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The Trial: FDA v Samuel Girod Day 3 (Final)
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If you don’t know the story, start here. Ignore all links to kyfreepress, those posts have been moved here.
The final day of Sam Girod's trial consisted of Sam calling one witness, himself, the prosecutor's closing arguments, Sam's closing arguments, jury instructions, jury deliberation, and the reading of the verdict.
We've been waiting the entire trial for Sam to defend himself. Because Sam represented himself, it would look silly for him to ask himself questions, so Sam wrote the questions for himself in advance, the public defender posed the questions to Sam, and Sam answered each question in his own words. There were approximately four or five questions. Sam described himself and his family, a wife, 12 children including five boys still at home, and 27 grandchildren. He described the start of his business. In 1999 he watched his mother cooking chickweed and became intrigued by the herbal properties as this subject has always interested him. He made approximately a gallon of chickweed salve and gave most of it away to friends and family members. He initially had no intention to sell any products, but he was urged to do so by people who were pleased with the salve.
Sam described the FDA coming to his home in Indiana and objecting to the skin cancer claim so he removed that from the label. Sam asked if they had any other concerns and was told they would like to think about it for a week. They never responded. After a few weeks, Sam contacted them and they didn't reply.
Sam refuted the claim that the Amish were physically intimidating. He explained that they would never intimidate or threaten anyone. Anybody with even a passing familiarity with the Amish would know that to be the truth. He also stressed that nobody cursed at the FDA agents, as that is something they do not do.
Sam stated that he never harmed anybody and never acted to deceive anybody.
Sam explained that he never threatened or intimidated Mary Miller to prevent her from providing evidence to a grand jury. They had discussed the matter because she had no prior dealings with the FDA and in fact that was the last thing this Amish woman wanted, and Sam felt bad that his actions had inadvertently drawn the FDA's attention to Mary. Sam followed up with a letter to several customers and business associates in a letter addressed to "Friends". He stated in the letter that everyone was free to do whatever they wanted to do. From the federal government's perspective it was inappropriate for Sam to contact them, but he was reaching out to confused and very worried friends with whom he had a close personal business relationship. He was trying to explain what was happening to the best of his understanding. A subpoena from the federal government is a terrifying thing to an Amish person. It was obvious from the testimony of all of the FDA's subpoenaed witnesses that they did feel threatened and intimidated... by the FDA. They were clearly on Sam's side, even though they were being compelled to testify against him.
Sam admitted to receiving the letter announcing his status hearing, but he didn't understand that he was required to attend the status hearing. Previous letters specifically instructed Sam to appear but this one did not. Sam believed this status letter to be informational, so he could attend if he chose to do so. To him, it seemed like the announcement of a procedural meeting pertaining to his case that constituted internal court business. Sam became convinced that he was not going to get a fair trial in this court and filed a motion to have his case moved to the 6th Court of Appeals. He had a manager at the 6th Court of Appeals sign when he filed his motion. After that, Sam considered his case to be in the appeals court. When he received a letter from the US District Court, Sam marked RETURN TO SENDER on the envelope and returned it unopened, believing that the district court had not yet been notified of the change of venue by the appeals court.
When the problems first surfaced with the FDA, some time around 2003, Sam hired a lawyer and his lawyer hired an FDA approved lab to test Sam's products. The FDA also tested Sam's products in their own lab using liquid chromatography and mass spectroscopy. Both labs reached the same conclusions. The ingredients matched the label's ingredients list, the samples did not contain any drugs as commonly defined or any alkaloids or poisons, and the samples from different containers of the same product were consistent. In 2003 and 2004, the FDA requested more label changes and Sam made the changes, removing all health claims and only listing the ingredients on the label.
Sam's testimony made a few points that needed to be made to indicate what he was thinking and why he did what he did in good faith and with malice toward nobody, but the information was presented in a seemingly random order and was not very compelling, particularly after the prosecutor had spent two days, unopposed, maligning Sam as a greedy lawless profiteer whose unregulated products were dangerous.
SAM'S CROSS EXAMINATION
Ms. Smith, the prosecutor, asked Sam about Betty Nap, whom she claimed had used one of Sam's products to treat cancer and her cancer became worse. We never heard of Betty Nap until this point. There were no claims about anybody being harmed and the prosecution had previously stressed that this wasn't the issue in this case. If someone had actually been harmed, why wasn't the victim testifying in court? At the very least, why wasn't there any evidence to demonstrate there was an actual injured party, and thus an actual crime?
