Most Mondays FIJA hosts a brief Zoom session covering highlights of recent jury-related news and how it intersects with jury nullification as well as FIJA goings on and other related items of interest we come across. It is followed by a short Q&A session to address any questions about the session topics or other jury-related questions. This is an abbreviated summary of the presentation on 10 October 2022, not including the Q&A.
Click here to register for the live sessions through the end of December 2022.
Defendants in Smithfield Trial Found Not Guilty on All Counts
In what seems like an unlikely victory, animal rights activists Wayne Hsiung and Paul Picklesimer were found not guilty on all counts by a southern Utah jury for removing two piglets without permission from a Smithfield Foods corporate farm.
Some folks have been calling this jury nullification, but the accused maintain that they did not break the law. They did have a somewhat unique argument, so this is one where unless jurors actually speak out publicly we probably won’t know if it is or is not a result of jury nullification.
Sometimes you have jurors who are really nullifying, but they feel like they could get in trouble if they don’t have sort of a cover story, so having something to hang their hat on will often give them that confidence they need to do what they want to without actually thinking it’s jury nullification. So you can see there’s a lot of grey area.
In this particular case, the two defendants say that they went to this facility with the intention of just recording conditions. Smithfield Foods, according to the defendants, had made a pledge that they were not going to use certain types of cages, and they were were there to document that this public pledge the company had made was not actually being carried out. They say that when they got there that the conditions were so bad that a couple of piglets were rescued.
The company didn’t actually know that these two pigs were missing until several months later when the video that was taken was published online, at which point 8 FBI agents got involved in the investigation. These two and a few other activists were prosecuted. Other activists took plea deals.
Wayne Hsiung and Paul Picklesimer, however, exercised their right to trial by jury. They argued that they had not actually removed property or stolen anything because the value of the animals was, in their argument, zero or less than zero to the company.
The highest value of these animals that was mentioned during the trial was $42.20 each. That was based on 10-12 week old piglets that were weaned. These piglets were not that old, they weren’t weaned, and there was evidence that they were injured and sick. Hence, the reason the defense argued that their value to the company was zero or less than zero. The defendants tried to get evidence of the conditions into the trial because they felt this was part of what exonerated them from breaking the law.
Interestingly, the judge had set aside only a week in total for this trial. He consistently denied the defendants permission to show their video. When they tried to show a still photo of one of the piglets, the judge wouldn’t allow it unless they physically used scissors to cut out around the piglet anything in the background that showed conditions of anything other than the piglet itself.
Moreover, during jury selection, there was one prospective juror who seemed to possibly be jury nullification-friendly and at risk of being struck. The defense “rehabilitated” this juror by eliciting more information through questioning that indicated that the juror could be fair and impartial and follow the judge’s instructions. So the judge initially let that juror stay in the jury pool. After he slept on it, however, the judge changed his mind the next day. He reportedly said that he could not bear to force the prosecution to use one of their precious peremptory strikes to get rid of this particular juror, so he decided to get rid of the juror for cause.
This trial took place in Saint George, UT, a southern Utah community not known as a bastion of liberal thought and one where there may have been some remaining hurt feelings because Smithfield Foods closed down a facility there. So lots of job loss probably wasn’t helpful to the accused.
But they did, in fact, win. Defendant Wayne Hsiung, the activist who physically removed the piglets and a former Northwestern Law visiting professor who represented himself at trial, said: “I don't actually want you to acquit us on a legal technicality. I want you to acquit us as a matter of conscience. There's a big difference between stealing and rescue.”
Nobody from the activist group in question has been able to speak to any of the jurors by the time of this report, but they may still make contact in the future and get a feel for their thought process. So we don’t know if it was jury nullification or perhaps that the jury was offended by the amount of information that the judge withheld from them.
The video that the defense wanted to show was not allowed to be shown to the jury, but an FBI agent who watched it was allowed to testify about it. So between that and having the physical picture cut up, the jury must have known that they weren’t getting the whole story.
And, of course, there was the legal argument that was made that these pigs were not “property” because they had zero or less than zero value. So it’s not clear how this was decided, but that is something I’ll be keeping on my radar.
