Three Things on my Mind as I Await the Verdict

Gratitude, asymmetric stakes, and the power of the right to rescue.

Courtroom sketch by Katya Gaidaeva.

What’s up this week

• The Sonoma Rescue Trial has been the most difficult court case of my life, and as I wait for the verdict, there are three things on my mind: gratitude toward everyone (even the prosecutor); a reflection on the “asymmetry of stakes,” i.e., the systematic advantage the animal rights movement holds in these cases; and hope for our message’s ability to break through, even when powerful forces are doing everything to silence us. There’s so much more to write about, but I wanted to give folks a quick update — and make these three very important points — given that I could be incarcerated within days.

• On the very day the case went to the jury, research proved for the first time that chickens had passed the mirror test for self awareness. I thought this was incredibly appropriate and even poignant, given that much of what is on trial in the Sonoma case is whether even the common chicken is a living being worthy of basic dignity. And the science is overwhelming: chickens are not just sentient, but have a sophisticated sense of self. How can we justify continuing to treat them like inanimate things?

• One of The Simple Heart’s co-founders, Dean Wyrzykowski, wrote a powerful autobiographical account of his role in the Sonoma County mass open rescues. One of the things Dean mentioned to me many years ago, that he learned from his work in open rescue, is that part of what you are trying to accomplish as a movement organizer is to create transformative experiences. He’s done that — in part by participating in such experiences himself. Give his account a read.

• Our monthly Open Rescue Advocates meeting is today at 5 pm in San Francisco — and this will be the last one before the verdict. I’ll be offering some final thoughts before my fate is decided this week and also give you an update on my next trial (regarding Ridglan Farms, in Dane County, Wisconsin), which has been delayed to March 2024. I hope you can join.

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From Exhaustion to Insight

As I type these words, I’m awaiting the verdict in the Sonoma Rescue Trial. For most of the past few weeks, the dominant feeling on my mind has been exhaustion. Exhaustion over the unrelenting effort, over the last 5 years, of my own government to put me in jail. Exhaustion over the theater of infighting — much of it promoted by the animal agriculture industry – that nearly undermined our legal defense before it had even officially started. Exhaustion over a series of rulings in this case that seemed not just profoundly unfair but that left us unable to tell the most basic components of our story, such as why we showed up to Sunrise Farms in the first place. (The judge strangely ruled that our investigations of animal cruelty and reports to the authorities were irrelevant to our intent. In fact, they were the entire basis of our intent.)

When the trial began in early September, part of me was ready to give up. Priya was in tears over the judge’s ruling that animal suffering did not constitute a legally-recognizable “emergency,” and shortly thereafter took a plea. The legal team that began with 6 lawyers had dropped to one — just me. The support staff was in disarray, due to the massive last-minute changes to the legal team, and I was forced to quickly draft new volunteers to assist with basic tasks such as preparing defense exhibits or creating basic procedures for jury selection.

And every day, I was going into court dealing with a new crisis or conflict — typically engineered by the prosecution. One day, the prosecution would accuse someone on the legal team of violating the gag order. The next day, they’d allege that we were trying to tamper with the jury. The judge would, almost universally, agree with these accusations, even when evidence was scant or nonexistent.

“You stand alone now, Mr. Hsiung,” the judge said on the eve of trial. I don’t think I’ve ever felt that as starkly in my 20+ years in activism.

And yet, as Carla Cabral and others made clear to me in the moments after that hearing, I was not alone. While I would be the only attorney and defendant left in the case, a wide array of people in the last few months have stepped up to defend, not just me, but the right to rescue. This includes the Bay Area animal rights activists who have mobilized outside of the courthouse on every day of the trial — changing the tone of the case with their smiling faces and kind words. It includes animal rights activists across the world, like Joey Carbstrong and James Aspey, who both made posts in support of the right to rescue from across the globe, and like Harvard Law School’s Prof. Kristen Stilt, who offered an important legal brief in support of the necessity defense.

joey_carbstrong

A post shared by @joey_carbstrong

It even included the American Civil Liberties Union and the distinguished Dean of UC Berkeley School of Law, Erwin Chemerinsky, who wrote powerful statements in defense of my right to free speech, after I was gagged from speaking to the media in the first days of trial.