The rest of the cross examination was a rehashing of the rules that Sam didn't follow. She ended with some verbal judo designed to make it appear that Sam had lied about not having harmed anyone, based on the mysterious Betty Nap and one diabetic who had at some time in the previous ten years tried chickweed salve on a foot lesion and didn't think it helped so he tried something else. Apparently, one claim of inefficacy is tantamount to harm in the prosecutor's eyes. It's a very good thing for the FDA that their prosecutor's standards aren't applied to FDA approved drugs, MANY of which cause real harm, up to and including death... daily.
Sam did not elect to redirect to clarify the murkiness created by Ms. Smith's cross examination. The format wasn't conducive to a redirect, because Sam would have needed to write the questions for the public defender to read while court was in session and that delay would not have been allowed.
PROSECUTOR'S CLOSING ARGUMENTS
Without any victim of Sam Girod's alleged crimes, Ms. Smith repeatedly stressed that Sam had not followed the rules. This trial was all about following the rules. She stated that the United States is a nation of laws, and when she referred to laws, she was referring not to any natural law or even any rule of conduct codified into law by our elected representatives. All of Sam's problems with this FDA were ultimately the result of administrative laws, which are rules created by the unelected bureaucrats at the FDA, which are then enforced as if they were laws enacted by an elected legislature.
Ms. Smith then proceeded to summarize the case against Sam by listing each of the successive counts against him and providing an imaginatively biased summary of the government's evidence against him.
Counts 1, 3, 12 and 13 were the non-labeling counts against Sam that developed from the initial problems that Sam had with the FDA based on their claims that his products were drugs and they were mislabeled. The non-labeling counts resulted from Sam refusing the second and unannounced inspection of his farm. The witness tampering count was based on the letter that Sam sent to Mary Miller attempting to explain the FDA's actions to this Amish woman. The failure to appear count was for not appearing at the scheduled status hearing when Sam had filed to have his case heard in the appeals court. There was a count for failing to surrender himself to be jailed while he believed his case was before a different court and he was under the protective custody of the local sheriff. The other nine counts against Sam were the direct result of the FDA's claims based on mislabeling, and were generally the same counts repeated for different customers of Sam and at different times. In the legal definition of the FDA, the products were considered to be mislabeled because they were not manufactured in an FDA registered facility. This is a similar legal redefinition of a common English word as the FDA's claim that Sam was manufacturing "drugs" based on the fact that some health claim was made. They persisted in classifying Sam as an outlaw unregulated drug manufacturer long after Sam had removed all health claims from his all natural herbal products in a futile effort to disentangle himself from the FDA once they had their hooks into him.
Sam placing orders for new labels and raw goods to make more chickweed salve were offered as evidence that Sam was willfully non-compliant with the court ordered halt to his business activities.
Ms. Smith did have a nice slide show presentation, so our federal tax dollars did go for something.
Her entire case was predicated on Sam not following the rules. She was unable to produce a single witness claiming to have been harmed by Sam in any way. In fact, the witnesses she subpoenaed to testify against Sam by showing they had been Sam's customers, wholesaler, supplier and label printer were all clearly angry with the FDA for persecuting Sam, not to mention the adverse impact the FDA's actions had on their own businesses and the disruptions to their own lives. They were obviously Sam's friends. They were his satisfied customers and his willing trading partners who had enjoyed a mutually beneficial relationship with Sam. They were also the very real victims of the FDA, although to a much lesser degree than Sam. The FDA produced victims in this case, but they were all victims of the FDA, and not of Sam Girod.
SAM'S CLOSING ARGUMENTS
Sam's closing arguments rambled through the few points from his recent defense testimony, describing that he had lived a quiet life on 100 rural acres and started making chickweed salve with no intention of selling it. He gave it away for 8-12 months. Sam restated that he acted in good faith and with malice toward nobody, and nobody was harmed by his products. The information was presented in a seemingly random order and without substantiation because he had not cross examined the FDA's witnesses who were hostile to the FDA and could have provided support for Sam's case. Sam described how he removed all skin cancer claims at the FDA's request even though he clearly believed the claim to be true. He reiterated that nobody was harmed by his products and he had many satisfied customers. He stated that there is nothing harmful in the chickweed salve. He described emphasizing to Mary Miller that he didn't want her to get into any trouble "on account of my stuff", and this was what the prosecution claimed was federal witness tampering, a felony with a penalty of 20 years in prison and a $250,000 fine.
