their accomplishments in this regard. They’re criminals and should be in jail.
Unfortunately, sacrificing others to make money is not a new idea. Too bad about that, too, because it tends to keep the criminals on a higher plain – safe and out of harms way. Too bad about THAT, too.
The dedication shown by these operations was impressive.
The local news media has really enjoyed the OPDC-FTCLDF law suit ( CFR 1240.61 Citizens Petition appeal process requesting change to the interstate commerce of raw milk regs ) against the FDA. The media has carried this as a grand story of David verses Goliath. They have shown no mercy to the FDA in their coverage. Things….they are a changin…our first hearing on this matter is in Federal Court in March 2013. Gary Cox and Stephanie Rocha ( FTCLDF ) will be representing OPDC in this challenge. I can not wait!! This is for all the people across state lines.
Mark
People are so brain washed on all the “health” promoted BS that they “need” to be healthy, it makes me nauseous. Have a friend who is so happy to have gotten the chickenpox vacc. Can’t understand that as a nurse I am against vaccs. Said to read the ingredients then look up those ingredients and see what they do to your body, and I reminded the friend that many accumulate in your body. I asked why is there and Increasing incidence of shingles over the last 20 or so years, more than doubled since the early 90s? There was no answer…Maybe it is slow genocide? Population control.
On the Vernon Hershberger Case
Over the last year, I have written pages and pages, some containing two or more different arguments any one of which could exonerate Vernon Hershberger or convict DATCP(Wisconsin Department of Agriculture, Trade and Consumer Protection). The following are what I consider the most significant arguments:
You can’t convict a man who has done nothing wrong.
Even though it is Vernon that would do the time it is the people of Wisconsin who in the end are the defendants in this case.
The people of Wisconsin want raw milk. In 2010, to make raw milk more readily available, the Wisconsin State Senate passed SB 434 – 25 to 8 and the State Assembly passed their version 60 to 35. The bill was later vetoed by then Gov. Jim Doyle, who has strong ties to the anti raw milk lobby. According to the CDC Wisconsin currently has 171,353 people drinking raw milk despite DATCP’s best efforts to prevent it. Wisconsin is one of only eleven states with such extreme anti milk regulators. I say anti-milk because the stuff DATCP promotes isn’t milk.
Food regulations are written for consumers not producers so you can’t convict a man who represents the consumer. Vernon Hershberger clearly represents the consumer and DATCP by law does not. DATCP’s board is required by law to be made up of food processors and at present has no consumer representation.
Our Wisconsin Attorney General, the District Attorney, DATCP, and this court all work for the people of Wisconsin. Under what premise does the court prosecute a man who obviously represents the Wisconsin consumer.
Our food regulations were not written to limit consumers food choices and were never intended to force consumers to buy what they don’t want. So I don’t believe our constitutional rights or DATCP’s authority need to be argued at this time.
As a laymen, I personally don’t believe Vernon has broken the letter or intent of the law, which would make discussing jury nullification and Vernon’s intent counterproductive.
Food safety is irrelevant(especially when no one is listening to the millions of healthy satisfied U.S. customers) and discussing it only serves to make DATCP the defendant. Having a judge apologize by saying he is only treating Vernon like anyone else makes the judge the defendant. In either case Vernon is exonerated.
There are other Judges who have said things like Their hands are tied. or citizens don’t have the inherent right to choose healthy food and to private food contracts with farmers. What does that say about this trial?
This isn’t the first time DATCP has been accused of ignoring consumer complaints.
DATCP’s action on incidental sales means they come to court with unclean hands. By illegally preventing the direct farm sales of raw milk DATCP has caused the problem that brings us to court today.
As committed as the state BOAH(Indiana Board of Animal Health) is to pasteurization, they admit the decision to authorize or not the sale of unpasteurized milk to consumers is ultimately a political decision.
The health of our children is too important to leave up to politicians.
The court should not give creditability to raw milk’s competitors. When consumers go directly to the farm to get raw milk for the health of their families and do their own inspections(which by the way, hold the farmer to a much higher standard than DATCP) they compete with other health food providers, distributors, processors, drug companies, DATCP, the CDC, and the entire health care industry. You can’t ask a medical doctor what food is health because he is not a nutritionist and is in the business of selling drugs, tests, and operations; a food processor sells processed food, and an inspector who doesn’t want to lose his job will say anything to keep it.
Vernon has the right to sell his product and no one has the right to stop us from buying it.
DATCP boasts that they control all aspects of our food from seed to plate and are proud to say they represent the dairy processing industry and not the people of Wisconsin.
Let me close by saying this: It is the court’s responsibility to protect the citizens of Wisconsin from DATCP and the food processors they represent and make sure consumers are not prevented from getting the foods they are looking for.
http://datcp.wi.gov/uploads/About/pdf/Food_Regulation_Wisconsin.pdf
Mike
Revision 5
This is not a hearing. It is a trial.
The filing deadline
under this subsection is waived if the department fails to give the
producer timely written notice of the filing deadline.
Did Vernon get a timely notice?
A person adversely affected by any of the following food safety
division actions may ask the department to hold a hearing on that
action
or what?
Is failure to request a hearing an ammunition of gilt?
Is DATCP admitting it’s gilt?
Is this even relevant? What were they looking for?
Vernon isn’t being charged with alteration or misbranding which seems to indicate that DATCP had no reason to be on Vernon’s farm. Do we really need to call a witness to prove this?
DATCP didn’t need an inspection to know he didn’t have permits.
Wisconsin has no standards for the direct farm sales of raw milk, so what would they be looking for if they did take any samples?
The state requires permits on behalf of the consumer. Vernon’s consumers are not asking for permits. DATCP is ignoring the very people they work for. It’s as simple as that.
The department should issue a written waiver
granting a variance from dairy farm standards under subch. III because it is obviously reasonable and necessary under the circumstances, and will not compromise the purpose served by the standard.