Editor’s note: This was written by a close personal mine who was at the trial yesterday. Links to complete story here.
Of all of the bullshit federal cases, this ranks among the bullshittiest.
The first couple of hours on Monday were jury selection. There seemed to be 50-80 potential jurors. They filed into the court, and back out, and back in, and back out, and back in, and back out, and back in. They finally seated a jury, 12 jurors and two alternates, eight women and six men. I have little doubt the federal prosecutor was adept at selecting the jurors most inclined to believe that Sam must be guilty or their federal government wouldn’t have charged him.
The prosecutor spent about 40 minutes describing the 13 counts against Sam and basically prejudicing the jury against Sam. That’s her job in her opening statement to the jury. I was eager to hear the federal government’s case against Sam and it was all about the rules. They told Sam what to do and he didn’t do it. The court told Sam what not to do and he did it anyway. Sam elected not to make an opening statement. This disappointed me. I had hoped that Sam would spend five minutes describing this case from his perspective. How his products hurt nobody, how he had tried repeatedly to satisfy the arbitrary, confusing and at times nonsensical demands of the FDA even though they imperiled his livelihood, etc.
The FDA’s first witness was one of the two FDA agents who had visited Sam at his Bath County property. He has a biology degree, taught middle school for a year and then took his job with the FDA. He sounded rehearsed and scripted. He repeatedly described being threatened, feeling threatened, etc. He even claimed that the Amish yelled expletives at him. It sounded ridiculous to anyone who has the first inkling about the Amish.
He also stated that the products were manufactured in a barn and it was not sanitary, a dog was wandering around the farm, and bees and other insects could fly into the salve and contaminate it.
Sam elected to have Mr. Fox his public defender cross examine the witness and he tore up the witness. He completely fell apart when unable to give well practiced and coached answers. His nervous mannerisms were of the type most people associate with compulsive lying.
He was asked to describe the supposed threatening behavior of the Amish, which I’m sure the jury already knew to be a lie. He was unable to cite a single example of a physical threat, other than to repeat his previous coached testimony that a younger Amish man rushed at him and the deputy restrained him. He was asked if the deputy arrested the man, presumably for attempted assault or something similar. No. Did he ask the deputy to arrest the man so charges could be filed? No. Do you know the name of the man who rushed toward you? No.
WITNESS: Well, this is Sam’s trial. That man isn’t on trial here today.
FOX: What about the verbal threats? What were these threats?
WITNESS: Mr. Girod said that the FDA only licenses drugs that kill people. The Amish were anti-government.
FOX: But what about the threats? Did anyone say they were going to physically harm you in any way? Punch you? Break your bones? Anything like that?
WITNESS: Well, they were anti-government and Mr. Girod said that the FDA approves drugs that kill people.
The same exchange occurred I think four times, with Mr. Fox asking what verbal threats were made and the FDA agent answering the other question with no verbal threats related. Mr. Fox asked Judge Reeves to ask the witness to answer the question and Reeves was no help at all. Still, the conclusion was obvious. The Amish made no threats, neither physical or verbal.
Mr. Fox asked the FDA agent if the products were tested for purity or to determine if contaminates were present. The FDA agent had already made a big deal about how they received two samples from Mr Girod, they noted the labeling and immediately destroyed the samples. It was an odd thing to blurt out once, and even odder to repeat. He had clearly been coaxed to establish this point, apparently as the FDA’s prior admission defense against this future line of questioning, but it rang hollow to me.
Mr. Fox asked why they destroyed the samples if they were concerned with contaminates, and why they didn’t test for contaminates if that was a concern. To me, the FDA looked at best incompetent and more likely as if they were making up charges against Sam after the fact with no corroborating evidence and only insinuation and baseless unsubstantiated accusations.
In general, the FDA agent’s initial testimony was weak sauce, and I think most jurors should be able to see that he was grossly exaggerating on many points and outright lying on the others, and under cross examination Mr. Fox removed any possible doubt that the FDA agent could only have felt threatened if he was afraid of his own shadow. At worst, the Amish raised their voices when the FDA showed up for an unexpected and hostile inspection.
I was pleasantly surprised by Mr. Fox. I generally believe that a public defender is worth what they charge, but this guy is good. Not necessarily in the stunning display of legal prowess, but rather in the manner of a seasoned home town lawyer who has a lot of common sense, and who speaks in a manner that a local jury will understand and appreciate. That’s much better than a slick high powered high dollar attorney in my opinion. This casts the team of FDA lawyers in sharp contrast as out-of-state tax paid big city lawyers and creates a strong sense of the local David versus the federal Goliath. After Sam had declined the important opportunity to introduce himself to the jury and develop a sympathetic understanding in an opening statement, I found myself hoping that Sam had reconsidered and had decided to allow the public defender to defend him. Unfortunately, that was not to be.