Sam made simple declaratory statements of truth.
"There was never an injured party in this case."
"I'm not dealing with drugs. Their testing will show that."
"I did not purposefully or knowingly violate one law. That's not what I do."
"I changed the labels on different times but I kept getting harassed."
"Most of all, it's taken some of our freedom away."
Ultimately, Sam's closing argument was not as compelling as it could have been. The FDA dermatologist had testified that the FDA approves drugs based on a strict risk/reward basis, maligning Sam's products and implying they wouldn't have been approved on that basis. Sam could have recounted the great harm caused by FDA approved drugs to demonstrate that their regulation is not protecting the public. Sam could have compared the risk/reward ratio of his chickweed salve which had documented benefits to many people and harmed nobody with the FDA approved drug Latisse. This drug is FDA approved for the purpose of growing longer and fuller eyelashes. The FDA required label lists known side effects including blindness and birth defects. You're blind and your baby is deformed, but your eyelashes are to die for. In fact, the FDA approves a great many "lifestyle drugs" with serious side effects because that is in the best interest of their large pharmaceutical "customers", to use the FDA's own terminology from their internal emails. This is the agency that has relentlessly persecuted Sam Girod, and they were all well paid with millions of our tax dollars for this persecution of a peaceful and hard working Amish farmer who made herbal salve that harmed nobody... but he didn't follow the rules.
INSTRUCTIONS TO THE JURY
Judge Reeves explained to the jury, "You are required to follow the instructions I've given to you even if you disagree with them." He then went through a 49 page set of jury instructions, laboriously explaining each individual count. The mislabeling counts were mostly the same, repeated for different incidents. These counts had multiple allegations and it was sufficient for each juror to find Sam guilty of at least one of the allegations and the jurors do not all need to agree on any single allegation. For example, one juror could accept the FDA's claim that mislabeling occurred because the product label did not contain an accurate list of the ingredients, another juror could believe that mislabeling occurred based on the FDA's claim that the product was manufactured in a facility that was not registered with the FDA, a third juror could agree with the FDA's claim that the product was mislabeled because it could be harmful if used as directed, and a fourth juror could believe that the product was mislabeled because the directions were insufficient for the average lay person to understand how to properly use the product, and Sam could be found guilty of mislabeling even if each juror only believed a single allegation that no other juror accepted.
The jurors must agree unanimously that Sam is guilty on each count, or must unanimously agree that Sam is not guilty on each count. The judge did not explain what would happen if the jury was unable to unanimously decide guilty or not guilty, but this would have resulted in a hung jury, and that was probably explained to them at some point or otherwise known to them.
For most counts against Sam, the jury also had the option of finding Sam guilty of a misdemeanor version of the felony count if they believed that Sam was guilty of the accused crime but had not acted with criminal intent. This would allow the prosecution to secure a lesser guilty verdict even if the jury believed that Sam had not knowingly done anything wrong, as could easily be the case for an Amish farmer who unknowingly violated some arbitrary and probably nonsensical rule enacted by FDA bureaucrats.
The jury was instructed not to consider the penalties, and were in fact told that any consideration of the penalties for these alleged crimes would violate their oath as jurors. Clearly, the judge did not want any reluctance in the jurors' minds, lest they have a pang of conscience and guilt when sending an Amish farmer who had harmed nobody to prison for life for violating some arbitrary rule of a federal bureaucrat and becoming ensnared in a persecuting process that ultimately resulted in thwarting the will of a federal judge. Judge Reeves did not want the jury considering the morality of sentencing a harmless grandfather to prison for 20 years for sending a letter to an Amish friend who was worried about a federal subpoena. He didn't want the jury to know that the federal prison system deliberately moves prisoners far out of state to serve their sentence to discourage the prisoners' families from visiting them, which would be a particularly burdensome hardship to an Amish family. The jury is only to consider the matter of guilty or not guilty. The judge will decide the sentencing, and after Sam attempted to have his case reassigned to the appellate court because it seemed obvious to him that he wasn't being treated justly in judge Reeves' court, judge Reeves would be unlikely to be lenient in pronouncing Sam's sentence.
The jury was sent to the jury room where they ordered lunch and deliberated for approximately four hours.
