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Legal Education of Max Kane: He Loses Court Case, Is Threatened with Jail, But Could Get Re-Do; On Lykke

By David E. Gumpert | The Coomplete Patient

At the end of a nearly two-hour court session, state judge M.J. Rosbrough gave Max Kane the news that he would lose on all counts, But the judge did so in a nearly professorial, kindly way.


Max Kane listens to Judge Rosbrough pronounce his decision.

The raw milk issue "has become a big deal," the judge told the defendant. "By my estimate, you have 100 citizens here as your supporters on raw milk. But this court is not here to decide that issue."

The fact that Max Kane decided at the last minute to discharge his lawyer and represent himself turned the judge against him."I appreciate the way you have conducted yourself," he told the 32-year-old head of Belles Lunchbox buyers club. "But a lawyer would not be questioning a judge about the constitution...Your arguments about why these regulations are unconstitutional are primitive and undeveloped."

Max Kane will need to submit to questioning by the Wisconsin Department of Agriculture, Trade and Consumer Protection. The fact that he was given a second chance, a re-do if you will, stemmed from the state's failure to properly place the previous proceedings, where Kane refused to answer questions, properly on the record.

If Kane in the next go-round refuses to answer their questions? "You could ultimately go to jail--that certainly is a possibility," the judge said. "A remedial order could be entered that you would go to jail until you answer the questions."

For more than ninety minutes before the judge rendered his decision, Max Kane debated Phillip Ferris, an assistant attorney general for the Wisconsin Department of Justice, about the circumstances and legality of DTCP's efforts to question the buyers club owner about his customers. Kane argued that he could incriminate himself and, even if he was granted immunity, he could be prosecuted by the state of Illinois and the federal government. Ferris argued that legal precedent showed that the grant of immunity would need to be respected by other authorities, though Kane could be prosecuted based on separate evidence unrelated to his testimony.

The proceedings were notable in how low key and peaceful they were, especially in contrast to a boisterious rally outside the courthouse attended by nearly 200 people. It was led by Scott Trautman and Mark McAfee, and included brief talks by Mark Kastle of Cornucopia, Michael Schmidt of Canadian raw milk fame, Max Kane's three brothers, and yours truly.

"They're not going to keep us in chains!" exclaimed Scott Trautman. the Wisconsin farmer who has lost his dairy license for distributing raw milk. "I have a dream of a golden age of farming in Wisconsin. Let's get rid of the goons who want to keep us in chains."

I argued for keeping the focus on rights, on not getting caught up in the "religion" of arguing for raw milk' curative powers, or its frequent deadly dangers. Mark McAfee advised the crowd to "behave" in the courtroom. "Let them see that we are reasonable people."

After the court session was over, Michael Schmidt went up to the judge to compliment him on his handling of the case. And Max Kane was being urged by supporters to re-hire his lawyer. He said later he had decided to appeal the judge's ruling, and was uncertain as to whether he would use a lawyer.
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I'd like to respond to Milk Farmer's challenge: "Lykke is of this sort, s/he probably works for the FDA and is here on assignment to disrupt. anyone who wants to offer an alternative reason for her presence please feel free to offer it. anyone who thinks lykke is fair and balanced please pipe in."

All I can say, Milk Farmer, is that you haven't met many FDA or state public health officials. First off, they won't express themselves publicly the way Lykke has (even under assumed name). They can't stand the idea of public debate of their views and tactics. Second, Lykke listens and debates and is rational and respectful. She/he isn't arrogant. Third, Lykke has expressed sincere support for small farms. Lots of regulators read this blog (I'm assuming Lykke is a regulator, or close to the regulator community), but many are scared off by active discussion of the sort that occurs on this blog. Lykke isn't. I get frustrated with Lykke's refusal to consider the possible health benefits of raw milk, and her/his rabid worry about risk from raw milk, but I commend her/his willingness to engage in debate and discussion, often in articulate fashion. Lykke on "assignment to disrupt"? Hardly.

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