Why I’m grateful to those trying to imprison me

As the trial went on, my feeling of exhaustion was replaced by a sense of gratitude to all these supporters. And while I am still tired and overwhelmed and utterly disillusioned at the state of the American legal system, I am also feeling hope from the people who kept pushing, when I did not have the will to keep pushing myself. That includes all of you readers, who have sent so many supportive emails and comments that, at times, it has left me in tears.

Here’s where you may be surprised, though: my gratitude even extends to the prosecutor in this case, Bob Waner, who has spent the last 5 years of my life attempting to convict me and other animal rights activists of crimes, and the judge whose rulings have undercut my ability to mount an effective defense. I am grateful because, without them, we would not get the chance to have an actual debate about animal rights. It is far worse to be ignored than persecuted. Every person — even our adversaries — has a role to play in this story. And without those roles, there would be no story, no dialogue, and no change.

Don’t get me wrong. Much of the argument presented by the prosecution in this case was, in my view, somewhere between unethical and preposterous — focused on attempting to demonize the animal rights movement in a way that has no bearing on the facts of this case. Defense witnesses were questioned about their “extreme” political beliefs, and confronted with evidence of disruptive protests they had previously participated in. Matt Johnson, for example, was repeatedly grilled about his more controversial activism, including spraying manure on the lawn of the Smithfield CEO, and impersonating factory farm executives on Fox News.

“Isn’t it true that you use deception in your activism?” the prosecutor Jessalee Mills asked. “And that you have even sprayed feces on people’s homes?”

The judge and jury did not look happy.

Of course, Matt’s demonstrations years after the Sunrise open rescue have nothing to do with this case. They were a blatant attempt to “otherize” me and other animal rights advocates, and cause the jury to see us as a threat. And yet, challenging those preposterous arguments in the court of law, is part of what we must do as a movement. We need to confront the caricatures of our movement and show ordinary people that our values are aligned with their own.

I would not be able to do that without my adversaries in court, including the prosecutor.

The Asymmetry that Drives Moral Progress

That brings me to the second thing on my mind: the asymmetry of the stakes in this case that gives the animal rights movement an enormous advantage. I mean that in two ways. The first way the stakes are asymmetric is that our people care much more about this outcome than the people on the other side. I counted exactly one court supporter, on the industry’s side, over the 7 weeks of trial. (Notably, this person, the executive director of the local Farm Bureau, was escorted into court by security, cutting in front of other people who would be excluded from the courtroom. There was no explanation as to why she should receive such favored courtroom status.) On the other side, we have had, by my estimate, at least 100 different people in court, of all ages, races, and creeds.

But the court support count is just one measure of the many ways that our side has an advantage in intrinsic motivation. The prosecution’s staff, witnesses, and attorneys are mercenaries for their side of this fight. Even the industry witnesses who have been called to testify appear to be doing so reluctantly. John Reichardt, the owner of the duck farm at which the June 2019 mass open rescue occurred, seemed somewhere between bored and annoyed when he was called to the stand.

On our side, in contrast, every supporter, volunteer, and witness has been intensely motivated, even inspired, to speak truth. There is an understanding that this case has importance far beyond the facts and specific parties, and that has motivated so many people to dig deep and push hard to do the best they can — in everything from witness preparations to preparing our videos and exhibits. What we lack in experience within the Sonoma County legal system, we have made up for, in passion and integrity.

But that leads me to the other way in which there is an asymmetry in stakes: we win even if we “lose.” For the prosecution and industry, they can only accomplish their goals by putting someone like me in jail. An acquittal, after hundreds of people openly walked into a factory farm and began taking animals out, would be a devastating public rebuke of the industry.

However, the defense can win by “losing forward,” even if we technically are convicted in court. The most obvious is the importance of an appeal. The most important legal cases in American history have been cases that were lost in the trial court. That loss in a lower level court generated a right for a defendant to appeal — and make a change in the nation’s understanding of the law. (This is what happened, for example, in the the Supreme Court case Bouie v. City of Columbia for two civil rights activists convicted of trespass for undertaking a lunch counter sit-in.)

