WI DATCP Shows Aggressive, and Desperate, Approach in Hershberger Pre-Trial Maneuvering–Update: State Denied


Vernon Hershberger sitting in a secure area awaiting arraignment last January.Six weeks in advance of  the criminal trial of Wisconsin farmer Vernon Hershberger, pre-trial maneuvering moved into high gear Tuesday. 

Some seven lawyers gathered  in the Baraboo courtroom of Sauk County Judge Guy Reynolds, and for three hours argued about the highly unusual effort of Wisconsin prosecutors to subpoena three local journalists to testify for the prosecution. Three of those lawyers were from the state–two from the office of the Wisconsin Attorney General and one from the Department of Agriculture, Trade and Consumer Protection (DATCP). Two others were representing Hershberger, and two were representing the journalists. 

The prosecution effort is unusual because journalists  are rarely called to testify in criminal cases, since they invariably resist and even refuse to testify altogether. So prosecutors and defense lawyers generally avoid calling journalists, unless they are seen to have access to confidential sources and information that could be pivotal to the outcome of a very serious case, like a murder case or a case involving national security.

Journalists relying on confidential sources are especially loathe to testify, since they don’t want to break promises to sources to keep their identities secret. (For an eloquent explanation of the journalistic tradition of reporters refusing to testify, here is a New York Times editorial written when one of its reporters, Judith Miller, was sent to jail for refusing to testify before a grand jury in a national security case.) But even when they don’t possess confidential information, journalists don’t want to alienate sources of any kind, nor do they want to be seen as government lackeys, by testifying in criminal proceedings.

Because of the protections afforded journalists under the U.S. Constitution’s First Amendment and the resulting messiness of getting them to testify, some 40 states, including Wisconsin, have passed so-called “shield” laws to limit the circumstances under which journalists can be called to testify in criminal proceedings. What makes the effort of Wisconsin prosecutors noteworthy is that none of  the journalists sought appears to possess any confidential information. 

A lawyer for one of the journalists, working for a Wisconsin NBC television station, argued that the subpoena shouldn’t be issued since the reporter’s “testimony is not relevant, let  alone ‘highly relevant,’ because he did not observe the purported crime.” The lawyer, Drew Shenkman, with a Washington, DC, firm, added,  “Moreover, the State has failed  to show that  the  information  sought ‘is not  obtainable from  any alternative source,’…as the continued sale of  raw milk products can be shown through countless other sources.” 

Shenkman said there were “many untapped alternative sources…available to the state…” including members of Hershberger’s private food club and current  and former employees. 

One of the Wisconsin prosecutors, Eric Defort, rebutted that the reporter  with  the NBC affiliate could have important testimony about  a key  event  in  the Hershberger case–his breaking of the DATCP seals, placed on coolers June 2, 2010, and intended  to prevent the  farmer from distributing products to his club members. Since  the  reporter  was at  the  farm on June 3,  2010, filming  a  report, his “observation that  they  were broken on June 3, 2010…is highly  relevant as to when the seals were broken by Mr. Hershberger…” 

The reality  is that there is no disagreement about  what  happened with  the seals. Hershberger has admitted any number of times that he broke the seals. Which begs  the  question: Why is DATCP making a major issue out  of forcing journalists  to testify for  the prosecution,  in  defiance of all  convention? 

Well, here’s some speculation from one journalist who would be very put off as well if he were called to testify. Maybe  the prosecution  is having  difficulty finding members of Hershberger’s  club  who would  be  sympathetic to the  prosecution cause and is going after the Wisconsin reporters out of desperation.

Or possibly  the state  wants  to  intimidate journalists from  covering  other cases  involving small  farmers being bullied  by the  state. Journalists  don’t want that  kind of  hassle, not to mention  the expense  of hiring lawyers.

Or maybe the state is simply trying to show how seriously it takes this case, that it is unwilling to leave any stone unturned in its long-term mission to convict a farmer of supplying raw milk and other food to members of a private food club.

Desperation, intimidation, aggressiveness–none of it makes  much  difference. The  state isn’t portraying an image of confidence. Just the opposite. The judge  has  promised  to  rule Thursday.

UPDATE: “The motion is denied at this time,” Judge Guy Reynolds ruled late Thursday afternoon.

He added, “The State has not shown and I am not persuaded that the information is not obtainable from other sources”.

The judge left open the possibility that he could re-visit the matter as the trial opens, but given his comments today, it doesn’t seem likely that the prosecution would want to irritate the judge any further.

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5 Comments on "WI DATCP Shows Aggressive, and Desperate, Approach in Hershberger Pre-Trial Maneuvering–Update: State Denied"

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November 29, 2012 10:41 am

There are those who see themselves as citizen-journalists and those who see themselves as system journalists. (All have at least a leaning one way or the other.) Evidently the prosecution hopes these are the latter, and will cooperate on the stand. I’m sure it’s also an attempt to terrorize (“intimidate”) the former.

This is an example of why the Community Food movement needs far more customers to become journalists of the movement. Not just to better publicize it, but also for greater solidarity in the face of the corporate system’s assault. (Although by now I wonder if the government’s not doing more to publicize real milk than to effectively demonize it.)

Shana Milkie
November 29, 2012 2:48 pm

What? The evidence this journalist can offer is to confirm the time of day that the seals were broken? And it will take a subpoena to provide this evidence? I sure hope the judge sees through this baloney. The state of Wisconsin’s action surely does smack of desperation. Mr. Hershberger, I hope you are hanging in there! Your bravery benefits farmers and food eaters everywhere in this country.

Steve Bemis
November 29, 2012 3:01 pm

Pure bullying using the superior resources of the state. So much for conservative “limited” government.

Traditional Goats
November 29, 2012 4:54 pm

Wisconsin seems to be a bit overboard with attacking these people. Here is another farmer that no one seems to have picked up on yet and I have no idea how everything has turned out for him. No real news or such–it is because he isn’t into dairy we are leaving him behind? :-)





For what it is worth, I don’t think that he should need a license to help process an animal that was owned by someone else and was going to be used for their personal use. I am all for licensing and inspecting a butcher that is cutting up meat for resale. I have seen too many (just like milk) that I would not have kill and process a chicken for me while others can do a wonderful job and probably better than the local licensed butcher.

Anyway, there seems to be a lot more happening in Wisconsin than we are being told about! They seem to be quite busy with shutting down every little operation from butchers to milk.

Shana Milkie
November 30, 2012 2:14 pm

Here’s a judge who’s showing some sense. I’m glad to hear about the denied motion.