By Crescenzo Vellucci
The Vanguard Sacramento Bureau Chief
SANTA ROSA, CA – After the prosecution rested late last week in the trial of a man who participated in an “open rescue” of hundreds of factory farm animals in Sonoma County in 2018 and 2019, the defense wrapped up its second day of testimony here in Santa Rosa County Superior Court Tuesday.
Hundreds of activists allegedly participated in the action to “rescue” injured animals, but some took plea deals and most were not even charged, leaving lawyer Wayne Hsiung alone to face the charges in a trial that began more than a month ago and has wound its way through pretrial motions, jury selection and now live testimony.
Representing himself, Hsiung testified parts of two days, after he was unable to talk about his case because of a judge-imposed “gag order.” He’s facing two misdemeanor trespass and two felony conspiracy charges.
While the judge put severe limits on whom the defense can call and what they can say in front of jurors, the court did hear 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, if Hsiung truly relied of expert legal advice and believed he wasn’t breaking the law.
UC Hastings criminal law professor Hadar Avriam testified he had reviewed footage from Sunrise Farms and wrote a legal opinion about the legal right to rescue animals under PC § 597(e) and the necessity defense.
Aviram testified that someone would have immunity under 597(e) if they trespassed to offer food and water to the animals in the videos she reviewed.
Aviram wrote that “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, representing himself, 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 Avriam, Hsiung said he was “convinced” California Penal Code § 597(e) 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, 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 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.
The defense is expected to soon call other witnesses, including Alexandra Paul, a screen and television actress (“Baywatch”), who was found not guilty for rescuing animals in Central California earlier this year.
After a series of protracted pretrial hearings in which the court gutted much of what the defense had hoped to use at trial, the defense it appears will have less it will be able to tell the jury about efforts to rescue hundreds of injured animals.
Judge Laura Passaglia McCarthy has excluded key defense witnesses, and video, photographs and other evidence the defense had hoped to show why activists did what they did.
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).
Passaglia McCarthy also said the defense’s Jonathan Frohnmayer, a lawyer and former defendant in the case, could only “testify about his observations at the demonstrations including what he saw Hsiung doing, but not about his personal experiences contacting authorities regarding animal cruelty,” said 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 section 597(e), 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—that it would show, as he noted, his intent was not to commit a crime, but “exercise” a legal right under CA Penal Code section 597(e) 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 section 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 Hollywood actress and “Baywatch” television star Paul, and San Francisco Bay Area activist Alicia Santurio not guilty of misdemeanor theft of two slaughterhouse-bound chickens.
Paul and Santurio, who are listed as defense witnesses in Santa Rosa, admitted 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. https://www.davisvanguard.org/2023/03/jury-finds-baywatch-actress-and-bay-advocate-not-guilty-of-theft-for-rescuing-injured-chickens-from-outside-foster-farms-slaughterhouse/
