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Hershberger appeal denied

July 22, 2014 | 0 comments

MADISON

A Loganville dairy farmer — who became the face of the raw milk and food freedom debate in Sauk County court last year — has lost his appeal for the courts to reverse a misdemeanor conviction.

Vernon Hershberger, who runs a dairy farm and food club in Sauk County, was the subject of a weeklong jury trial in the Sauk County Circuit Court in May 2013.

Jurors found him not guilty on three charges related to not having certain food licenses, but guilty on the fourth charge of violating a holding order imposed by state food safety inspectors.

In statements and press conferences, jurors who had heard the case said they wished they had found him not guilty on all charges — based on things they learned after the trial but which they were not allowed to hear during the trial.

The Wisconsin Court of Appeals on July 17 upheld the misdemeanor conviction for violating the holding order imposed by the Department of Agriculture, Trade and Consumer Protection's food safety division.

Hershberger and several food freedom groups that helped him with his legal campaign appealed the one guilty verdict.

They argued that Judge Guy Reynolds, who set the rules for the original trial in the pre-trial rulings, prohibited Hershberger from introducing evidence that there was no factual basis for the state to issue the holding order.

As part of the evidence to the appeals court, they introduced an intact version of the holding order — without the blacked-out sections ordered by the trial court.

The holding order prohibited Hershberger and his wife, Erma, from selling dairy products from their farm's "pantry" while the 14-day holding order was in force. During the trial last May both admitted they had done so, because they hate to waste food.

In pre-trial decisions, Hershberger and his lawyers were prohibited from attacking the holding order. It was also decided that the term "raw milk" could not be used during the trial.

Last week the appeals court upheld the decisions made by the trial judge. That means Hershberger is guilty of the holding order violation and could face jail time. He was fined $1,000 and court costs.

The appeals court ruled that Hershberger could have used a process to contest the holding order at the time it was issued, under a system in place at DATCP and other state agencies, but didn't do so.

The farmer argued that he didn't have any way of knowing his rights under various appeals processes in state agencies.

During the appeals process, his attorneys also argued that the pre-trial motions from the trial judge denied the farmer his Constitutional right to put on a defense. But the appeals court did not agree with that argument.

One guilty verdict

Hershberger's trial in May 2013 became a cause celeb for raw milk and food freedom advocates who came to Baraboo to support the farmer and his family.

Hershberger's father, who still adheres to Amish beliefs and lifestyles, came from Ohio to testify at the trial. Others came from as far away as Vermont to support Hershberger.

A number of his "food club" members sat through the entire trial and made meals for the Hershberger family.

His supporters were ecstatic when the jury issued three "not guilty" decisions and his defense team announced they would appeal the one misdemeanor "guilty" decision.

The case was pursued by attorneys from the Department of Justice and DATCP when Sauk County's district attorney declined to prosecute Hershberger.

What many had called the "raw milk" trial ended up being contested over key points of licensing rather than religion or peoples' freedom to choose what foods they want to eat.

Pre-trial motions had limited what would be allowed as testimony during the trial.

Hershberger supporters criticized those pre-trial rulings this week in the wake of the appeals court decision. Andy Mastrocola, founder of Food Freedom USA said those rulings — and the heavily blacked-out documents Hershberger tried to use in his defense — prevented the jury from getting both sides of the story.

Wisconsin Department of Justice spokeswoman Dana Brueck commented on the court's ruling, saying "This appeal is not a referendum on the desirability of on-the-farm sales of raw milk products.

"Rather, it involves the ways in which a defendant may — and may not — challenge a (state) holding order."

Attorney comments

Wisconsin-based attorney Elizabeth Rich, Vice President of the Farm to Consumer Legal Defense Fund was Hershberger's chief legal counsel.

She commented to Mastrocola's Food Freedom USA that the appeals court decision continues what she considers a "disturbing trend toward empowering administrative agencies" that allows them to exercise their authority unchecked.

Decisions in the courts have prevented any "meaningful review" of agency actions, she adds.

Rich said the holding order in the Hershberger case called the dairy products "misbranded" and "adulterated" and included the statutory definition of those terms including the statement that the products were "dangerous to human health."

The attorney said all of that information was blacked out in the order before it was shown to the jury.

She argued that the jury should have had the opportunity to review the unredacted order, and that Hershberger was prevented from putting on a defense when this information was withheld from the jury.

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