What Went Wrong in the Sonoma Trial

The six factors that led to the guilty verdict

Outside the Sonoma County courthouse

Going into trial in Sonoma, I predicted that we had a 75% chance of winning in court. This was a departure from the predictions I made in the last two open rescue cases. In Utah, facing off against the largest pig production company in the world, I thought the odds were 10-20%. (My co-counsel was even more bleak: “It’s hopeless.”) In Merced, CA, I thought the odds were up to 33% — 1 in 3. But the Sonoma trial was the one where we had the strongest law and evidence. Not only were the conditions for the right to rescue clearly met — an emergency (e.g., animals literally rotting and starving to death) that required immediate action — but we had legal opinions from distinguished lawyers and scholars, establishing this fact. Yet, I stand convicted by 12 jurors today, and am writing this from a solitary jail cell.

What went wrong?

I think there are six possible answers:

1. Defenses we had been allowed in prior cases (e.g., good-faith intent) were denied.

2. Key evidence — such as our reports to authorities — was excluded.

3. Our witnesses lost the battle of credibility.

4. We were denied the right to “impeach.”

5. We made a number of bad legal moves.

6. The defense’s moral appeal lacked the power to inspire the jury.

Before I dive into each of these answers, however, let me preface this discussion with an important clarifying point. The fact that something went “wrong” does not mean that the movement “lost.” The blow to this movement — and the suffering I will personally endure — will be an opportunity to “lose forward.” To take the energy and anger from an apparent “loss” and channel it for greater progress. But to do that, we must learn from our mistakes. That is what I hope to do here.

The courthouse hallway

1. Defenses we had been allowed in prior cases were denied.

The defense in the Sonoma trial was based on three main legal hooks: necessity, 597e, and good-faith intent. While all three are sound legal theories, backed by enormous scholarly weight, such as Prof. Hadar Aviram from UC Hastings and Prof. Kristen Stilt from Harvard, we expected obstacles on the first two. Judges in farm country have not welcomed a direct “right to rescue,” no matter its legal merits.

What genuinely shocked me, however, was the judge’s effective denial of our defense based on “intent.” Conspiracy, like many serious crimes, is an offense based on specific and unlawful intent. It is a felony precisely because there is something distinct about “organized crime.” But that is also why it is a complete defense to conspiracy if one has a good-faith belief in the legality of one’s actions. When we were initially charged with conspiracy, I chuckled. “There’s no way they can convict,” I thought. “We all believe in the right to rescue.”

I did not expect, however, a judge to change the law of conspiracy to undercut our defense. In particular, the court inexplicably narrowed the intent requirement for conspiracy to strictly a belief based on California Penal Code 597e, i.e., the desire to give animals food and water. This is not the law. Any good-faith belief is sufficient to defeat a conspiracy. And our actions at Sunrise and Reichardt were based on a whole host of legal authorities — including not just 597e, but legal necessity. The court in Sonoma, however, forced us to attempt to explain our actions by relying on a single statute — like trying to fit a square peg in a round hole. That left our defense legally deficient and narratively incoherent. We spent hours on silly questions about food and water, when the real issue was unlawful animal cruelty and neglect.

2. Key evidence – such as our reports to authorities – was excluded.

What made the ruling on defenses even worse, however, was how it impacted the court’s views on admissible evidence. We were forced to introduce all our concerns about animal cruelty through the tiny window of 597e. Animals being cannibalized? Rotting to death? Unlawfully caged? Did not matter. The only thing that was consistently allowed was evidence regarding food and water.

Things became even more absurdly difficult, however, because of two other evidentiary rulings. The first was the court’s determination that the actual conditions the animals were enduring, and other objective evidence, had no relevance to our intent. The court took the position that I could testify to my intent to help animals, but ruled that whether they actually needed help was irrelevant. This was bizarre. The credibility of someone’s stated intent always depends on surrounding facts. If I say I broke into a building to stop a fire, it’s highly relevant to determine whether there was indeed a fire. The court took a different view, and therefore excluded not just evidence of animal cruelty, but veterinary reports, government records, and even excluded the Sonoma authorities’ own findings of unlawful animal abuse.

The second category of evidence was corroborative evidence of intent. In a dispute between two parties, evidence that corroborates our good-faith beliefs is crucial to swaying a jury. But, bizarrely, the judge repeatedly ruled that such evidence would not be allowed. As a result, witnesses were severely limited in what they could testify about. For example, they could not testify about statements I had made that proved my intent, or our extensive efforts to contact the authorities about our concerns before the action. This, combined with the limitation on intent evidence to only 597e, left a broken and incoherent narrative for the jury.

3. Our witnesses lost the battle of credibility.

In two studies we performed leading up to trial, we found that credibility (especially of the defendant) was perhaps the most crucial variable in legal outcomes. Sadly, we also found that credibility was associated with race. A white-sounding name did twice as well as a Chinese-sounding name in simple credibility tests. (This is one of three primary reasons I go pro se; given biases against Asian and Chinese people, it’s crucial for me to build rapport with the jury.)

