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A group ofwomen in traditional Amish dresses waited outside the Sauk County Courthouse during a recess in the final day of the Vernon Hershberger trial.<br />

A group ofwomen in traditional Amish dresses waited outside the Sauk County Courthouse during a recess in the final day of the Vernon Hershberger trial.
Photo By Jan Shepel

Farmer not guilty on three counts in raw milk case

May 30, 2013 | 0 comments

BARABOO

Loganville farmer Vernon Hershberger was all smiles at the end of a weeklong trial when a Sauk County jury found him not guilty on three counts related to the sale of raw milk on his farm. He was found guilty on one count – violation of a holding order following a raid on his farm in 2010.

The prosecution – led by attorneys from the Department of Justice and Department of Agriculture, Trade and Consumer Protection (DATCP) – had presented its evidence first, resting their case at mid-day on Thursday (May 23.)

The Sauk County district attorney had declined to prosecute Hershberger, so the case fell to state attorneys.

The defense called as witnesses Hershberger’s father, Daniel, an Ohio Amish man, Hershberger’s wife Erma, several members of the buyer’s club he operates on his farm and Hershberger himself before resting its case late on Friday afternoon.

The jury deliberated until turning in its verdict at 1 a.m. on Saturday morning.

"I think they’ll think twice about bringing charges like this again," lead defense attorney Glen Reynolds told reporters after the verdict.

The "raw milk" trial ended up being contested over key points of licensing rather than religion or peoples’ freedom to eat foods as they see fit. Pre-trial motions had limited what would be allowed as testimony during the trial.

Prosecutors also tried to quash any mention of the "cow-share" or "buyer’s club" system of selling milk directly from the farm as a strategy that had been approved by DATCP.

Daniel Hershberger, who at one time farmed with his son in Sauk County, told Wisconsin State Farmer about a meeting he and his son were at that included DATCP officials where they were told how to set it up.

The elder Hershberger, who now lives back in the Ohio Amish enclave where he raised his 18 children, said he had taught them "not to throw in the towel if you get into a tough situation."

He said his son had "left the culture he grew up in, but he’s still honoring the teaching." Vernon Hershberger is his second-oldest child and his oldest boy. "It’s been a pleasure being his dad," he told the court.

Daniel Hershberger moved to Wisconsin in 1998 with his son and a son-in-law and their families because they felt the state was more rural than their Amish enclave 100 miles south of Cleveland and he wanted to get them starting in a farming operation.

It had always been their way of life to take milk from the farm and make cottage cheese, yogurt, butter and buttermilk from it, he testified.

When he learned that people were looking for this kind of food he thought "we must be a godsend," he told the court.

During testimony, prosecutors sought to have evidence of the "club member" legal concept kept out of evidence as a way to "contract their way out" of state regulations and Wisconsin law.

Some of it was allowed into testimony as a way to "explain transactional facts of the case" and to "explain the way these people dealt with each other," Sauk County Circuit Judge Guy Reynolds ruled.

In pre-trial rulings last month the judge had barred any testimony about the merits of raw milk. The judge also ruled that Hershberger’s religious beliefs could not be part of the trial.

There had never been any allegation that people were sickened by milk from the Hershberger farm.

 

RAW MILK

Eldon Glick, who lives in upstate New York, took the week to haul Daniel Hershberger to the trial. He said where he lives there is no issue with raw milk sales. "I buy raw milk from my neighbor up the road," he told Wisconsin State Farmer.

Aajonus Vonderplanitz testified that he had set up a cow leasing agreement with the Hershbergers in 2010 and said he had several arrangements like this with other farmers.

Erma Hershberger testified that some of the "buyer’s club" members had been part of the farm since 2004. Before the "pantry" was built, these club members came into her kitchen for their food, she said’ afterwards, they bought their food in the pantry.

Though prices were placed on the food, she said, some members paid more or less and some people paid nothing. "If they’re falling on hard times and they have children to feed I can’t deny them that."

