Start with a peaceful farmer trying to serve his community by distributing food to those who unable to get to a farm. Enter the Minnesota Department of Agriculture (MDA) with the typical BigGov-prompted-by-BigAg “food safety” vendetta against raw milk and small, sustainable farmers, targeting the farmer in two separate cases in different counties. Add the Farm-to-Consumer Legal Defense Fund, with whose help the farmer is represented by an experienced trial attorney, and the result is a victory in the first case. On to case number 2.
Brief Re-Cap of Trial 2, Day 1
Two witnesses for the prosecution testified today. One was a Veterinarian from the Minnesota Department of Health with a background in food safety and infectious diseases. The other was an inspector from the Minnesota Department of Agriculture (MDA), who has spent his entire adult life in food inspection bureaucracies, with 35 years at the USDA’s FSIS and 7 years at the MDA.
The Health Department Veterinarian’s Irrelevant and Inflammatory Testimony
First up: Minnesota Department of Health veterinarian, Joni Scheftel. Ms. Scheftel testified that her division helps identify source of illnesses and enforce against those sources.
If you didn’t know better or weren’t listening extremely carefully, you could be forgiven for assuming that Alvin’s practices must have led to a bunch of people getting very sick with tainted food. This is because she pontificated at length about hypothetical outbreaks of food borne illness and the characteristics of organisms like salmonella, campylobacter, and E. Coli. She also testified regarding a single case of food borne illness that happened at about the same time the MDA targeted Alvin for food distribution. David Gumpert wrote anexcellent article on this after the prosecutor sign-posted this tactic in the days before trial.
On cross-examination, Ms. Sheftel acknowledged that there was nothing tying Alvin’s practices to that illness (where there were several more likely potential sources of illness) or to ANY outbreak of the litany of illnesses she had described. But, the fact that she was prompted by the prosecutor to go into such detail about these irrelevant illnesses and hypothetical outbreaks means the prosecution must hope the jury will tie Alvin to unrelated illnesses when it decides his fate, just as David Gumpert predicted in his article.
The theatrical exchange between Ms. Sheftel and the prosecutor on re-direct examination (which is the final testimony of the witness; it comes after the defense’s cross-examination) capped off her irrelvant testimony:
STATE: Ever drink raw milk?
MS. SHEFTEL: Yes. For about 10 years.
STATE: Why’d you quit?
MS. SHEFTEL (with a meaningful grin): I quit in veterinary school.
For reasons I cannot currently comment on, I don’t think this underhanded tactic is going to work; more on that at the right time.
MDA’s Big Gun Shoots a Blank
Next up was one of the more boring bureaucrats I’ve ever heard examined by a government attorney, MDA Compliance Officer John Mitterholzer. Despite his distinct Minnesota accent, Mr. Mitterholzer’s true fluency was in bureaucratese. But, even as fluent as he was in bureaucratese, he was even MORE fluent in hedge language. “Possible/possibly,” “seemed like,” “apparent/apparently/appeared to,” “looks like,” “could be,” and “might” dotted his vocabulary even more than technical bureaucratic terminology. I’m not sure he ever made a direct statement – except perhaps when he acknowledged not knowing where he got a document that was important to their case.
The high point of the day was when Defense Attorney Nathan Hansen objected to the prosecution’s attempt to enter into evidence a print-out of an Excel spreadsheet with no foundation as to where exactly it came from or how it came into the possession of the witness. Mr. Mitterholzer had no idea how he got it and could not explain its origin. It’s good news for the defense when the prosecution is not able to establish foundation for one of its key exhibits. As a bonus, the witness’ failed memory got the prosecutor really irked at him, which he was not shy about showing. A prosecutor being irritable with one of his own witnesses in front of the jury is always a fun side show during otherwise tedious testimony.
Overall, I don’t think the prosecution made much head-way today, despite its attempt to paint this as a food safety case. Tomorrow begins with cross-examination of Mr. Mitterholzer. Stay tuned . . . this should be interesting.
- Amy Salberg, The Real Food Lawyer