The Complete Patient

As strong as the stench coming from the Pennsylvania Department of Agriculture was yesterday in Mark Nolt’s trial, it actually intensified today, in a tiny Elizabethtown courtroom, about 50 miles down the road, where Glen Wise went on trial for selling raw dairy products without a permit.

So unpleasant was the odor that even the judge of the Magisterial District Court in Elizabethtown, Jayne Duncan--sitting in front of engraved copies of the Declaration of Independence and the first page of the U.S. Constitution, and hearing arguments from a farmer without a lawyer—got enough of a whiff that she dismissed two of the three citations against Glen, and reduced the fine on the third from a possible $300 to $50. She labeled the PDA’s approach in handling its investigation of Glen “unfair” by failing to notify him in a timely manner of its undercover purchases of dairy products.

But implicit in her action was a condemnation of the PDA’s entire entrapment approach in going after Glen.

Like yesterday, the PDA sent its chief attorney, Brook Deur, to prosecute the case against Glen, who, like Mark yesterday, is a Mennonite and chose not to have legal representation. (Mennonites also don’t like to have their faces photographed, so the photo above of Glen and supporters is taken from the back.) With Deur was the PDA’s main witness, Joe Goetz, a food sanitarian with the agency’s Bureau of Food Safety for the last two-and-a-half years, and its undercover officer of the day. Like Tony Russo yesterday, Goetz painted a picture of an employee forced into distasteful actions, except his assignment was even more questionable than that described yesterday in the Mark Nolt case.

At first, it sounded like standard practice. “I was directed by my supervisor to make a purchase of raw milk and kefir” from Glen Wise, Goetz stated. He described how he went to the Wises’ Shady Acres Dairy Farm on three occasions--Nov. 14, Jan. 8, and March 8—each time purchasing half a gallon of raw milk and a quart of kefir.

But when it came time for cross examination, Glen was ready. “Did you see the sign on the refrigerator, “Dairy products for sale to CARE members only?”

Goetz said, “Honestly, I did not pay attention to any signs.”

But it got worse. “Are you a CARE member?”

“Yes.”

“So you did sign a CARE contract?”

“Yes”

“Did you read that contract?”

“Yes”

When Deur objected that Goetz was being asked to interpret the law, the judge intervened. “What was the purpose of the contract?”

“I was asked to sign the contract by my supervisor,” Goetz answered.

The judge followed up: “What did you expect that the contract provided?”

Goetz said he couldn’t recall.

The point here is very important, though. The CARE membership agreement (CARE is the Communities’ Alliance for Responsible Eco-Farming and requires all members to pay a $20 annual membership fee) states at the start, in bold, all caps:

“All CARE MEMBERS MUST INITIAL AND CERTIFY, UNDER PENALTY OF PERJURY WITH THE INTENT TO BE LEGALLY BOUND TO THE FOLLOWING…”

There follow eleven clauses that must be initialed indicating, for example, that the member isn’t aware of any medical conditions that would prevent him or her from consuming raw dairy and supports CARE’s mission statement. However, the first clause in the list states: “Whereas, that HE/SHE is not acting under color of law to entrap, hurt, prosecute, or otherwise trespass/and/or and gather information for any agency, corporation, person or other entity to in any way negatively affect the CARE Alliance/Association, its board of directors, members or its purpose.”

Judge Duncan hadn’t seen the CARE contract in advance, but she made copies of it during a recess in the proceedings.

In her ruling, Judge Duncan said that Glen’s argument that the CARE contract is a private arrangement between the farmer and the consumer, and thus outside the state’s raw-milk permitting requirements, “is outside the scope of this court’s authority.” In effect, she was leaving the matter to the Common Pleas Court, where Glen intends to appeal the single citation he was found guilty on.

Afterwards, there was general satisfaction in Glen’s camp. Bill Reil, a local constitutional law expert who advised Glen and sat with him at the defendants’ table, said, “We walked out of there with one citation instead of three. That was the best we could have hoped for.”

Mark Nolt, who was among the 40 or so supporters, was also impressed. “We lost the battle, but we’re winning the war.”