By Crescenzo Vellucci
The Vanguard Sacramento Bureau Chief
SANTA ROSA, CA – After a month of slow-moving, snail-paced pretrial motions—most of which appear to have gutted the defense—the second trial involving the “open rescue” of factory farm animals in California this year began in chief Thursday here.
Animal rights activist and lawyer Wayne Hsiung—who until Thursday was unable to talk about the case under a court “gag order”—is facing two misdemeanor trespass and two felony conspiracy charges in in Santa Rosa County Superior Court for the open rescue of animals in Sonoma County in 2018 and 2019.
Hundreds of other activists allegedly participated in the action to “rescue” injured animals, but some took plea deals and many others were not even charged, leaving Hsiung alone to face the charges.
In March, a Central Valley jury in Merced County Superior Court found Hollywood actress and “Baywatch” television star Alexandra 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://davisvanguard.org/2023/03/jury-finds-baywatch-actress-and-bay-advocate-not-guilty-of-theft-for-rescuing-injured-chickens-from-outside-foster-farms-slaughterhouse/
Direct Action Everywhere (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 may not be that easy. Hsiung is proceeding to trial as his own attorney, facing multiple felony conspiracy charges for his involvement in mass protests where hundreds of activists openly rescued animals at factory farms in Sonoma County in 2018 and 2019.
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.”
The jury, which took about a week to pick, was seated Thursday—eight women, four men with three alternates (two women, one man).
In Deputy District Attorney Robert Waner’s opening statement, the prosecutor told jurors Hsiung and DxE activists believe that compassion should be extended to all animals, and said Open Rescue is the belief that if animals are in need of help, the law allows them to rescue those animals.
Waner, according to reports from the courtroom, described Hsiung as a “lawyer with impeccable credentials” and a “deeply thoughtful man” with “deeply held beliefs.” He also described the actions at Reichardt and Sunrise as “historic open rescues” and that DxE activists “believe compassion should extend to all sentient beings.”
Waner concluded by telling the jury that “this is a fascinating case.”
Hsiung began his opening statement by thanking DDA Waner for his “kind words,” but maintained this case is different than the previous actions.
The accused noted he was representing himself, what is in “dispute” is the “hearts and minds” of activists and the evidence used by the prosecution—including their videos and livestream—was 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 believe 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 he 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, according to supporters, explained “he did not have any involvement in planning the Reichardt action and in fact, the people charged with felonies for the Sunrise action were ‘walled off’ from being involved in the planning for Reichardt.”
The accused said he “connected activists with former federal prosecutor, Bonnie Klapper, who wrote a legal opinion stating that she believed, after reviewing Reichardt footage, that activists had a legal right to give aid to these animals under Penal Code 597(e).”
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.
But, 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 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 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 Passaglia McCarthy also has leaned out in favor of the prosecution in several other motions by the prosecution, said DxE, including prohibiting 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.”
The prosecution opposed the ruling, stating concerns about the “gruesome” images of animals that might be shown.
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.”
