By Ryan Ekvall | Wisconsin Reporter
BARABOO — As the jury sat in deliberation around 9 p.m. Friday, dairy farmer Vernon Hershberger stood in a prayer circle with his family, holding hands in a room just downstairs from where he’d hear the verdict of the case against him — in a trial the state insisted was definitely not about raw milk.
After five days of testimony, the jury took four hours to find Hershberger not guilty of three misdemeanor licensing charges and guilty of one misdemeanor violation of a state Department of Agriculture Trade and Consumer Protection hold order. Judge Guy Reynolds said sentencing would occur at a later date. Hershberger faces up to a year in jail and a $10,000 fine.
Still, Hershberger walked out of the Sauk County Courthouse beaming and was greeted by a congregation of family and supporters who cheered when he stepped outside. It’s been a long three years, he said.
“I’m excited to get home on the farm and be a farmer again,” Hershberger, 41, told Wisconsin Reporter on the steps in front of the courthouse. “There’s a lot of farmers hurting out there. They need something like this.”
The state accused Hershberger of not having a license from Department of Agriculture, Trade and Consumer Protection to operate a retail food establishment, a dairy plant or to operate as a dairy producer. It also said Hershberger violated a holding order when he broke DATCP-placed seals on the food in his pantry after a raid.
But Hershberger and his many supporters saw the agency’s actions as government abuse and an assault on the right to consume the food of one’s choosing — in this case, raw milk. It was a phrase the judge in the case ordered off limits during the trial.
“This is one of the most abusive, most incomprehensible uses of government power I’ve ever seen,” Hershberger’s attorney Glenn Reynolds said, adding the case was a “pathetic use” of state resources. The prosecution of it was “words put together without substance,” he said.
Reynold’s blasted the “schizophrenic” ag and trade agency and the “abusive” state in his nearly 40-minute closing arguments.
The issue, according to the defense, was not compliance. It was an assault on the freedom to choose and freedom of association. Reynolds dismissed the state’s attempt to tag Hershberger a criminal as “Orwellian newspeak.”
“You saw the video of the Hershberger’s two boys watching with shocked faces as Cathy Anderson (of DATCP) steps back from bulk tank, and boom, throws in blue dye and ruins 2,000 pounds of milk,” Reynolds said.
Hershberger testified that DATCP led him to the milk room, to what he thought was an inspection of his cows. Instead they dumped blue dye in the raw milk in his bulk tank to make sure it wouldn’t be consumed.
Reynolds asked the jury to “vote your conscience and send Mr. Hershberger back to his family an innocent man.”
The jury, for the most part agreed with Reynolds, although the guilty verdict for breaking the DATCP seals carries a jail sentence. Still, Reynolds said the verdict was a “great victory” for Hershberger and for other farmers.
The state tried to convince the jury that Hershberger might be a nice guy, but he broke the law.
“Did he have a retail food establishment license? No. … Did he operate as a retail food establishment, dairy producer, or a dairy plant? Yes, on all three,” said Eric Defort, assistant attorney general.
“There was a price list. And there was a cash register. There was a credit-card machine. There was a sticker on the door that said we take Visa, Mastercard, Discover,” he said. “This is a place that you go and purchase things at. That’s why it comes as no surprise that even Mr. Hershberger has referred to it as a farm store, because you buy things at a store.”
DeFort argued the token $35-annual fee charged to milk club members and the lease agreements they signed were just a ruse and didn’t constitute ownership in the farm, which would otherwise exempt Hershberger from needing a retail food license. He said for just $265 a year, Hershberger could have purchased a retail food establishment license from DATCP.
He didn’t mention that in doing so, Hershberger could not provide raw milk to members. Nobody really mentioned raw milk. No one was allowed to talk about raw milk or the health benefits sworn by its consumers.
“I didn’t know what to say that it wouldn’t get shut down,” said Hershberger. He said his time on the stand was frustrating as the state repeatedly objected to the defense’s questions or the answers he gave.
Both Vernon and Erma Hershberger took the stand on Friday. Hershberger’s wife, 10 children and dozens of his food-club members crowded the small courtroom’s benches.
Vernon was emotional recalling the years-old conflict with the ag department.
DATCP sent a cease and desist order in 2007 after Hershberger let his dairy license lapse.
The agency made its first visit to the farm in August 2009 and another one in June 2010. DATCP sealed his freezers and the food on the shelves, ordering the Hershbergers not to remove it. A week later, DATCP officials came back to check on the seals and Hershberger denied an inspection.
Hershberger testified that after seeing what DATCP did to his milk, he violated the hold order “to protect the food and feed the families and children.”
For more on the trial: click here