Out of the three cases, the only illness involved was traced to the administration of a brucellosis vaccine to a cow that resulted in active brucella showing up in the raw milk. In the FDA and New Jersey Department of Health investigations there were no allegations of adulterated raw dairy or other foods being distributed. Still, distributors in all three cases could be subject to criminal and/or civil penalties for distributing food their customers believed best for their health and well-being. As the new year gets underway what laws could be passed to better protect producers and distributors of nutrient-dense foods and improve the chances of those individuals getting justice if the government brings a formal administrative or judicial action against them. Here are some suggestions towards making this happen.

Jury Nullification

1. Jury nullification is the legal concept where the jury has the right to acquit the defendant even if the law points toward guilt if the jury believes that it would be unjust to apply the law given the facts of the case. Jury nullification can take place in either criminal or civil trials. The Alvin Schlangen and Vernon Hershberger trials, respectively in Wisconsin and Minnesota, were jury nullification cases where the juries refused to convict the two for violations of the food and dairy laws even though under the letter of the law either could have been found guilty.

The U.S Supreme Court has recognized the right of a jury to acquit a defendant when it believes that the application of the law to the facts of the case would be unjust.¹ The trouble with jury nullification at the federal level and in nearly all states is that even though the jury has the right to judge the law as well as the facts in a case, judges and defense attorneys are prohibited from informing juries that this right exists. States need to pass laws lifting this prohibition.

In 2012 the New Hampshire legislature passed a law stating, “In all criminal proceedings the court shall permit the defendant to inform the jury of its right to judge the facts and the application of the law in relation to those facts.” In a 2014 case, State v. Paul² the New Hampshire Supreme Court held that this law did not impose any obligation on the court to “instruct the jury as to jury nullification.”^2,3

1. 1. In response to the supreme court’s ruling a bill (HB 133) was introduced in the 2017 New Hampshire legislative session that read: In all criminal proceedings the court shall inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy. At the request of the defendant or the defendant’s attorney, the court shall instruct the jury as follows: “If you have a reasonable doubt as to whether the state has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However if you find that the state has proved all the elements of the offense charged beyond a reasonable doubt, you should find the defendant guilty. Even if you find that the state has proved all of the elements of the offense charged beyond a reasonable doubt, you may still find that based upon the facts of this case a guilty verdict will yield an unjust result, and you may find the defendant not guilty.”

The 2017 New Hampshire bill is the type of legislation that needs to pass to strengthen the juror’s right of nullification. At a minimum it makes no sense that a defense attorney cannot even inform the jury of this right. Jurors should not have to work in the blind as to their nullifying rights as they did in the Hershberger and Schlangen cases where the law prohibited the judge and the defense attorneys from telling the jury directly about jury nullification. Jury nullification is a bedrock of our justice system; jurors should be educated about it.

Jury Trials in Food Condemnation Cases
Government agencies generally have to petition courts to destroy food the agencies have seized. The government usually does this on the grounds of protecting the public health but in nearly all cases there is no evidence that the food from the same production batch under seizure has made anyone sick. For some producers or distributors a single court order to destroy food can put them out of business. In cases like the Kansas raw camel milk seizure the government hasn’t even alleged that the milk is adulterated or a threat to human health.

In one Missouri case, a court ordered the destruction of over 30,000 pounds of raw cheese even though the cheese manufacturer, Morningland Dairy, had never been accused of making anyone sick in 30 years of doing business and neither FDA nor the Missouri Milk Board had tested any of the cheese subject to the destruction order. FDA had taken 100 environmental swabs at the facility all of which were negative for the pathogen. Judges who rule against destroying food are in a no-win situation even if the facts of the case favor the food producer or distributor; they are under tremendous pressure to err on the side of protecting the public health even if there is no real health threat at all. A jury would better take into consideration the evidence on the side of producers and distributors in these cases.

Jury Trial for Cases Where the Government Seeks a Permanent Injunction Against Food Producers and Distributors
An injunction is a court order prohibiting someone from doing some specified act or commanding someone to undo some wrong or injury. A permanent injunction is a final court order that is permanently in effect unless the court lifts the order. Those who violate the injunction can face contempt charges with the possibility of fines and/or jail time.

In Michigan the past couple of years the Michigan Department of Agriculture and Rural Development (MDARD) has brought court actions for injunction against two different raw milk producers, Hill High Dairy and Dairy Delight Cow Boarding, for matters that should not have been any of MDARD’s business. In the Hill High Dairy case the department tried to stop individuals leasing cows from having the leaseholders hire someone to process their own raw milk into other dairy products; in the Dairy Delight case the department tried to stop those in a herdshare program from selling, among other foods, oatmeal cookies and apple muffins to other shareholders without proper labeling. Both cases involved private, closed-loop transactions far outside the stream of public commerce; in the Hill High Dairy case, MDARD not only obtained an injunction against the dairy prohibiting it from violating state food and dairy laws but brought contempt charges against the dairy when its leaseholders continued to have their raw milk processed into other dairy products. Thankfully, the judge hearing the case brought some common sense to the matter when he ruled the dairy was not in contempt.

Agencies like MDARD would be less likely to bring actions for an injunction and contempt suits for violation of an injunction in these type of cases if they knew that food producers and distributors would be entitled to a trial by a jury of their peers.

Right to Jury Trial for Appeals of Administrative Rulings
Government agencies seeking to punish food producers with penalties such as license revocation or fines can resort to administrative hearings where the odds of success are not as great for producers as they would be in a judicial court. Several raw milk producers have found out firsthand that administrative hearings are often one-sided proceedings in which those the agency is trying to punish are afforded little due process.

