DOJ Pushes to Jail Hershberger After Jury Acquittal

Heather Callaghan

Image: Farm Food Freedom Coalition

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Farmer Acquitted by Jury Now Threatened With Jail Time by Wisconsin Department of Justice

Just over a week ago, a heated battle went down in Baraboo, Wisconsin and farmer Vernon Hershberger received a mostly victorious verdict despite major odds stacked against him. A jury found him not guilty for three charges dealing with lack of licensing while distributing fresh foods to herd share members; and guilty for breaking a holding order when he cut the tape to feed his family and continued distributing after a 2010 raid. Agents had ruined his food by pouring blue dye into a giant bulk tank, ruined his personal food, stole his computer and files and left his family with two days’ food. This guilty count still holds a penalty of one year in jail and $10,000 in fines

So, within a few days after jury acquittal, Eric Defort and Phillip Ferris, attorneys for the Wisconsin Department of Justice (DOJ), move to have the judge revoke the terms of the original bond and jail Vernon Hershberger before his sentencing is decided. They are standing with Wisconsin Department of Agriculture, Trade and Consumer Protection (DATCP), the prosecutors, with this move and still trying to twist this into a business license thing.

Let’s back up the train a bit because these trials and hearings have been going on for a long time now. In January 2012 Vernon Hershberger was arraigned at the Sauk County Courthouse on four criminal misdemeanor charges for violations of the state food and dairy code; after initially appearing before Judge Guy Reynolds, he was released on a $500 bond after a January 2010 raid with the bond containing conditions he was not to violate. That’s the holding order Vernon later decided to break, believing that it would be wrong to stop feeding the people who depended on that supply, including 10 children and his wife.

In March 2012, Defort and Ferris sent a letter to judge Guy Reynolds requesting a revocation of Vernon Hershberger’s release order, based on the state’s contention that Hershberger was violating terms of the release. The judge, in a court hearing in Baraboo, refused to hear the request, telling the prosecutors that he only responded to motions, not to letters. The prosecutors never followed up with a motion . . . until more than 14 months later – just after the jury acquittal. The motion was filed the morning of Friday, May 31, 2013.

The state filed its motion shortly after a Capital Times online article on Vernon Hershberger posted May 29. The motion claims “the article reflects that Hershberger admits that he violated the bail conditions ‘all along’.”

Vernon had said in the interview:

I can tell you the truth now. We never shut down. We continued to feed our community. That’s the way it continued all along.

The main conditions under the terms of Hershberger’s release were that he not:
  • sell food without a retail food establishment license
  • manufacture or process dairy products without a dairy plant license 
  • nor sell or distribute milk produced on his farm without a milk producer license
One of Hershberger’s attorneys, Elizabeth Rich, said:

This action by DATCP is disappointing because we had hoped that the verdict would trigger a re-evaluation at DATCP of its approach to enforcement in the agricultural community. The verdict offered an opportunity to open dialogue and a badly needed mending of the damaged relationship between the Department and family farms. It is unfortunate that the government has instead chosen to pursue more of the same: expensive, heavy-handed enforcement that further erodes trust of the community.

On June 3 at 1:00 p.m. there will be a telephone conference to set a date for sentencing on the hold order conviction. At that time DOJ will request a revocation of the January 2012 order releasing Hershberger, i.e. extra retroactive jail time. (see update below)

It’s as though the Wisconsin Department of Justice just tuned in – I think we all knew Vernon broke the holding order, because, uhh…, that’s partially why he was on trial. 

Defense attorney Glenn Reynolds (no relation to judge) plans to challenge the holding order conviction, saying:

If the jury found him not guilty on the need to have licenses, there was no legal basis for the holding order.

Does that remind you of a form of double jeopardy in a way? A form of double jeopardy is happening to Alvin Schlangen, whom we’ve written about and also came to the trial to support Vernon. It looks like Vernon’s trials are not over….
This just in from David Gumpert:

Hershberger judge puts off motion to jail WI farmer till June 13, when sentencing hearing will be held.

I thought that this acquittal over licensing requirements would set a precedent and cause the State to back off, but now I am not so sure. Since it was a criminal trial, the results only apply to Vernon, now under further attack, and not Wisconsin herdshares in general. Wisconsin Cheese Makers Association, Wisconsin Medical Society and the Wisconsin Farm Bureau Federation have long lobbied to quash raw milk availability. Three years ago they pressured Governor Jim Doyle to veto a bill that would have allowed limited from-the-farm sales; and three weeks later, lo and behold – Vernon gets raided! (source)
Some people have written us to disagree about juries’ rights to vote by conscience in the face of aggressive victimless crime convictions and feel that Hershberger should have followed the holding order. Just a reminder about how “breaking the ‘law'” served a purpose, from David Gumpert:

Hershberger holding order guilt irony: if he hadn’t violated order, wouldn’t have gotten criminal trial & jury that acquitted on licensing.

An interesting take and conversation on the recent developments appears at Gumpert’s blog, The Complete Patient.

Look into donating at Farm-to-Consumer Legal Defense Fund to support Vernon and his family through this battering of legal aggression.

Also check out Farm Food Freedom Coalition 

Read Other Articles by Heather Callaghan

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