Justice and Due Process

Jury Discretion in the Wild

Jury discretion — when a jury acquits a defendant despite clear evidence of guilt — is often discussed, but is rarely identified in the wild. 

However, this unicorn of legal events has indeed occurred, right here in Utah. 

On trial were Wayne Hsiung and Paul Picklesimer, animal rights activists associated with Direct Action Everywhere, a self-proclaimed “global network of activists working to achieve revolutionary social and political change for animals in one generation.” 

The facts relating to the charged crimes are all but incontrovertible. Hsiung, Picklesimer, and several compatriots video recorded themselves surreptitiously entering a Smithfield Foods pork production facility in the dark of night, taking two piglets, and departing the premises with the self-proclaimed intent to take the pigs to a sanctuary and never return them to the owner. It’s a pretty obvious legal violation of Utah’s theft and burglary statutes. And yet, the jury acquitted the defendants of both charges.

Was justice done?

Your answer may depend on what facts you have access to.

If the facts show pigs were living and dying in unspeakable misery, you’re more likely to think taking the piglets was a valiant rescue mission unworthy of criminal penalties and the jury’s decision was just.

If the facts show that the pigs were kept in accordance with industry standards and that the defendants were creating misleading propaganda to serve a radical agenda, their actions look both criminal and immoral. If that is the case, you’re more likely to think the jury rendered an unjust verdict.

So which is it?

We may never know, and the jury certainly didn’t know. The parties knew that which facts were presented would largely control the outcome of the case, and so they spent over four years arguing about what evidence and arguments would be permitted at trial. The State even amended the charges in an attempt to limit the scope of evidence that would be relevant and, therefore, admitted. Much of what both sides would have liked to show the jury wasn’t allowed. 

The State successfully argued that because “rescuing animals” isn’t a legal defense, the defendants could not “discuss, address, or allude to, or cross-examine witnesses about the conditions of the animals,” nor could any witnesses “mention any animal conditions, concerns, or defendant’s motive for committing the offenses.” 

The defendants wanted to show the video they took of the Smithfield Foods facility. The State argued that the conditions at Smithfield Foods were not relevant to the legal question at issue: did Picklesimer and Hsiung enter a building unlawfully and exercise unauthorized control over the property of another with the intent to deprive the owner of the property. Showing the video, prosecutors argued, would only serve to confuse the issues and inflame the jury, and thus the video should be excluded. 

The judge largely agreed with the State and excluded the video, but did allow photos to “decide if a burglary was committed, particular pigs were taken, their condition at the time of the taking, and the value of the pigs.” 

This ruling is somewhat puzzling because the defendants went to trial on Class B misdemeanor theft. That is the lowest level of theft crime under Utah law and doesn’t require the State to prove the value of the stolen property at all (as opposed to, say, second degree felony theft where the State must prove the property was worth more than $5,000). In fact, “property” for purposes of Utah’s theft law, specifically includes “captured or domestic animals.” Given that taking piglets constitutes theft regardless of the animal’s value, from a legal perspective, the judge was simply wrong to allow any evidence about the animal’s condition or value.

Cases turn on small hinges, and this was one such hinge. The judge’s ruling opened the door for the defendants to admit dozens of photos and videos of the piglets and to have witnesses and experts opine about their condition and value. At the end of the trial, the defendants argued that they were rescuing sick and mistreated piglets rather than stealing them. This argument was allowed even though Utah law contains no “rescue” exception and the defendants explicitly stated in their own video that they were taking the piglets to a sanctuary where “they would have a good life.” In other words, the defendants admitted to acts that the law defines as theft but argued they shouldn’t be convicted. 

Ultimately, the jury was persuaded by the defendants. 

Maybe that decision was right. Maybe it was wrong. But it certainly was not informed. 

The jury didn’t get to see the video to decide for themselves whether pigs were suffering or whether the video was heavily edited or even staged as the prosecutors alleged. 

The jury didn’t know about Direct Action Everywhere’s agenda, which might have impacted the credibility they gave some witnesses. And they didn’t know other activists have criticized the group’s “bullying” and “disruptive practices,” which have been called “counter-productive.”

The jury didn’t know that the defendants had previous convictions in several states for taking animals.

The jury didn’t know what levels of offenses the defendants were charged with or the possible or likely penalties associated with each offense. They didn’t know if the defendants were likely to be locked away for years for their acts or merely fined and put on probation. 

The jury didn’t know that the other participants had all pled guilty to misdemeanor theft and were only given community service for their crimes. 

In this case, the jury was invited to weigh in on not just whether the defendants broke the law, but whether there were other overriding concerns. Making such a high level decision requires access to a broad range of information because the jury is no longer just finding facts, they are ordering competing societal values. But juries in our system aren’t allowed to have information of this scope. As this case shows, neither side wants the jury to have all the information.

If observing jury discretion in the wild reveals anything, perhaps it is that the issue is not as simple as some claim. Should juries be limited to deciding a narrow set of facts? Is it even possible for mere mortals to silence any emotional connection to the parties and their stories? If it is possible to render a verdict based solely on facts and logic, is that desirable?

Does your answer change if you envision yourself as the victim? As the defendant? Do we think elected representatives have the foresight to create legislation which can be universally applied without ever leading to an unintended, unjust result? Do we think that jurors, who are untrained in the law, who do not have to justify the reasoning for their decision, and who have no continuing responsibility for the consequences of their decisions can do better? There are no easy answers.