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” even if the facts and the law of the case point toward guilt? The answer is, according to our attorneys, an emphatic “yes.”
Vernon has a private contractual arrangement with a buyers club to provide food to club members. He leases the cows on his farm to the club; club members obtain raw dairy products from the farm. He has never been accused of making anyone ill from any food he had produced.
The position of the Wisconsin Department of Agriculture, Trade and Consumer Protection, the agency that referred Vernon’s case for prosecution, is that any distribution of raw milk and raw milk products is prohibited by law. There is an “incidental sales” exception, but DATCP interprets it to mean that a consumer can legally buy raw milk only once from any given farm; repeat purchases are prohibited.
There has been a long tradition of jury nullification in this country, going back to a 1735 case in which a jury acquitted a publisher named John Porter Zenger, whose newspaper had openly criticized the royal governor of New York even though the law of the day made it a crime to publish any statement criticizing a public official.
Juries frequently exercised their nullification powers during the 1850s to acquit those in the North accused of harboring slaves in violation of the federal Fugitive Slave Act. Jury nullification was a major reason for the end of alcohol Prohibition in 1933. It has been estimated that up to 60 percent of the trials for violations of Prohibition ended in jury nullification.
There are parallels between Prohibition and the Vernon Hershberger case. If Vernon is convicted by the court, the chances of Wisconsin entering an era of “raw milk prohibition” will increase. Those who own and board their own cows will be able to continue to consume raw milk, just like those who had their own stills were able to continue to consume liquor without government interference. Other Wisconsin residents will be hampered in exercising their legal right to consume raw milk since the “incidental” one-time purchase will be their only
option. The prosecution of Vernon is an attack on freedom of food choice.
Wisconsin courts have recognized that juries have the power to return a verdict of “not guilty” irrespective of the evidence of the case and the judge’sinstructions on the law. Jurors cannot be punished under Wisconsin law for exercising their nullification powers. If the jurors in Vernon’s case believe that the laws he is accused of violating are either immoral or wrongly applied to him, they should vote to acquit.
Brian Wickert of Viroqua is a certified biodynamic and organic farmer and president of the Wisconsin Raw Milk Association.