Raw milk and "food freedom" advocates had planned for hundreds of Hershberger supporters to be at the trial and related activities they had set up across the street at the historic Al Ringling Theater in Baraboo. Sauk County officials had moved the trial to a larger courtroom and set up an overflow viewing room in a courthouse annex.

But crowds were smaller than organizers had expected.

There was interest from local, state and national media in the trial – the Wall Street Journal had a reporter there for three days, said Hershberger supporter Judy Patton of Mazomanie, who has been a member of his buyer’s club for over six years.

"For me, this is a big issue. It’s about unprocessed, farm-fresh food and it’s also about just plain choice. Why can’t I look this farmer in the eye and say I want this kind of food and I’ll pay you for it?" she told Wisconsin State Farmer.

She and her husband are among the club members who volunteer their time at the farm. Some do it because they want to help out the family, others do it in return for food, she said.

"I know the state needs for their case to characterize the Hershberger farm as a retail establishment, but it really is more of a collaborative community," she added. "This could be a model for direct-to-consumer sales and DATCP used to promote it.

"We love these people. I hope that’s apparent."

During the trial, the gallery was filled with many people wearing traditional Amish and Mennonite garb, as well as those with expensive suits, women knitting and many small children. Erma Hershberger sat in the front bench with as many as eight of the 10 children she has with her husband.

Some of the testimony during the trial centered on the fact that Hershberger didn’t always collect or document the "member fees" of those who bought food at his farm’s "pantry" as he and his wife called it.

Pre-trial motions excluded any testimony about value-added conferences where the business model he adopted had been promoted.

The jury saw video, taken by Erma Hershberger, of the day when inspectors from DATCP and the health department came to the farm and "de-natured" a bulk tank of milk with blue dye so it wouldn’t be used for food. That was also the day the inspectors placed a hold on food that had been made from Hershberger’s milk that was in the "pantry."

He later testified that he had broken that hold in order to use the food. At the end of the trial the jury of seven men and seven women found him guilty on the charge related to that food hold.

Sentencing will take place at a later date. Hershberger could still get up to a year in jail and a $10,000 fine on the one count.

 

FARMER TESTIFIES

During Vernon Hershberger’s testimony, the defense introduced video clips of the farmer going about his work at the farm – setting up for milking, getting cows in from pasture, making cottage cheese in his on-farm make room and working with horses.

He testified that he farms with organic methods and uses intensive grazing to feed his cows. "I haven’t fed grain for five or six years," he said.

The video clips also provided a glimpse of the Hershberger’s family life.

He testified that when he and his family members set up their Grazin’ Acres LLC in 2004 their mission was to make food available for people who couldn’t grow it themselves.

During the last day of the trial the jury was repeatedly sent out so the judge and attorneys could argue over what kinds of evidence would be admissible concerning the LLC and legal structure of Hershberger’ business.

Hershberger testified that he had let his state milk license expire because he felt they weren’t going to need one if they didn’t ship milk commercially. "We needed all our milk for our members."

Four or five days after he stopped shipping milk sheriff’s deputies accompanied the DATCP and health department officials to the farm to issue the hold order and de-nature his bulk tank of milk.

Hershberger’s voice cracked when he said he had felt "betrayed" by the actions of regulators. "For 10 years I had tried to work with people. I had tried to sit down and go over agreements and work things out."

During cross-examination, prosecutors asked him if certain products sold in the store were produced on his farm. He said things like goji berries, bison, walnuts and some cheeses were not, but that they were there because members wanted them.

Hershberger said his family used those products and members requested them. "One member produces home-made soap and that is on our shelves."

On the fifth day of the trial, Ginny Bormann, who travels from East Bristol near Sun Prairie to buy food from the Hershbergers, said she felt the trial was a "huge waste of tax dollars."

As a member of the Grazin’ Acres buying club, she said she and others are "buying and eating things we want to eat. They’re trying to make an example out of him. I think selling raw milk direct is a viable way to support family farmers."

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