By Crescenzo Vellucci
The Vanguard Sacramento Bureau Chief
SANTA ROSA, CA – The prosecution and defense Tuesday gave closing arguments in Santa Rosa County Superior Court, and sent the jury off to deliberate on whether Wayne Hsiung – a lawyer accused of felony conspiracy for his role in the “open rescue” of 37 chickens at Sunrise Farms in May 2018 and 32 ducks Reichardt Duck Farm in May 2019 near here – is guilty under the law.
While the prosecution reportedly claimed in its closing the animal farms were “not on trial,” despite video and first hand testimony that animals were injured and suffering, the defense said the “why” the animals were rescued is what jurors needed to consider.
The jury was already “informed” throughout the trial – and particularly last Friday – with very graphic depictions of life and death inside the factory farms, and told by the defense why – legally and morally – the “rescues” were undertaken by hundreds of activists.
Only Hsiung is going the trial – others arrested took plea deals or had charges dismissed. Hundreds of activists allegedly participated in the action to “rescue” injured and dead animals, but some took plea deals and most were not even charged. 
Hsiung in the lone accused remaining.
Representing himself, Hsiung – facing two misdemeanors and two felonies and under a “gag order” to not talk about the case – testified parts of two days in the trial that has dominated the local court for the better part of two months.
The trial has taken up parts of two months, and featured defense testimony of about a dozen witnesses, including a film and television star, veterinarian and a university law professor, among others.
Hsiung told the jury Tuesday in his closing, according to a partial transcript provided The Vanguard, the question in this case focuses on the “why,” explaining, “What is important is why it happened. What was in my heart and mind. What was in the hearts and minds of hundreds of people on these days.”
The accused added, “The high level question of why…that goes back to the testimony of why me and many others in DxE took action…because all else has failed, that’s the philosophy behind direct action…you take nonviolent action not to harm anyone, not even adversaries, but to get to a reconciliation.”
Hsiung admitted he was transparent, and that “Almost all of the evidence the prosecution used against me, is coming from me.”
Hsiung’s was indeed transparent in his closing, telling the jury, “We did what we did because 11 days before the rescue effort at Sunrise, I saw this bird, half blind, unable to move away, unable to even jump up two feet to reach food and water and I left her to die. When I left her to die, that broke my heart.”
Hsiung also reminded jurors law enforcement and even Michael Weber, owner of Sunrise Farms, agreed to an inspection. He showed the jury body cam footage showing Hsiung saying to Weber, “We have a good faith agreement.” Weber replied, “We can make it work.”
But Hsiung added there “wasn’t an inspection or even a review of the materials given to them that day and instead they just checked the box,” on a police report to notify the CA Dept. of Food and Agriculture, who Hsiung charged “has a mission to promote agriculture. Not inspect them.”
Hsiung noted, referring to the activists in the Reichardt action, “If what was in their hearts was a crime, then I have the same guilty heart. But what was in our hearts was compassion and that’s not the worst of us, but the best of us. And if you look in your hearts, I think you’ll agree.”
The accused said that in an investigation he conducted with Paul Darwin Pickelsimer, and others they found “extreme animal cruelty,” noting that when he drove by the farm “we didn’t see green fields with chickens outside. We saw a massive industrial warehouse without so much as a window…we saw animals half blind, animals collapsed on the ground, animals embedded in cages still alive and animals unable to access food and water.”
Hsiung recounted how “Professor Hadar Aviram – who wrote a legal opinion about the right to rescue animals after watching footage from Sunrise Farms – said that activists seeing animals in this condition had the right to rescue them.”
“She testified that I never once doubted that I believed in 597e and other areas of law that indicated we had the right to provide food and water to these animals. Based on the specific conditions she witnessed at Sunrise Farms that we had the right,” Hsiung said.
Deputy District Attorney Robert Waner argued Hsiung and other activists believed more than providing food and water, that they had “an ideological alignment…transforming humankind’s relationship to non-human animals and they have set a very short time frame to do that.”
DDA Waner told the jury “Sunrise and Reichardt are relatively large operations, they involve large flocks of animals…there’s a certain amount of injury…there’s a certain amount of death…at these large operations.”
But he emphasized, “They are not some faceless corporation and the farms are not on trial here and Mike Weber is not on trial here and John Reichardt is not on trial here,” noting the activists were told, “point blank get out of there. You don’t have a right of anything. You’ve got no rights. Get out. Get out of here.”
Waner added, “I don’t think any activists went on the farm with the intention of violating any biosecurity protocols (but) Mr. Hsiung had one legal duty and that was to leave. But he did not leave did he?” He added, “This is a group intending to be peaceful.”