The more important way we can lose forward, however, is by using conviction and possible incarceration as fuel for future change. Dr. Martin Luther King Jr. made the incarceration of activists a central part of his strategy in the Civil Rights Movement, leading to his famous Letter from a Birmingham Jail. Indeed, when his adversaries were effective, they tried to keep him out of jail, as they did in Albany, Georgia in 1962, when the local Chief of Police secretly paid Dr. King’s bail to ensure he could not use his incarceration as a rallying tactic. The civil rights activists deliberately chose Birmingham for their next campaign because they knew the militaristic public commissioner of that city, Bull Connor, would not have the wisdom to treat the activists with even the most basic level of respect, much less bail them out of jail!

One of the great failings of the animal rights movement, over the last 20 years, has been the inability to harness unearned suffering to similar effect for animal rights. But here is our great opportunity: even if we lose in court, we can win by recognizing the power of suffering.

This is true for me personally. I do not believe I will truly understand the urgency of this movement until I, too, am forced to live life in cage. Perhaps after I go through that experience, I will finally have some faint understanding of what animals go through in factory farms. Of course, I still litigated this case with an eye on courtroom victory. However, there are times when I genuinely wonder whether “winning” in court is actually what the animals need. This creates an asymmetry in stakes that our movement can use, if we are strategic — quite simply, by telling the story of someone sitting in jail because he wanted to take sick and dying animals to the vet.

The Power of Rescue

And that brings me to the last thought on my mind: despite an unprecedented effort to gag us, the message of rescue is breaking through. The mere fact that the jury has taken a week to deliberate, over what the prosecution and industry surely saw as an open-and-shut case, is a demonstration of that. But, more broadly, despite nearly every legal and evidentiary ruling going against us — despite an unconstitutional gag order placed on me and the other members of the defense team — the prosecution was still scrambling desperately to try to defend the industry. Because it is hard to defend the indefensible: cannibalism, rotting corpses, and animals left to languish and starve to death. And our clear and powerful message — that every animal deserves to be rescued from torment— came through strongly in the trial.

Every one of the open rescue cases has made me more confident in our movement’s prospects — even though they have also, at times, made me question my personal role in that movement. (Most obviously, the numerous criminal cases against me will very likely lead to my disbarment from legal practice in the months to come.) And that is true of this case, too. We were allowed to show only a single video of the investigation of Sunrise Farms, and only as a way to contradict the many lies told by Sunrise Farms owner Mike Weber on the stand.

At the close of his testimony he stated emphatically — almost yelling — that “there were no sick or injured animals at the ranch!” This opened the door for us to show a single video of what we saw at Sunrise in the months prior to justify our efforts to rescue. And yet even that single video, in the face of an avalanche of propaganda and distraction by the industry — fraudulent marketing, false testimony, and outright personal attacks — came through powerfully. It was not the worst video we shot. It was just one of hundreds of animals we saw in desperate need of care. And yet it showed what is undeniable: the animals need our help.

I believe our species is a compassionate species. Empathy is our superpower: it is what allows us to create, to cooperate, and even to survive. Our large frontal lobes have given us this extraordinary ability to imagine what it is like to be in someone else’s shoes.

Too often, the systems around us, and the limitations of our own cognitive ability, have prevented us from using this power. But there are moments in court when we capture it, almost like a superhero recognizing their abilities for the first time. And in each of our cases, I have seen evidence — sometimes just a faint glimmer on a juror’s face — that that is what is happening in court.

I do not know if that means I will be acquitted. I do not even know if that power will register for the people in this courtroom beyond the glimmer, and slightly moist eyes, that I witnessed when I shared stories such as the story of the bird above. (I left this poor creature to die at Sunrise Farms 11 days before our mass open rescue. I promised her on that day, however, that I would come back to rescue her friends.)

I do know, however, that the power of empathy cannot be denied. And as our systems evolve, inevitably, towards passing empathy’s greatest test — how do we treat those with the least power in our midst? — all living beings will benefit.