Animal rights activists found not guilty on all charges after two piglets were taken from Circle Four Farms in Utah, The Salt Lake Tribune, 8 October 2022
Activists Acquitted in Trial for Taking Piglets from Smithfield Foods, The Intercept, 8 October 2022
Verdict Watch #SmithfieldTrial, Unchained TV, 8 October 2022
Oath Keepers Trial in Progress
The trial of five Oath Keepers members for alleged seditious conspiracy is currently in progress. I have this on my radar to keep an eye out for possible jury nullification primarily because of discussion about it on Twitter and people speculating about whether or not jury nullification could be involved.
And regardless of whether nullification ultimately occurs, this is another opportunity for us to glean lessons from a real life trial to help prospective jurors in the future serve successfully as fully informed jurors.
In this case, Stewart Rhodes, Jessica Watkins, Kenneth Harrelson, Thomas Caldwell, and Kelly Meggs are on trial in federal court in Washington, DC, another case where the jury pool isn’t necessarily overwhelmingly friendly toward the accused.
Per federal rules it is not being livestreamed online, nor can it be listened to via telephone, so we are pretty reliant on reporting to glean anything we can from that. I’ll be checking news on this periodically.
The one thing that stood out to me so far is that in the opening statement made by Stewart Rhodes’ attorney, Philip Linder, Linder did his best to slip in information informing the jury that the defendants faced significant prison time. He was, however, interrupted by an objection from the prosecutor. The judge agreed with the prosecutor as expected and sustained the objection.
From what I am reading, though, it sounds like it is possible that the message was successfully communicated to the jury, in which case kudos to the attorney for getting that in there.
It is ridiculous to say that jurors can’t even know if something is a felony or misdemeanor, let alone what is on the table as far as punishment. I can think of no other situation in life in which you are told to take an action that takes someone’s life in your hands, but don’t consider the consequences before you take that action.
Imagine if you had just consumed a large quantity of alcohol. Would anyone ever tell you to go ahead and hop in a car and drive with a passenger’s life in your hands without considering the consequences? No. You’d be held criminally responsible for that.
But in jury trials, we are telling jurors as a matter of habit, that they should not take into consideration the consequences of their actions. Just appalling.
‘I’m Only Here for the Violence’: Oath Keepers Member’s Patch Is Prosecutor’s Symbol of Group’s Threat Before and After Jan. 6 as Trial Begins, Law and Crime, 3 October 2022
Colston Trial Follow-Up
Finally, let’s revisit the Extinction Rebellion trial that you may remember from back in January if you joined us. Some folks in England were acquitted for knocking over and into a body of water a statue that was objectionable to them because it honored someone who was involved in the slave trade. The jury in that case acquitted them of charges of criminal damage.
Since that time, a group called Policy Exchange in the United Kingdom has issued a report entitled Did the Colston Trial Go Wrong?. In that report they have a lot of information on verbiage used by the judge to instruct the jury on what it was to do.
They had a lot of complaints about the judge giving latitude to the defense in the comments they made during their arguments, the directions to the jury, questions of the jury, and that sort of thing. So they have issued this report indicating that they would like to seem some changes that crack down on this latitude that allows the jury to function as the conscience of the community and to exercise their conscience in judging these cases.
The trial was referred to an appeals court to argue some points of law. Though this cannot overturn the acquittals, it can shape how similar cases are handled going forward.
In late September, the Court of Appeal ruled that the conduct of which the defendants were accused did not fall under the protection of the European Convention on Human Rights (ECHR) for their right to protest because the damage was significant. They differentiated this from damage that is minor and temporary, which they said is protected and does not warrant prosecution.
This was not the only basis on which the accused argued their case, nor does it have any effect on their acquittal. But it does seem to narrow the ability of others to argue this potential defense in future cases.
Colston four: protesters cannot rely on ‘human rights’ defence, top judge rules, The Guardian, 28 September 2022
Attorney General’s Reference on a Point of Law No. 1 of 2022, Court of Appeal (Criminal Division), 28 September 2022
Did the Colston Trial Go Wrong?, Policy Exchange, 13 April 2022
FIJA Feature
Once again, our FIJA Feature this week is our Fall Fundraiser. Please visit FIJA.org/give to make a donation. We are a little behind on our annual goal of $50,000. Currently we are creeping up on just 2/3 of the way to our goal with less than 1/4 of the year remaining.
Share this post