Deputy District Attorney Jessalee Mills emphasized repeatedly during the prosecution’s rebuttal the farms are not on trial and that the jurors need to have the big picture in the back of their minds– that DxE (Direct Action Everywhere) has a vision of ending animal farming.
She also said the ducks the activists were holding were “dead ducks” and they came from the pile, where the culled ducks go, telling the jury, “And again that is something we don’t like to see, but it’s the reality of the business and they’re not on trial for that.”
Court observers said the DDA “seemed to imply that only Wayne could perform the role he had the day of the Reichardt action.”
In all, Hsiung and 12 witnesses – despite the judge severely limiting who the defense wanted to call and what they could say to the jury – testified for the defense in the trial that has lasted much of the last two months, including weeks of pretrial motions and jury selection.
“All of the witnesses who participated in the actions at Sunrise Farms and Reichardt testified to their belief that they had the legal right to enter private property based on their review of legal opinions on the right to aid animals from either Professor Hadar Aviram or former federal prosecutor Bonnie Klapper,” according to supporters on their daily trial blog.
Matt Johnson, an organizer of the Reichardt action, testified Hsiung – although charged – did not have a role in planning a “lockdown” protest at Reichardt and, “in fact,” Hsiung discouraged him from organizing lockdowns, said observers.
When the prosecution noted, added the court observers, Johnson’s past activism and called his actions “extreme,” Johnson responded only, “I think they’re pretty reasonable considering the extent of the suffering.”
Dr. Sherstin Rosenberg, chief veterinarian at Happy Hen Animal Sanctuary, was court-qualified as an expert in veterinary medicine with a specialization in poultry, and reviewed the footage from Sunrise Farms in May 2018 and Reichardt Duck Farm in May 2019 – she said she didn’t know the source of the footage.
According to court observers, Rosenberg, as it related to the egg farm footage, said she saw chickens “too sick to walk, chickens with eye injuries from being pecked – which she said indicated overcrowding – and a deceased hen in a nesting box who she said had probably been dead and decomposing for a week.
Observers reported Rosenberg, regarding the duck farm footage, “described seeing ducks stuck on their backs, paddling their feet, with lesions that she said indicated they had been stuck on their backs on the hard, wire floor for hours if not days.”
A bevy of defense witnesses – including screen and television star Alexandra Paul – took the stand here in Santa Rosa County Superior Court earlier last week
Wednesday and Thursday, the defense called Almira Tanner, Alicia Santurio, Alexandra Paul, Dr. Andrew Sharo and Caroline Paul.
According to court observers, “all of the witnesses testified to their belief that they had the legal right to enter the Sunrise Farms facility under rights under California Penal Code 597e and their review of a legal opinion on the right to rescue animals.”
Tanner, a former felony defendant in this case, explained, after Hsiung asked why she showed a bird to a police officer, “This bird was dead…at this point the owner of the facility was saying there weren’t sick and injured birds. I showed this to the police— that they were incorrect…animals had suffered and were suffering inside the facility.”
Santurio, the defense said, had an extensive background in chicken handling from her work at a sanctuary assisting with large-scale rescues at egg-laying farms, and was, said Hsiung, qualified to give the required chicken care and rescue training prior to the Sunrise action.
And, as the head of a rescue team, Santurio said on the stand she witnessed deplorable conditions at Sunrise, stating, “I saw animals that were extremely thin and their feathers were unhealthy looking and, of course, dead birds, too.” The witness noted the rescuers had a van nearby they took birds to so the birds could get food and water.
Alexandra Paul (former “Baywatch” star), Dr. Sharo, and Caroline Paul were all animal rescue team leads at the Sunrise action, and the defense played a video was played to the jury which showed A. Paul outside of a barn, rescuing a hen that was slumped over in her arms.
When discussing the state of the hen, A. Paul testified, “Her comb was very pink and combs are supposed to be red. She was very lethargic in the cage, so it was clear that she couldn’t get to food and water.”
Dr. Sharo, questioned about why he “rescued” a dead, rotting hen – the picture of him holding the hen was shown to the jury – he told the court, “What I wanted is for the police and appropriate authorities to investigate the farm and if I could bring evidence of rotting animals then that would be compelling and cause an investigation.”
Another video the court allowed – the judge had initially ruled she wanted to limit these kinds of displays – indicated animal cruelty, and C. Paul, a retired firefighter and best-selling author, testified picking up the hen on the ground, only discover late the animal was dead.
