The Complete Patient
By David Gumpert

An unlicensed organization like a food club is not only distributing “contraband,” but a “controlled substance,” in the view of a Minnesota prosecutor fighting to prevent dismissal of three misdemeanor food allegations against farmer Alvin Schlangen. In other words, if licenses aren’t purchased and regulators involved, food is no longer just food, it is in the same realm as oxycontin or morphine.

Image courtesy of By Pitcherman (Zenon niewada)
Image courtesy of By Pitcherman (Zenon niewada)

Schlangen’s lawyer, Nathan Hansen, had petitioned a court in Stearns County to dismiss three of six misdemeanor accounts against Schlangen because they are very similar to the three counts a Minneapolis jury acquitted him of last September–relating to illegal sale of raw milk and selling food without a retail license. Hansen labeled the Stearns County campaign against Schlangen “serialized prosecution.”

As evidence of the state’s intent to charge Schlangen repeatedly for the same alleged crimes, he included a memo from the Minnesota Department of Agriculture about Schangen that listed possible charges against the farmer and stated  the “violations…are chargeable as misdemeanor crimes in Stearns, Hennepin [where Schlangen was acquitted], and Ramsey counties of the state of Minnesota.” Hansen used as legal precedent a case in which an individual charged with several acts of reckless driving had multiple cases thrown out because they were part of the same overall incident.

In building on an allusion he made in a court hearing early last month that raw milk was “a controlled substance,” Stearns County prosecutor, William MacPhail, has expanded his argument, applying it to all unregulated food. He argues in a brief in opposition that the best way to examine Schlangen’s request is to compare it to “crimes involving sex, controlled substances and thefts.” MacPhail’s technical argument is that double jeopardy of the sort prohibited by the U.S. and Minnesota Constitutions applies only when a single episode of the same crime is involved. When separate incidents occur at different times and at different places, legal precedent doesn’t protect the defendant.

But repeatedly, the prosecutor makes a comparison between food and drugs, pornography, and theft. “In drug cases (and situations involving similar contraband as here) generally the possession of two controlled substances at the same time and place is treated as a single incident,” he states at one point.

He says later that he “has found no cases in which separate controlled substance sales, even if separated by only a short period of time and place, have been held to be part of the same behavioral incident.”

And then, “The case now before this Court has much more in common with the controlled substance, pornography, and theft cases than the cases dealing with reckless driving.”

Finally, MacPhail accuses Schlangen of seeking financial riches from his food club. “The defendant had as his sole motive the desire to sell as much contraband food as possible…in order to enrich his coffers.” As evidence, he points to evidence that Schlangen paid $3 a gallon to his farmer-supplier and charged food club members $6 a gallon. MacPhail, of course, ignores the various expenses Schlangen incurred in obtaining, packaging, and delivering product—so much so that he was on the verge of insolvency prior to his trial last fall.

What’s going on here is clearly a revving up of the food police’s fear mongering and character assassination in anticipation of a new Alvin Schlangen trial. It’s kind of like the Americans traveling in Europe asking directions—when the locals don’t understand what’s being said, the Americans simply ask their questions in a louder and louder voice. Will a jury be any more receptive to the prosecutor’s efforts to turn up the loudspeakers, and start thinking about food as a “controlled substance”? Doesn’t make a lot of sense, unless he thinks he can intimidate Schlangen into doing a plea bargain. Thus far, Schlangen has had ice running through his veins when dealing with prosecutors. I suspect the coolness will prevail, and we’ll see yet another jury trial of the Minnesota farmer.

**

Might Maine’s prosecution of farmer Dan Brown, as part of an effort to invalidate Food Sovereignty ordinances passed by eight towns in the state, be settled without a trial? There have been reports over the last few weeks of settlement discussions involving the state’s attorney general and Brown, who milks one cow. A Maine paper that covers several of the towns with such ordinances reports that Brown thought he was close to a settlement of the case—via installation of a rubber mat over his wooden floor milking area and painting his walls white– when the state (surprise!) changed the terms.

According to the paper, “Instead of painting the walls and installing a rubber mat on his wooden milking platform, as Brown said he was told in person, the [followup] letter required a cement platform, on cement blocks, cemented to the floor. The letter also stated Brown must assign lot numbers to milk and milk product containers to track which cow the milk came from. ‘We only had one cow at that time,’ Brown said. ‘It’s no one thing that’s insurmountable,’ Brown said. ‘It’s all these things [they] are asking me to do.’” Drip, drip, drip.

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