What I Learned from the Smithfield Jury

A summit starting on Friday will bring insights, questions, and a recipe for hope and change.

In the history of animal rights, there has never been a court case where a jury has acquitted animal activists for openly rescuing animals from a factory farm. Until this past October, that is, when 8 jurors in Utah unanimously determined that Paul Picklesimer and I were not guilty for openly rescuing animals from the largest pig farm in the nation, Smithfield’s Circle Four Farms.

Now, for the first time, the world will hear directly from the jurors how that happened; lawyers, activists, and the jurors themselves will be joining a University of Denver summit, the brainchild of animal law professor Justin Marceau. And while I have a special reason to be interested in what we will discuss — my own freedom is on the line in two remaining felony cases — there is a bigger question that this summit will answer. It is perhaps the central question of our age: 

In a world filled with cruelty, how do we inspire people to stand for kindness? 

There has been an enormous amount of commentary breaking down what happened in Utah. From law professors, legal practitioners, journalists, to meat industry newsletters, it seems like everyone with a connection to animals or food has an analysis of the case. (Of special note, my co-defendant Eva Hamer, who will be going to trial with me later this year, recently published one of the best accounts of the trial. Check it out.) But, for the most part, these breakdowns have been speculative. Persuasion is more art than science, and no one had gone to the source: the jurors who had the historic decision. 

But now we have. Both I and Prof. Marceau have separately interviewed jurors regarding the case. (Marceau has done so much more thoroughly than I, and I am eager to see his notes!) And what we have already learned is fascinating: for example, the testimony of the person we saw as perhaps our strongest witness, turkey farmer Rick Pitman, who took the stand to defend the right to rescue, was apparently not that important to winning the jurors’ over. What was important? It’s too early to say, for sure. The jurors will speak publicly for the first time at 5 pm Mountain Time on Friday and will take the participants’ questions. (Livestreaming is apparently still being negotiated.)

Turkey farmer Rick Pitman is a dear friend, but jurors indicated that his testimony was not crucial.

Even when they give their answers to the central question above, however, it’s not always the case that people understand why we do what we do. There is a common refrain in social science that self-reports are the least reliable form of evidence. This dovetails with the ancient Buddhist principle: that the challenge to “Know thyself” is the most difficult and important problem in human existence. 

Nonetheless, the interviews I have done — combined with personal observations at trial, and a few novel studies we performed of potential jurors before our trials in North Carolina, Iowa, and Utah — have led me to conclude that there are are a number of insights that all of us can use in inspiring the people around us to stand for compassion. I’m excited not only to share these insights with the people joining us in Denver, but to refine (or even abandon) them based on discussions with the jurors.

Don’t hide the ball

From Day 1, the prosecution in the Smithfield case used a strategy of “gag and suppress.” This was unusual for a criminal case. Generally, it’s the defense in a criminal case that’s trying to prevent facts from coming forward. But in the Smithfield trial, the usual roles were reversed. The prosecution argued, under Rule 403 of the Utah' rules of evidence, that showing the jury our evidence of animal cruelty would be so “prejudicial” that it would distort their legal judgment. That rule, which has an equivalent version in federal and other states’ laws, is so discretionary on the part of judges that it makes a mockery of the the notion of “the rule of law, and not of men.” After all, the question of what is “prejudicial” and what is “probative” will often determine the answer to the problem.

To the industry, animal cruelty is “prejudicial” — irrelevant and propaganda by the animal rights movement. To animal advocates, in contrast, it is highly “probative”; indeed, it is the most important set of facts when one examines the production of animals for food. The prosecution in this case hoped to use Rule 403 to determine the trial outcome before it had even begun, by framing the case as one of simple burglary.

The Attorney General of Utah made a point to cover up animal cruelty at trial.

While the aggressive effort to gag evidence was both unusual for a prosecutorial team, and highly arbitrary, there was another sense in which it fit with the spirit of the case: the industry, also, relies mostly on hiding things from the public.

But one thing we learned from this case is that, if we are able to show that things are being hidden, then we can win — even if the effort to hide is mostly successful. The key is to demonstrate that people aren’t being shown the truth. We did this with strategic objections, efforts to introduce evidence that we knew were going to fail, and a thoughtful but careful opening and closing statement. The result is that the jurors we’ve spoken to universally felt that we were the side that was more candid and credible.

There are things for all of us to learn about this. Too often, when we advocate for animals, or some other cause, we try to avoid certain subjects. We don’t like talking about indigenous people killing animals, or the perception of animal rights being a “white thing,” or the shockingly bad reputation that vegans have with the public. This is a mistake. People are thinking about these things, whether we bring them up or not, and it’s best to get out ahead of these perceived weaknesses rather than hiding the ball.

