Photo credit: Rick Barrett
Dairy farmer Vernon Hershberger was acquitted on three of four criminal charges early Saturday morning in a trial that drew national attention from supporters of the raw, unpasteurized milk movement.
Jurors in Sauk County Circuit Court deliberated about four hours, until nearly 1 a.m. Saturday, before returning a verdict of guilty on one charge of violating a holding order placed on products on the Hershberger farm following a raid there in the summer of 2010.
The 41-year-old farmer faces up to a year in jail and $10,000 in fines on that conviction. A sentencing date will be announced later, Judge Guy Reynolds said.
Hershberger was found innocent of three charges that included operating an unlicensed retail store that sold raw milk and other products; and operating a dairy farm and dairy processing facility without licenses.
Hershberger’s supporters have said he was targeted for prosecution because he sold raw milk directly to consumers through a private buying club with several hundred members.
The trial’s outcome will set a precedent, according to the Weston A. Price Foundation, an organization that has advocated for the legalization of raw-milk sales in Wisconsin and other states.
“This is a victory for the food rights movement,” said one of Hershberger’s attorneys, Elizabeth Rich.
With few exceptions, Wisconsin farmers can’t sell unpasteurized milk directly to consumers because it may contain pathogens that result in serious illness.
But many people believe that unprocessed milk, straight from the farm, contains bacteria that boost the immune system and have other beneficial properties.
Hershberger said he was pleased with the acquittals, and that now he can return to his farm in Loganville and continue to run his food store without a retail license because it’s a members-only buying club.
“I can continue to feed my community,” he said.
Earlier in the day, the farmer testified that he felt betrayed by state Department of Agriculture, Trade and Consumer Protection officials who raided his farm in June 2010 and intentionally destroyed 2,000 pounds of milk.
He was afraid that DATCP would destroy other food as well. Hershberger said that is why he violated the hold order, taking some food for his family and allowing members of the buying club to remove items for their use.
“I prayed and meditated a lot,” he said about the decision, which he described as an act of civil disobedience.
Hershberger said he had wanted to develop a business plan for his farm that would have been acceptable to state officials and maintained the Amish tradition of sharing food with the community.
“I tried to work with people. I would have been happy to sit down with them and come up with a workable solution, and I would still do that,” he said while on the witness stand for several hours.
Prosecutors, represented by the state Department of Justice, depicted Hershberger as someone who flouted the law by not getting a $265 retail license — although the inclusion of unpasteurized dairy products in his food store would have made that impossible, according to a state official.
Prosecutors alleged that Hershberger ran an unlicensed retail food business that shipped products out of state and had a product list with many items not from the farm.
In his closing arguments, Department of Justice attorney Eric Defort said the dairy farmer clearly operated a retail store, complete with a product price list, a cash register and a credit-card machine.
“This is a place where you go to purchase things. You saw the products labeled with prices, on shelves, in coolers …meat, pork, bison, cheese, juices, all kinds of products — all labeled and priced for sale,” Defort said to jurors.
Defense attorney Glenn Reynolds described the store as a place where only members of the buying club could get products, and that it was nothing like a Costco, Sam’s Club or regular grocery store.
Prices were flexible enough that if members of the club fell on hard times and could not afford to feed their family, they could get fresh, wholesome food for free.
“None of us would go into a Kwik Trip and walk out with a bottle of milk if we couldn’t afford it,” Reynolds said.
State officials spent three years investigating Hershberger, producing thousands of documents but not once speaking with any of the members of the buying club who wanted to tell their story, according to Reynolds.
“This is one of the most incomprehensible abuses of power I have ever seen,” he said, adding that the investigation was biased and mean-spirited. It was a pathetic waste of government resources to try and convict a man who had never been in trouble with the law in his entire life and is a hero for coming up with a new way” to connect urban consumers with a family farm, Reynolds said.
Until Thursday, much of the testimony in the five-day trial focused on why the prosecution believed the Grazin’ Acres store was a retail establishment.
In one month alone, March 2010, the store had $25,426 in sales, according to witnesses for the prosecution.
“It’s a lot of sales,” Defort said, adding that even members of a buying club are considered members of the general public — meaning the Grazin’ Acres store was a retail operation.
Defense witnesses, including Hershberger’s father, Daniel Hershberger, described the farm as a bucolic place where members of a buying club did chores such as shoveling manure, taking care of chickens and washing Mason jars in exchange for the right to buy unpasteurized milk and other food products.
Hershberger’s net income for 2010 was about $45,000, according to Reynolds.
“The state says (Hershberger) was propelled by greed. But those of you familiar with running a farm know that $22,000 a month isn’t the net profit,” Reynolds said.
The defense attorney asked jurors to use “common sense” and to question why the state would take such a heavy-handed approach in prosecuting Hershberger.
“This is as close to Prohibition as anything I have ever seen, but this time it’s milk and an Amish farmer, rather than liquor and gangsters,” Reynolds said.
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Contributed by Rick Barrett of Journal Sentinel.