One Ohio farmer had his dairy license revoked at an administrative hearing for taking a $2.00 donation for a gallon of raw milk he gave to an undercover officer from the Ohio Department of Agriculture. Raw dairy producers have been through administrative hearings where, even if the person presiding over the hearing ruled against the government agency, the agency had the power legally to ignore the ruling and issue the order it wanted to anyway.

Parties can appeal the ruling to a judicial trial court; the courts sits as an appellate court for the appeal but is limited to reviewing just the record from the administrative proceeding. The system needs to change so that the trial court would sit as a trial court trying the matter from the beginning as if it had never been heard in the administrative proceeding (the legal term is de novo trial) to give the individual the agency seeks to punish a fresh start in a less biased proceeding. To further discourage government harassment there should be a right to a jury trial in the appeal of an administrative proceeding to a judicial court.

Even if a state currently has a favorable regulatory climate for the production and distribution of nutrient-dense food, it is still the right move to pass the laws suggested above in case the enforcement policy of the agencies ever change.

Producers and distributors of raw milk and other nutritious foods who take the risks they do to make those foods available deserve to get justice and not just law if a court action is brought against them. Greater protection is needed for those who provide for our sustenance.

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[1] Spanf v. United States 156 U.S. 51 (1895)
[2] State v. Paul 167 N.H. 39,42
[3] The jury instruction the trial court judge gave in the Paul case was: “You should follow the law as I explain it regardless of any opinion you may have as to what the law ought to be. If you have a reasonable doubt as to whether the State has proved any one or more of the elements of the crime charged, you must find the defendant not guilty. However, if you find that the state has proved all elements beyond a reasonable doubt, you should find the defendant guilty.” Paul, p. 41.

The post A Wishlist of Just Laws for Those Who Feed Our Families appeared first on Real Milk.

Hershberger, who provided unpasteurized dairy to members of his buying club, was found not guilty of: operating a farm store without a retail food establishment permit; operating a dairy farm without a milk producer license; operating a dairy plant facility without a license. He was, however, found guilty of violating a hold order that the Wisconsin Department of Agriculture, Trade and Consumer Protection officials placed on his farm’s products during a June 2010 raid.

Hershberger admitted to removing the tape placed on his dairy cases to allow his club members access to their property (the unpasteurized dairy).

“For Vernon, this was an act of civil disobedience,” says Elizabeth Rich, one of Hershberger’s attorneys who is part of a team from the Farm-to-Consumer Legal Defense Fund. “He believed the state was exceeding its authority, and that, as owners, his members had every right to the dairy products from their own cows.”

Wisconsin law allows owners of cows to drink their cow’s milk without licenses, which will be the basis of Hershberger’s appeal.

Read more details about the appeal on the Farm-to-Consumer Legal Defense Fund website, Farmer Hershberger Seeks Full Vindication.

The Campaign for Real Milk is a project of the Weston A. Price Foundation, a nutrition education non-profit. Donate to help us continue the research work started by Dr. Weston A. Price.

The post Vernon Hershberger to Appeal Verdict appeared first on Real Milk.

As part of his bail conditions set in 2012, Hershberger was barred from selling dairy products until obtaining the proper licenses. Friday’s motion cites a newspaper article that quoted Hershberger as saying that he continued to sell raw milk and other products to his buyers’ club after the state ordered him to stop in June 2010.

Hershberger was acquitted of 3 charges of producing and selling dairy without proper state licenses, but was found guilty of violating the holding order. This meant that Hershberger was required to continue to adhere to his original bail conditions. Hershberger’s attorney, Glenn Reynolds, expressed disappointment in the state’s motion to revoke bail of a father of 10, who was almost entirely found innocent in his recent trail.

“It seems vindictive in my view,” Reynolds said. “He goes to trial and wins and now they want to put him in jail? What is the point of this sort of motion?”

The court heard the motion on Monday, June 3rd, and the  judge decided to wait until the sentencing hearing.

For more information: http://wislawjournal.com/2013/06/02/state-seeks-to-revoke-raw-milk-farmers-bail/

See the press release issued by Farm-to-Consumer Legal Defense Fund: http://www.farmtoconsumer.org/news_wp/?p=9673

The Campaign for Real Milk is a project of the Weston A. Price Foundation.

The post The “Vindictive” Aftermath of the Vernon Hershberger Trial appeared first on Real Milk.

The riveting, weeklong trial of Vernon Hershberger, the Wisconsin farmer charged with four counts relating to selling raw milk and cheese, ended on May 25^th with the jury finding him not guilty on 3 of the 4 charges – giving raw milk advocates hope that public support for the legalization of unpasteurized dairy products is gaining momentum. 

Hershberger was declared innocent of producing milk without a license, selling milk and cheese products without a license, and operating a retail establishment without a license. He was found guilty of one count of breaking a holding order issued by the state in June 2010, which prohibited Hershberger from selling or distributing any of the food he produced without a license. Hershberger faces up to 1 year in prison and a maximum penalty of $10,000.

“The maximum penalty is still a small price to pay compared to the price of a guilty conscience because of letting good food spoil while families with small children are in need of it,” said Hershberger.

The not guilty verdict on the other three counts means that Hershberger can continue to sell raw milk and raw milk products to members of his buying club – ensuring that Wisconsin residents who rely on raw milk for health benefits have at least one way to get it.

Read The Wall Street Journal’s coverage of the trial, and watch a short clip here:

http://online.wsj.com/article/SB10001424127887324125504578509453007615858.html

Read the full press release on Hershberger verdict here:

http://www.globenewswire.com/news-release/2013/05/28/550238/10034247/en/Jury-Finds-Peaceful-Farmer-Does-Not-Need-Licenses.html

Realmilk.com is a project of the nutrition education non-profit, The Weston A. Price Foundation.

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