Command the factual details 

The jurors consistently indicated that they were impressed by how much command we had of the facts of the case. We presented, with credible evidence, the mortality rate of piglets in farrowing facilities (14%), the number of pigs at Circle Four (1.2 million), and even the number of pounds of dead animals in a local landfill (nearly 20 million pounds, annually). In a world of talking points and fact-less opinions, this command of factual details was important. Multiple jurors mentioned that they believed us, when we said that Lily and Lizzie were going to be thrown away, because we had a command of the facts.

This is not to say that ethical argument is not important. (See below for more on this). But too often, our ethical arguments are grounded in factual vagueness or even error. The number of times I have heard an animal advocate assert, with relatively little evidence, that eating animals is unhealthy is surely in the thousands. The problem with these sorts of vague factual claims is that they undermine even the claims we have a stronger foundation for. We did not do that in the Smithfield trial, and I think it’s one of the reasons we won the jurors over.

Know your audience

It’s shocking to me how often that advocates make the same pitch to everyone they’re talking to. This is one of the few guaranteed strategies for failure. Persuasion requires adaptation and innovation, not stagnation. And the most important way to adapt and innovate is to know the audience you are talking to.

This is not to say that we should manipulate people. The difference between adaptation and manipulation is that the former involves deception; the latter involves an authentic approach, but one adapted to the specific audience. For example, when I am speaking to Christians, I will cite Matthew Scully’s Dominion, a powerful Christian statement for animal rights. I won’t do the same if I’m speaking to an atheist. This is not because I think Dominion is a lie. I think it’s a great book, and I would encourage everyone to read it. It’s just not the right book, or argument, for everyone.

Matthew Scully was chief speechwriter for President George W. Bush — and a powerful animal advocate.

In the Smithfield trial, we reached out to numerous lawyers, Mormons, and members of the Utah and Beaver County public to have an understanding of how our juror might think about the various aspects of our case. Even the most trivial of research — for example, looking at the political leanings of people in Southern Utah — can take you a long way! But perhaps most interestingly, we also did a study of a few hundred random members of the public (sampled from a demographic as close to Southern Utah as possible). We tried different messaging approaches to determine which would have the most powerful impact. And we learned some incredibly important thing: first, that believing the animals had no commercial value, because of abuse or neglect, was important to most jurors who voted to acquit; and second, that the most gruesome animal cruelty evidence was not necessary to making this showing. Indeed, in our study, the most gruesome cruelty evidence actually backfired!

This study was one of the reasons we focused so much on the value of the pigs at trial. And all the jurors we’ve spoken to indicated to us that this was a winning strategy.

That does not mean every member of the public will respond in the same way. The people of Southern Utah are a conservative, business-oriented, and industrious people. A focus on commercial value, or the lack thereof, might not work in Berkeley or Portland, where anti-capitalists reign. But the key point is that, before you even start making change, you have to know your audience first. Don’t just repeat the same talking points. Don’t just think about what works for you and your friends. Dive deep into your audience, and find the messaging that is both authentic AND adapted to the person or group you’re talking to.

Preach for people, not against them

One of most common mantras of the animal rights movement is that we should avoid being “preachy vegans.” The idea behind this is that, by focusing on the moral case for animal rights, we inevitably antagonize people who are eating animals, rather than win over their support. It’s one of the reasons Vox, among other sites, has published stories like “Why do people hate vegans so much?” with data showing that vegans are less popular than anyone other than drug addicts.

And yet I did plenty of preaching at trial, and we won. Indeed, in my closing statement, I explicitly appealed to the conscience of the jurors. I did not disguise my loathing of the industry and its cruelty, or my intense ethical objection to the slaughter of animals.

How do we square that, and the trial result, with the data on “preachy vegans?”

Quite simply, I preached for the jury, and not against them. The difference is that my “preaching” was not a statement of condemnation but a statement of faith. I told the jury, in short, that I believed in them, and the power of their compassion.

I was struck by how both the jurors I spoke with remembered my exact line (“Your decision will make this world a kinder place  – even for a sick baby pig.”) in recalling the key moments of the trial. The same can be true for your advocacy. Find a way to believe in people — in their goodness, their integrity, and their compassion — and the moral case will become exponentially stronger. Human beings love strong moral statements, but only when made by someone on “our team.”

Show the people around you that you’re on the same team, and suddenly, being a preachy vegan will be a virtue rather than a vice.

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I don’t know if these insights are right, at least insofar as the jurors from the Utah trial are concerned. I plan to ask the jurors if they are. I am sure their feedback will help me refine my approach, regardless of the specifics above.

What I do know, however, is that our efforts are working, whatever the cause.

And so the most important insight from this trial, and that I think will come out in this summit, is that the world is changing.

It will take effort to drive that change forward. Every moment of lost time feels like a crisis, as more and more animals are dying, more and more precious individuals (and entire species) exterminated from the face of the earth forever. But gatherings like this summit will help us learn, and build, and connect with one another in a way that will make change both faster and more powerful. Of that, I am sure.

And the fact that 5 random members of the Utah public are joining us, after making a decision that will reverberate in animal rights history, is proof of that.

Stay tuned for more.