Every time the words "raw milk" are about to come up during the proceedings, the jury is ushered out of the room.
There is a hilarious scene in the Monty Python movie Life of Brian where a trial is taking place of a man who allegedly said the word "Jehovah." If he is convicted, he will be stoned to death. But the word "Jehovah" is so forbidden that no one can say it even at the trial. Eventually, the judge himself accidentally says "Jehovah" and is stoned to death.
In fact, every time the words "raw milk" are about to come up during the proceedings, the jury is ushered out of the room. It happened Monday morning and again Tuesday afternoon.
It would be funny if conviction for Hershberger didn't mean jail time -- for a father of ten children. Laughter breaks out in the gallery anyway, to the scorn of Judge Guy Reynolds.
The state is arguing that Hershberger violated the law by selling milk (raw) while he was not licensed. But here's the problem: licensing requires that milk producers sell to a licensed processing plant. If you don't sell to a plant, you aren't licensed. At issue is not the fact that Hershberger failed to obtain a license, but that he cannot get a license, period, to sell milk because he was no longer shipping to a plant. Instead, he was attempting to sell raw milk directly to buyers or buying club "members" who had purchased shares in cows. But no one is allowed to say that.
Judge Reynolds ruled in the prosecution's favor before the trial started that there will be no discussion of whether Hershberger had criminal intent in not obtaining a license, no discussion of the safety of raw milk and no discussion even of why his farm was raided in 2010.
When the defense tried to bring evidence of a second page of the licensing forms, the prosecution objected that it was extraneous. "This gets into the conditions of...well you can see what it gets into, judge," the lead prosecutor said. Out goes the jury.
A telling moment during Tuesday's testimony was when Teresa Butterworth, witness for the prosecution and employee of DATCP's Bureau of Food Safety & Inspection whose responsibility it is to license and maintain dairy farm records, could not tell the defense what dairy plants do. Lead defense attorney Glenn Reynolds (no relation to the judge): "What do dairy plants do?" Butterworth: "I don't know." Later she stated: "I just process the paperwork."
By circumscribing so narrowly the rules of engagement before the trial even began -- despite the defense attorneys' best efforts -- the state is counting on the jury to also just process the paperwork.