The second witness was another FDA employee. She had never met Sam but had taken over Sam’s case as a compliance investigator. She also testified about the labeling on Sam’s products that made health claims. This really seems to be the basis of the FDA case. In their eyes, if health claims are made by someone selling the product as part of the packaging or advertising, then the FDA regulates the product as a drug regardless of the contents.
No sensible person would read the ingredients of any of Sam’s three products and conclude that they are drugs in the common sense of that word. The FDA also exerts jurisdiction based on interstate commerce, which is the justification for most federal overreach and excessive regulation. They claim that Sam sold his products across state lines, and also that he bought beeswax from New York, and either of these would be sufficient to justify federal jurisdiction.
The FDA agent also described how the FDA had become aware of Sam’s products when someone (it seemed to be implied that it was a local or state government agent) in Missouri had alerted them that Sam may be selling unlicensed drugs. She also described the Missouri judge’s order to Sam to stop selling his products. Sam did not cross examine this witness.
The third witness called by the prosecutor was the Bath County deputy sheriff, Jesse Stewart, who was called as a friendly witness but didn’t seem very friendly to the FDA’s position. He was a Kentucky State Police officer for (I believe) 15 years, then worked as the Bath County deputy for a couple of years, and is now self employed.
He had accompanied the two FDA agents to Sam’s farm on their second visit when Sam refused their surprise inspection. The deputy refuted the first FDA agent’s claim of physical intimidation. He flat out stated that he did not restrain anyone and there was no young Amish man rushing at the FDA agents. He said the Amish were clearly not happy that the FDA had showed up and expressed this verbally, including raising their voices but not yelling. There was no physical intimidation and no verbal threats.
Basically, the FDA’s first witness had committed perjury. And this testimony was all under the FDA’s examination of their own witness!
I was hoping that Mr. Fox would ask several questions that would allow much more damaging testimony from the FDA’s own witness, but once again, Sam declined to cross examine the witness and apparently barred Mr. Fox from any cross examination.
The fourth witness called by the FDA was an Amish man from Indiana. He was called to build the case that Sam engaged in interstate commerce, including interstate commerce after a court order to stop selling his products. This was an interesting witness. He had placed 3-4 orders, each for a case of 36 tins of chickweed salve over the past 14 years. Sam shipped him the case of salve and the witness then mailed Sam a check for $252. Hopefully, the fact that Sam shipped the product in advance of receiving payment will be seen by the jury as evidence of Sam’s trusting nature and honest business practices. Every retailer I know is paid before shipping the products. A copy of one of these checks from 2014 was entered into evidence.
Obviously, the Amish man used the product and thought so highly of it that he gave it as gifts, which explains why he bought 144 cans of salve over the last two decades. The FDA introduced a very satisfied customer in their case to prove that they are protecting all of us from a greedy Amish capitalist. It’s just bizarre. Clearly the FDA had to subpoena the Amish man to secure his testimony against Sam, and he was testifying under some duress and coercion.
I know they need to make the interstate case, but this witness also seemed to hurt the FDA’s overall case, probably because the federal prosecutors are trying this case based on the technical merits and are not seeing it from the perspective that I hope this jury has. No victim, no crime.
At the end of the testimony, the prosecutor tried to coerce the witness into admitting that he wouldn’t have purchased the last case of chickweed salve had he known that there was a court order barring its sale, and even this weaselly tactic did not succeed. The Amish man’s internal struggle was obvious. He clearly liked the product so much that he was almost willing to defy a court order to purchase it illegally, even though his Amish beliefs prevent him from acting unlawfully.
It was obvious that the prosecutor had deliberately placed the Amish man in this moral quandary, and the prosecutor looked like a grade A jerk for doing it. Hopefully, the jury is able to infer that the FDA has placed Sam in a nearly identical moral dilemma, forcing him to choose between obeying a series of unjust federal bureaucratic proclamations or feeding his family.
Once again the FDA called a witness to make their case that seemed to be a character witness for Sam and a ringing endorsement of the safety and efficacy of his product, and once again, there was no cross examination that would have allowed this sympathetic witness to testify on Sam’s behalf. It seemed to be a great opportunity missed.
The high paid bumbling federal prosecutors are largely making Sam’s case for him, but the jury needs to hear from Sam, and in my opinion when the FDA’s own witnesses are hostile to the FDA, that should be exploited.
I’d say that Sam lucked into a good public defender and yet he seems to be preventing him from doing his job. [Editor: This is because the Amish are non-violent and non-resistant. We English have a hard time wrapping our brains around this!]