Unfortunately, there is another factor that was used to effectively damage our credibility: veganism. The prosecution consistently attacked our witnesses as weird extremists, and this “othering,” sadly, seemed to work. The net result is that a jury unanimously convinced itself that, not just me, but other witnesses like Almira Tanner, were lying under oath about our good-faith beliefs. This is disturbing, given that none of us, in fact, lied. But it shows how credibility can turn a strong factual and legal point into a weak one.

4. We were denied the right to “impeach.”

The credibility battle was made worse by the fact that we were denied the basic right to cross-examine the prosecution’s witnesses with clear evidence they were lying. Mike Weber, the owner of Sunrise, made a shocking number of false statements: that the company did not use battery cages, that there was no cannibalizing, and that there were no sick and injured animals at the farm. But in each of these instances, the court denied us the right to present rebuttal evidence on the grounds it was too remote from the facts of the case - and, therefore, would “prejudice” the jury.

In contrast, when the prosecution sought to introduce wildly irrelevant evidence to impeach our witnesses — e.g., events in Sonoma, and across the country — the judge had no problem with this at all. She even commented in one instance about how she was concerned about an action in Virginia organized by Matt Johnson in which pig manure was sprayed on a CEO’s lawn!

The result of this selective admission of impeachment evidence was that our witnesses were attacked with irrelevant and spurious questions, while I could not ask basic questions that were related to core issues in the case.

Facility owner Mike Weber holding a legal opinion on the right to rescue at Sunrise Egg Farm in 2018

5. We made a number of bad legal moves.

At least two elements of our legal strategy may have contributed to this lopsided battle over impeachment. The first was my commitment to the jury — as a matter of both principle and strategy — to be fully transparent. I rarely objected to the prosecution’s questions, and when I did, those objections were not sustained.

The second strategic decision was the choice to go pro se. The judge’s intense animosity towards me did not help us in evidentiary battles. And while it’s hard to say what caused the hostility, the decision to go pro se — especially with no other “real attorneys” to balance things out — may have backfired in this case.

6. The defense’s moral appeal lacked the power to inspire the jury.

None of these strategic and legal issues would have mattered, however, if we had been able to inspire the jury, With enough emotional motivation, they would have seen through the smoke and mirrors. Instead, not only did they convict on the offenses that the prosecution at least had some argument for, but they even convicted me of one crime — a violation of Penal Code 602(k) at Reichardt — that I clearly did not commit. If anything, it appears they were inspired to punish, not to have compassion.

One explanation for this is that our movement’s time hasn’t come. For decades, white jurors convicted people of color for all sorts of nonsense offenses, simply because public opinion was clearly biased. Perhaps the animal rights movement is in a similar place. That explanation is complicated, though, by the victories in Merced and (especially) Utah. If a rural, conservative jury in deep-red Utah can embrace animal rights, why can’t one in Sonoma?

The other possibility is that it’s not the message — but the messenger. And there is some truth to this. Months of infighting in the lead-up to trial had left me burned out and exhausted. I’ve written recently that I feel less persuasive than I’ve felt in 20 years. Perhaps there were things that could have been done to resolve the infighting that drained my motivation and my soul. The lesson, however, is the same. We need messengers who are up to the challenge. In this case, I fear, I was not. It’s a cautionary tale for future trials.

Rescuing hens from Sunrise Egg Farm in 2018

One of my favorite talks of all time is by a venture capitalist named Vinod Khosla, who funded JUST and a number of other vegan startups. The title is “Failure doesn’t matter. Success does.” In fact, it’s so good that you should stop reading and watch it now. Seriously, stop. It’s hilarious and insightful – and worth the interruption.

The title of the talk gives away the punchline. Too often, we are afraid to take risks because of “failure.” But we massively overestimate how bad “failure” is and underestimate the value of learning from failure to obtain ultimate success. Perhaps that’s easier for a venture capitalist to say, as his failures do not land him in jail. Yet, in the universe of consciousness, even my suffering is just a drop in the ocean.

There is another, more important message from Khosla’s talk: living by your values is a success in and of itself. Too many, especially in the legal and political world, are just living as cogs in a machine. When I am honest with myself, I see elements of that in my own life, and in the movement generally. It was becoming abstract. Distracted. Disconnected from our values.

Perhaps the most important success from this case is to restore my connection to those values. There is something about being denied your own freedom that helps you see the importance of fighting for the freedom of others. I spend 23.5 hours everyday in a solitary cell. For 30 minutes — 30 liberatory minutes — I can walk, shower, or try to call people I love. But that is 30 more minutes than a mother pig will get in her entire life.

From the fog of my own subjectivity, captivity has made the urgency of this moment clear. Freedom is the birthright of every sentient being. Yet, everywhere, animals are in cages and chains. For them — but for us, too — there is nothing more valuable on earth than freeing them from those chains. I have the Sonoma authorities to thank for reminding me — and our entire movement — of that.

Wayne’s hand-written pages from Sonoma County Jail. (Page 1) “What Went Wrong in the Sonoma Trial”

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