The officers of the court appeared nervous when the 32 court watchers filed into the court to hear the verdict, with a small overflow crowd in the hallway outside the small courtroom. We were repeatedly warned to maintain order, no matter what they verdict may be. They are apparently not too accustomed to having the public take any interest in these federal court cases, and they seemed to be anticipating a guilty verdict and an angry mob, even though most of the court watchers were Amish and none of the court watchers had demonstrated the slightest evidence of prior misconduct.
The jury returned guilty verdicts on all 13 charges. Not only that, but they found Sam guilty of each separate part of each count, even when only one part would be needed to make Sam guilty of that count against him.
The jury was polled and asked if the verdict as read represents their verdict in this case, and each answered, "Yes."
The judge will sentence Sam at 10:00 AM on Friday, June 16th 2017. Until then, Sam will presumably be incarcerated in the Fayette County Detention Center.
Sam requested home release until the sentencing hearing and he was denied based on his previous fugitive status, and his involving others in the community. This was an oblique reference to the fact that Sam was not a fugitive from justice and was reportedly under the protective custody of the Bath County sheriff. The former Bath County deputy had testified, presumably as a subpoenaed witness, but we heard nothing at all with respect to Bath County sheriff Tuffy Snedegar. The federal court was apparently reluctant to jump into the briar pit of federal jurisdiction versus the constitutional power of elected sheriffs as the supreme law enforcement authorities in their counties.
There are nearly identical herbal products listed for sale on Amazon and numerous other places on the internet. The manufacturing processes for these are probably home based, as Sam's were. Are these manufacturers operating FDA registered facilities with recurring surprise inspections? Probably not. Is the FDA going to use Sam's case as a legal precedent to go after these other manufacturers? If so, is Sam's cruel and unusually harsh punishment going to be used to intimidate these others into ceasing their operations? Where does it end?
The Amish were putting their faith in... their faith. After the verdict, they were naturally crushed and very disappointed at the injustice, but they remain resolved in their immutable faith. Most of "the English" respected Sam's right to defend himself but were frustrated and felt that it was a tactical mistake and wished he had availed himself of the services of Mr. Fox, a very capable public defender based on the excellent cross examination he provided for the first witness.
How could the jury arrive at such a verdict? Are they stupid, or evil, or both? No. The jury no doubt thinks it served justice, as perverse as that notion is. They were given a form to complete and instructions describing how it should be completed, and that's exactly what they did. "How fortunate for governments that the people they administer do not think." It's not hard to learn who said that, if you're interested. The fact is, most people do as they're told, and federal prosecutors are quite skilled at selecting jurors who are predisposed to think that a defendant must be guilty or the federal government wouldn't have had a lengthy investigation and wouldn't have charged them with a crime. There can be no true presumption of innocence when this is the prevailing belief of the 12 jurors who selected from approximately 80 candidates. Obviously in this case, the federal prosecutor got the jury she wanted. The public wasn't allowed to see the jury selection process, but if the rest of the trial was any indication, Sam didn't understand the process and allowed the prosecutor to select the jury she wanted.
Sam's final point in his closing argument explained that this case deprives all of us of our freedom. This is a point that probably seemed irrelevant to the judge, prosecutor and FDA employees, but it was an important point. This case largely boiled down to whether Americans have the right to make herbal products and sell them to others. Clearly the FDA's position is that we do not, and the FDA has the authority to regulate everything we put into our bodies, both food and drugs, as well as anything else that fits their very broad and tortured definition of a drug, including beeswax, olive oil and a few harmless herbal extracts commonly found in teas. In modern America, for every facet of our lives there is a federal bureau, department or agency writing administrative law out of thin air to regulate us and ultimately to rule over us.
Given how out of his element Sam was, the prosecutor's great legal victory was comparable to a high school football player beating up a grade school special needs child, but I guess a win is a win. That's a resume' builder. Maybe next time they'll let her try a case against a lawyer instead of a pro se case where her legal opponent is an Amish grandfather.
Milling around outside the courthouse after the trial, there was a lot of crying, angry stares and looks of shocked disbelief. Many people felt a surprising sense of shame that such an injustice happened in our country.
The local liberty community is currently investigating some strategies to help prevent this sort of federal bureaucratic overreach in the future. Gross injustices and insults to common decency such as this can be very motivating. People tend not to like tyranny and when we see it, many of us are motivated to do something about it.