At 8:30 AM on Tuesday, judge Reeves will be meeting with the prosecution and defense to determine if Sam will be allowed to continue his “hybrid defense”. The judge seems very frustrated and angry that Sam fired the public defender, retained him as a legal adviser, and then allowed him to cross examine the first witness. I suspect judge Reeves is going to use tomorrow’s meeting to force Sam to represent himself, to prevent any future embarrassing wholesale slaughters of the federal prosecutor’s weak and highly coached witnesses.
Judge Reeves (imagine Richard Gere with a large stick up his butt) is completely in the tank for the FDA. We have a federal agency bringing a federal case in front of a federal judge in a federal court.That has justice written all over it. Reeves is a bit less biased sounding when the jury is in the court, but when they’ve been excused he doesn’t even pretend to be impartial.
He’s openly hostile toward Sam, and by proxy, anyone who dares observe the case because we are obviously on Sam’s side. They’ve done everything I can imagine to prevent any public review of the court proceedings. The courtroom is tiny. There are six benches in the back and two of them are designated to be empty, so at most 32 observers can sit in the courtroom if they’re extra chummy, with about as many more banished to stand in the hallway outside the court.
So far, the Amish have deferred to the English (not Amish) for court seating, under the belief that the jury needs to see support for Sam from the community at large and not just the Amish. Judge Reeves seems as if he would like to be presiding over a secret star chamber with no peasants allowed. I honestly think he’d prefer no jury in his star chamber as well. Judge Reeves is a federal judge. They’re not elected. It’s a political appointment, and it’s a lifetime appointment. There is no public accountability at all.
Reeves also admonished the jury on numerous occasions not to talk to anyone about the trial, not to do any research about the case, and to avoid the news or social media where the case might be discussed. He seems to understand that most of these federal cases are opposed in the local community, and that’s even more true of this case. He wants to ensure that the jurors are spoon fed the FDA’s case and they decide the verdict based on only the information that he can control in the courtroom.
Reeves also admonished the court watchers against speaking in any manner than might influence a juror. He repeatedly threatened jury tampering charges, a federal felony, with six months in jail and a stiff fine. He seemed eager to find someone in contempt of court for violating his rules, and he’s chomping at the bit to lock someone up for jury tampering.
After lunch, before the jury was allowed back into the court, the judge announced that he had received a report of possible jury tampering and he instructed the two FBI agents to investigate the case and apprehend anyone who had violated the court’s orders. I was confronted by these two FBI agents in the hallway outside the courtroom. They wanted me to walk with them, presumably out of earshot of anyone else in the hallway. I respectfully declined. They assured me that I was not in any trouble and they just wanted to ask me a few quick questions and when it was apparent that I didn’t want to answer their questions and I wasn’t going to voluntarily go anywhere with them they started asking their questions.
They were interested in the two women I saw holding #freesam signs outside the courthouse on my way back from lunch. Their questions were confused and confusing and I didn’t know how to answer because I wasn’t sure what they were asking, but I was aware that it’s very illegal to lie to federal agents although it’s not illegal for them to lie to us. When I finally realized they were interested in the two women, I told them that I entered the building at approximately 8:30 AM and 1:00 PM, and asked to which time were they referring? After lunch. They described the clothing the women were wearing. I told them that I saw two women holding signs.They wanted to know their names. I told them I didn’t know the women and didn’t know their names. I had seen them at a distance and realized that this was just the sort of “jury tampering” (aka free speech) that Reeves had warned us about. I nodded in their direction as I walked past them but did not break my stride and did not allow them to draw me into any conversation, for their good as well as my own.
If you don’t receive a trial update email tomorrow, please bake me a cake with a hacksaw blade in it and pay me a visit at the Fayette County Detention Center.
On a side note, I’ve watched a couple of other court cases in Lexington and been a juror approximately 15 years ago and this federal court is nothing like those other courts. It’s much more about control and impressing upon the peasants that the federal government is large and in charge. Wait in the hallway. OK, file into the court in an orderly fashion, single file, sit here. All rise for the jury. Be seated. All rise for the Honorable Judge Reeves. Be seated. The pomp and elaborate procedure is repeated when court is adjourned or in recess.
The metal detector security theater is even more elaborate at the entrance to the federal courthouse. Photo ID required, although not a federally certified Real ID driver’s license as I used my state issued concealed carry permit. Interestingly, the Amish are not required to produce any ID at all, so that’s not equal treatment under the law. The strictly enforced rules seem very arbitrary. No cameras or recording devices allowed in the courtroom, and this includes cell phones… unless you’re a lawyer or other officer of the court, because all animals are equal but some are more equal than others.
I really hate this entire process. As headache inducing nauseating and disgusting experiences go, it’s right up there with the Fayette County Republican Party conventions.
Look for a report tomorrow. Thank you, my friend, for being there and for such a detailed report.