I’ve seen the video at least twice now, the one of Wisconsin food inspector Cathy Anderson throwing blue dye into a vat containing hundreds of gallons of Vernon Hershberger’s raw milk that fateful second day of June, 2010. But each time, as the ribbon of blue spreads out in the milk, it feels like another kick in the gut. 

I say I’ve seen it at least twice, since it’s possible it was shown more often over the last three days. Keeping it all straight among the assortment of videos and documents and arguments that have occurred over this week’s long days of the Hershberger criminal misdemeanor trial is difficult. But the blue dye in the milk is one of those situations that feels bad enough when you read about it, and feels shockingly horrible when you actually see it. And Jackie Owens, the colleague of Cathy Anderson, also of the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP), couldn’t even say what was in the blue dye when she was questioned about it. She thought it had food coloring, but wasn’t sure if there were more harmful items. 

It’s interesting how we leave an amazingly intense proceeding like the Hershberger trial with a few vivid memories, like the blue-dye video. I’m going to put that aside and instead recap two key developments in the trial over the last day-and-a-half. Keep in mind that, three days into the trial, the prosecution hasn’t yet completed its case. Once it is done, likely tomorrow morning, it will then be up to the defense to make its case on behalf of Hershberger. 

Development 1: the prosecution’s attempt to paint Hershberger’s farm as a big-time retail operation. The star witness over the last day-plus has been Jackie Owens, the senior inspector in DATCP’s Bureau of Food Safety and Inspections. She spent some hours yesterday identifying photos of packaged and labeled food products available at Hershberger’s Grazin Acres Farm, presumably to get across the idea of retailing.

Today, that effort to portray the farm as a retailer moved into overdrive, as the prosecution brought out receipts of food club members’ orders, records of which had been confiscated when DATCP raided the farm June 2, 2010, and again in August that year. There were orders of $100 to $300 for butter, kefir, coconut oil, and other such products, being shipped around Wisconsin and other parts of the country. Owens read from the receipts, about $15 handling charges, and $22 Fedex charges. She also pointed out credit card orders. 

The revelations also included information about Hershberger’s revenues for several months, which ranged between $20,000 and $25,000. The fact that there was no effort to suggest he had expenses that dramatically offset profits indicated that the real purpose of the exercise was to portray Hershberger as selling to rich folks, and becoming prosperous himself in the process. 

Development 2: the defense’s attempt to portray the prosecution of Hershberger as highly vindictive. Defense attorney Glenn Reynolds suggested in his cross examination of Owens that she eagerly sought out criminal charges against Hershberger, when there might have been opportunities for discussion and negotiation.  He pointed out that letters and documents were delivered by armed sheriff’s deputies rather than via mail. “Is this a way to establish rapor and obtain information from someone?”

He also questioned Owens about her apparent refusal to engage with members of Hershberger’s food club who were writing and calling her after the major raid carried out June 2, 2010. There was this exchange at one point: 

Reynolds: “Okay, you haven’t had much of a dialog with Mr. Hershberger.”

Owens: “My first time trying, during the inspection of June 2, 2010, we asked some questions and he didn’t want to work with us.”

Reynolds: “You feel you did everything possible?”

Owens: “Yes.”

Reynolds: “Do you know why you didn’t get any response? Could it have been you sent your document requests with armed sheriffs?…Might you have spoken with leaseholders?”

Owens: “I don’t know who they are.”

Reynolds: “You obtained lots of documents. You had names and addresses. You didn’t contact one of them, did you? Now that you had membership identify lists, wouldn’t that have been a good source for you to determine whether they were owners, leaseholers?… Did you see any need to contact any of them to determine was the situation was?”

Owens: “I did not.”

This event is like a prize fight, and the fighters don’t care for each other. On the subject of the blue dye in the milk, Reynolds prodded Owens: “That milk could have been used by the Hershberger family, couldn’t it,” he accused, noting that holding orders on food are supposed to exempt food for personal use. 

“It was milk for distribution,” replied Owens. 

Near the end of the day, Reynolds blurted out to Owens: “Your objective was to stop Mr. Hershberger cold, so he would go bankrupt and go out of business.” The prosecution objected, it was sustained, and Reynolds withdrew the question.

As I said, this is like a prize fight, and we’re deep into the middle rounds. Anything can happen. 

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Hot off the press, first copies of my new book  (“Life, Liberty, and the Pursuit of Food Rights”) are due in Baraboo tomorrow afternoon. Also due in is Joel Salatin, who wrote the foreword, and will be speaking. All proceeds from book sales tomorrow go to Vernon Hershberger’s defense.