By Crescenzo Vellucci
The Vanguard Sacramento Bureau Chief
SANTA ROSA, CA – A bevy of defense witnesses—including screen and television star Alexandra Paul—took the stand here in Santa Rosa County Superior Court late this week in the trial of Wayne Hsiung, a lawyer accused of felony conspiracy in the “open rescue” of hundreds of factory farm animals in Sonoma County in 2018 and 2019.
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 is 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.
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 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, 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 testified to picking up the hen on the ground, only to discover later the animal was dead.
C. 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 whom 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 on 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 597e and the necessity defense.
Aviram testified that someone would have immunity under section 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 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 § 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 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 § 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 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.
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. https://davisvanguard.org/2023/03/jury-finds-baywatch-actress-and-bay-advocate-not-guilty-of-theft-for-rescuing-injured-chickens-from-outside-foster-farms-slaughterhouse/