- Paul admitted going back onto the property after leaving with the hen, claiming, “Our job wasn’t done yet and I had a legal right to go back in there and make sure that the animals that needed care that could get care were given care.”
While the judge put severe limits on who the defense can call, and what they can say in front of jurors, the court did hear earlier in the week from a law professor who supported Hsiung’s claim he should not be prosecuted for saving sick and injured animals under California law.
That’s important, said supporters, because the judge has allowed “mistake of law” as a defense, that Hsiung truly relied of expert legal advice and believed he wasn’t breaking the law.
As Hsiung noted in his closing, UC Hastings criminal law professor Aviram testified she had reviewed footage from Sunrise Farms and wrote a legal opinion about the legal right to rescue animals under 597e and the necessity defense.
Aviram testified that someone would have immunity under 597e if they trespassed to offer food and water to the animals in the videos she reviewed.
Aviram wrote, “based on my legal expertise as a criminal justice scholar and law professor, it is my opinion that an open rescuer who removes sick animals from this facility should be able to successfully argue for a necessity defense against any charges of trespass or misappropriation. In addition, a feeder (someone who gives an animal food) who provides for animals in this facility would be protected from criminal responsibility by the specific defense in §597e of the California Penal Code.”
The law prof added, “My conclusion is that feeders should be able to rely on §597e as defense against any accusation or charge of trespass. The section explicitly states that, under the circumstances described there, the entry unto the premises is ‘lawful,’” adding those – like Hsiung – who cared for animals in need, “may rely on §597e to obtain reimbursement from the facility owners for their expenses in providing the animals with food and water.”
“After watching the footage, I concluded that offering food and water to the animals in the video would have granted immunity to the person under 597e,” said the professor to Hsiung, adding, “That’s exactly what the statute says. The person doesn’t bear criminal responsibility for trespass.”
The accused took the stand Friday through early this week, testifying in the “narrative form” rather than question and answer.
Hsiung told the court that, starting in 2016 for about two years, he and others “documented,” published in social and other media and attempted to get authorities to take action on what they claim are “animal cruelty violations witnessed at Sunrise Farms.
Then, after speaking with Aviram, Hsiung said he was “convinced” California Penal Code 597e applies to any situation where a private owner of animals was leaving them in a state of neglect, including commercial farms. Hsiung provided to the court and jury a redacted version of Aviram’s legal opinion on the right to rescue animals, which he said he and other activists relied upon.
Hsiung, on the stand in his own defense, noted, “The important thing to remember when I think about that action is, as Dr. Lafayette told us, when you’re doing actions in the context of violence and oppression and what is literally a kill floor. I mentioned Dr. Lafayette’s advice to us. If you want to create change after 2018, you have to put your necks on the line…the other piece of advice he gave us that is on my mind today– you put your neck on the line but also seek reconciliation.”
Observers said they were also surprised last Friday when the judge, who had already ruled pretrial there would be no showing of animal cruelty footage to the jury, OK’d Hsiung’s airing of a video he took 11 days before the Sunrise action.
The video shows a hen with a purported tumor in her eye, unable to walk properly or access food and water, said Hsiung, who explained the eye injury and others he saw indicated what he believed to be pecking caused by overcrowding at the facility.
Hsiung, still on the stand, also played a video from the day of the rescue where a Sgt. Dave Thompson apparently “promised that they could walk through the farm to provide aid and remove any sick or injured birds.”
However, Hsiung testified that no inspection ever occurred, and he was told CDFA (California Dept. of Food and Agriculture) has jurisdiction over animal welfare issues. But, Hsiung testified, he was told on multiple attempts by CDFA they were “regulators, not criminal lawyers” and couldn’t enforce violations of Proposition 2 and California’s animal cruelty laws.
Court observers also told The Vanguard Hsiung also showed clips from the livestream of the Reichardt action where he asked activists what was going on, indicating that he did not know the action plan.
The accused said when activists asked him for legal advice during the Reichardt action, he referred them to Bonnie Klapper, who provided a legal opinion to him one day before the action. Hsiung said he reviewed the opinion and had a copy of it in his hands, but otherwise had limited involvement in its creation.
Judge Laura Passaglia McCarthy, who excluded key defense witnesses, and video, photographs and other evidence the defense had hoped to show why activists did what they did, has now allowed the defense wider latitude to show photos and videos of dead and injured animals in the factory farms that activists like Hsiung claim they had a right to rescue without breaking the law.
