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.
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Food Safety News is a daily online news site reporting on an array of food issues, including foodborne illness outbreaks and investigations, recalls, food policy and law, food politics, sustainability, and the local food movement. Stories appear alongside opinion pieces and contributed articles from food safety experts.
Republished with permission from Food Safety News. Copyright (c) Marler Clark LLP, PS. All rights reserved.
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