- Amy Salberg, The Real Food Lawyer
By now, you know that Alvin Schlangen was convicted of all 5 counts brought against him by the Minnesota Department of Agriculture, discussed here. Driving back from Minnesota when I heard the news by phone, I pulled over in Western Wisconsin and posted about it on my Facebook page as soon as I knew about it. I also shared a link to David Gumpert’s article about it. But, until now, I haven’t detailed my response to the verdict.
Having returned home late Thursday with other obligations and events on my calendar since then, this is my first chance to share my thoughts on the outcome of Alvin’s trial, from the perspective of an attorney who observed it but was not on the legal team.
One Armchair Attorney’s Perspective on Lessons
Learned from the Trial of Alvin Schlangen:
1. Never underestimate the opponent. The state has excellent lawyers and knowledgeable bureaucrats on its side. We must not underestimate their ability to learn from past mistakes and put on better cases as they learn.
We also need to ensure that the good guy in the food freedom case can fight fire with fire by having experienced legal counsel and expert witnesses of his own. Even with lawyers willing to help farmers for significantly reduced (or no) fees, trials are expensive and most small producers cannot afford to defend themselves against the long arm of the law. This is why the Farm-to-Consumer Legal Defense Fund is so important – it provides pro bono, low bono, low- or no-cost representation to targets of state action by experienced legal counsel who are experts in the field of food rights and related fields, such as criminal law, environmental law, regulatory compliance and litigation, civil litigation, and business law.
Farm-to-Consumer Legal Defense Fund (FTCLDF) Defending the rights and broadening the freedoms of family farms and artisan food producers while protecting consumer access to nutrient dense foods More About the Farm-to-Consumer Legal Defense Fund
2. Do not allow prior victories to make us overconfident. I do not know whether this was a factor in Alvin’s case, but he did win a prior case brought by the state for essentially the same claims in a different county. While all cases differ on the facts, it may be difficult to recognize this where two cases involve the same defendant on similar claims. But, even when the defendant is the same, the facts may differ, the players may differ, the state may be better prepared the second time around, the jury will differ, and even the political atmosphere into which the case is brought may differ. Past performance does not guarantee future results.
In Alvin Schlangen’s case(s), the first county he was tried in was where Alvin just delivered food; the second county is where his farm is located, putting a slightly different perspective on the facts. There were also slightly different players. While many of the same bureaucrats were involved in both cases, the second case had a different judge and prosecutor. I did not attend the first trial, but those who did attend both trials told me the prosecutor in the second case was more engaging, more capable, and better prepared than the first one. I do know he was a good story teller, which is an important aspect of these cases (more on that below).
3. Food Activists need to SHOW UP.
I have been to court proceedings in food rights cases that were VERY well attended (e.g., Vernon Hershberger’s trial and Mark Baker’s dispositive motion hearing). In fact, Alvin was one of those in attendance at Vernon’s trial, which is where I met him. Sadly, this trial was not well attended. There were only, at most, a couple dozen people in or around the courtroom and courthouse at any given time. I’m not sure why this was, but have speculated that perhaps activism fatigue, bad summer schedules, or an inconvenient venue may have played a role. The fact of the matter is, those of us who believe in food freedom need to do better than this. I cannot make it to every case either, and understand that situations arise; I am not condemning any particular person for not making it to this one. That said, I find it very hard to believe that everyone who was capable of being there was in attendance. Let this be a reminder to all of us that showing up is often half the battle.
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