The judge said it would be too prejudicial to the jury for them to see the condition of the animals. Hsiung and some other witnesses will be allowed to describe the conditions they filmed or reviewed that helped form their belief that they could aid the animals inside Sunrise and Reichardt.
Excluded by the court were Dr. Laura Dixon, an animal scientist specializing in the poultry industry the defense intended to call as an expert witness, and Dr. Armaiti May, a veterinarian who made an assessment regarding animal cruelty at Reichardt Duck Farm in 2014. The judge said conditions in 2014 are irrelevant to the conditions in 2019, reported Direct Action Everywhere (DxE).
The judge did grant a defense request for Sunrise Farms and Reichardt Duck Farm documents of the conditions at their facilities, but agreed with the prosecution to a protective order, preventing the documents from being shared with the public.
Judge McCarthy also has prohibited evidence from an investigation and rescue at McCoy’s Poultry, and a Sonoma County Animal Services’ report that corroborates the defense’s claims of criminal animal cruelty.
The court has barred comments from previous co-defendants, other activists involved not charged and DxE animal rescuers who have been acquitted in other court cases.
The judge did, however, rule the defense could use “mistake of fact” as a defense in the case of Sunrise Farms, where the defendant said he did not believe he was being ordered to leave the premises.
And, the judge granted a defense motion allowing the use of the “mistake of law” defense under CA Penal Code 597e, which the defense has claimed gives it the “right to enter private property to aid animals deprived of food and water.”
More than 100 people affiliated with DxE were arrested on felony charges initially after, according to DxE, they provided “emergency medical aid” to “sick and suffering animals,” because, they claim, “county and state authorities ignored repeated reports of criminal animal abuse at these facilities.”
Hsiung, in opening arguments, said evidence used by the prosecution – including their videos and livestream – were provided by him and other activists, including their statements about what they did and why did it.
Hsiung told the jury his case is not about what happened, but why it happened and the intent by activists, emphasizing they intended to “aid animals” they believes were “legally entitled” to assist – their intent, he explained, was not to break the law by trespassing.
“We do everything we can to be transparent because you can’t fight the shadow with more shadow. You can only fight the shadow with the light,” Hsiung said.
Jurors were told by the defense – Hsiung – would show, as he noted, his intent was not to commit a crime, but “exercise” a legal right under CA Penal Code 597e that allows providing aid to sick and injured animals.
The accused added the intent was to follow the law non-violently, and that law enforcement said they would walk through the facility with activists to look for animal cruelty and remove sick birds.
However, Hsiung charged the officer didn’t keep his word and the farm was not investigated by police for violations of CA law.
Hsiung closed his opening argument by repeating that the “activists’ intent was not to commit a crime, but to exercise what they believed was their legal right to help even the smallest creatures found collapsed on the factory farm floor,” said supporters in court Thursday.
Hsiung’s charges, according to court documents, relate specifically to a May 29, 2018 rescue at Sunrise Farms, an egg supplier to Whole Foods and Costco, and a June 3, 2019 rescue and occupation at Reichardt, the largest duck farm in California.
DxE said its activists took action in “broad daylight to openly rescue animals, supported by a legal opinion on the right to rescue animals from abuse under the doctrine of legal necessity (now barred by the judge) and California law. They removed 37 sick hens from Sunrise and 32 sick ducks from Reichardt.”
The defense maintains the mass open rescue at Sunrise was “prompted by investigations that occurred in 2017 and 2018, which found that despite Proposition 2 banning intensive confinement, Sunrise was confining tens of thousands of birds in towering 15-foot tall rows of tightly packed cages, inside of which many were sick, dying, and dead.”
DxE charged investigators “found violations of California’s animal cruelty statute, Penal Code 597, including injured birds who were unable to access food or water.
DxE noted, at Reichardt Duck Farm, an investigation by Mercy for Animals in 2014, and another by DxE in 2019, “revealed violations of animal cruelty law, including diseased ducks left on their backs, unable to get up, and consequently unable to reach food or water.”
DxE. citing victories in trials of activists who did open rescues in St. George, UT and Merced, CA, said, “if this series of legal wins continues, it could open the floodgates to a new view of animals under the law: as legal persons, not property.”
It’s the second trial involving the “open rescue” of factory farm animals in California this year. In March, a Central Valley jury in Merced County Superior Court found Alexandra Paul, and San Francisco Bay Area activist Santurio not guilty of misdemeanor theft of two slaughterhouse-bound chickens.
Alexandra Paul and Santurio said they “rescued” two chickens, Ethan and Jax, from a truck in front of a Foster Farms slaughterhouse on Sept. 28, 2021 because the animals were suffering.
