Header graphic for print

Food Safety News

Breaking news for everyone's consumption

Jury Nullification May Be Only Hope for Wisconsin Raw Milk Farmer

We are going to have to wait a little longer to see if supporters of Wisconsin raw milk dairy farmer Vernon Hershberger can pull off a rarely used legal maneuver called jury nullification.

Sauk County Judge Guy Reynolds has moved the start of the Hershberger jury tail to Jan. 7, 2013. Evidence and witness lists are due Oct. 19, and the final pre-trial conference is scheduled for Dec. 14.

Hershberger is the Loganville farmer charged with 4 misdemeanor counts stemming from commercial production and sales of raw milk going back to June 2010.

The charges include operating a retail food establishment, farm, and dairy plant — all without licenses — and violating a hold order placed on his products after a raid conducted in June 2010.

Hershberger’s fate may well hinge on whether jurors selected for that trial are willing to go along with a strategy raised earlier this year on the Farm-To-Consumer Legal Defense Fund.

“A question that has been raised about the trial is: can the jury hearing the case legally engage in jury nullification and return a verdict of not guilty on the charges no matter what the facts and the law of the case are? The answer is yes,” wrote fund attorney Pete Kennedy.

It may take walking a fine line, however. According to Kennedy, Wisconsin law makes jury nullification a right of the jury, but “the defendant has no right to demand that the jury exercise its power of nullification.” In other words, its there as an option, you just cannot ask for it.

The June 2010 raid by the Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP) on Hershberger’s raw milk operation came just weeks after Gov. Jim Doyle vetoed a bill that would have allowed limited raw milk sales in the state.

Apparently confident that new law was coming, Hershberger had allowed his licenses to lapse during the previous January.

“If Hershberger is convicted of the charges against him, it could have a chilling effect on consumer access to raw milk for those who don’t own and board their own cows, Kennedy wrote.

“The farmer currently is leasing his cows to the Right to Choose Healthy Food Buyers Club.”

In 2011, Wisconsin’s Dane County Circuit Court ruled against a cow shares scheme involving Mark and Petra Zinniker.

“If the judge in the Hershberger case adopts DATCP’s position that the department even has jurisdiction over raw milk and other food products distributed through private contractual arrangements, jury nullification could be the only way for Hershberger to be acquitted,” Kennedy adds.

Since the Doyle veto, the Wisconsin Legislature has not passed any additional raw milk legislation. A task force appointed at Doyle’s request has come up with tough standards if raw milk ever becomes legal in Wisconsin.

Kennedy is an attorney from Sarasota, FL who serves on the Farm-To-Consumer Legal Defense Fund board of directors. He represents dairy farmers facing state enforcement actions in several states.

© Food Safety News
  • FF

    Jury nullification?
    Oh, heck, why not? I mean, raw milkies have long practiced science nullification, to say nothing of their rabid commitment to common sense nullification. I suppose just about any sensible thing can be nullified and made deliciously ridiculous if you will only stay true to blind faith. Isn’t that the very foundation of cult dynamics?
    Perhaps we are witnessing the beginning of a new construct of jurisprudence courtesy of the evil geniuses over at Weston A. Price Foundation and their legal arm, FTCLDF (Fall Through the Cracks Legal Defense Fund). Or, perhaps not.
    Maybe just another pathetic tortured rhetorical quasi-legal argument that will be summarily administered a well-deserved judicial thrashing in Wisconsin. One can only hope. After all, it’s a poor argument for a bad, risky idea in the first place and that should never be encouraged.
    Of course we do look forward, with eager anticipation, to the amusing ruse FTCLDF will fabricate to skewer their next expendable client (hey, it’s a free service from WAPF who always delivers full value quackery, even for legal representation). These guys are a laugh a minute, a regular barrel of barrister monkeys. Too bad innocent kids and elderly folks are made sick while the barrel rocks with daffy primate antics.
    One wonders how many greedy little raw milk producers like Hershberger must be sacrificed to appease the angry goddesses of raw milk and their uber-demanding urban foodie followers. Strange how the raw milk priests and philosophers are untouched — it is the farmer who is used, then left bent over and bleeding every time FTCLDF imagines a new legal experiment. Oh, and disease victims (whom the priests and priestesses never mention). Funny damned thing how donations to WAPF work to fatten priests and make public spectacles of sacrificial goats. But that’s activism and advocacy, no?

  • Clem

    Jury nullification is a desperate long-shot. Hershberg’s only practical hope is jury mystification. If you can’t dazzle ’em with brilliance, baffle ’em with BS. Now, that’s something FTCLDF has in abundance. How hard could it be to punk a jury made up of people who proudly wear big styrofoam cheese hats in public? Mystification is definitely the best tactical approach in this case.

  • thank you, commentator FF, for providing another classic example of my old man’s dictum “nothing is so useless it can’t at least be used as a bad example” = your rant evidences how opponents of the Campaign for REAL MILK are gnawing their tongues in frustration, as millions of people, daily, participate in the genuinely free market ( merely one of the core values of America ) to get what we want regardless of the stupidity of the nanny-state
    this contest is not truly about “health” … we proved that long ago. It’s about licencing / who gets the spoils of a new source of wealth.

  • Gordon Watson, it is about health.
    Health, and tax payer’s money.
    Do you know how much a small E.Coli outbreak due to raw milk in Missouri cost? Over $400,000 dollars–much of it tax payer money.

  • rawmilkmike

    The CDC says raw milk could contain pathogens that could cause illness. If you look up that illness you will find that it is the most common illness in America, that it is not serious, and that the average American gets it four times a year. That means one out of every one hundred people has that very same illness right now.
    Each raw milk cow share would have to have one of the CDC’s so called outbreaks every day just to keep up with the nation average.
    When a raw milk dairy with one thousand customers averages less than ten people a day with the dreaded illness that means raw milk is preventing illness not causing it.