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Wegmans vs. the activist: who was really on trial?

Of food and felonies 

Wegmans vs. the activist: who was really on trial?

Adam Durand's palms were sweating.

A few minutes before 2 p.m. last Thursday, a Wayne County court clerk addressed the 26-year-old packaging designer from Rochester as "the defendant" and asked him to rise.

"When I was asked to stand to hear the verdict, it was an incredible moment," he recalls. "My heart was racing."

Durand was facing nine different counts, three each of criminal trespassing, petit larceny, and felony burglary. Each burglary charged carried the possibility of a jail sentence of up to seven years.

The charges stemmed from his role in sneaking onto Wegmans egg farm in Wolcott to make a film and taking hens out with him on each of the three trips --- 11 hens in all. (Durand and his fellow activists said they took only hens that were sick or dying --- he and his supporters used the word "rescue"; the district attorney and Wegmans prefer "stole.")

A year later, in 2005, the fruit of his efforts --- a 27-minute documentary titled "Wegmans Cruelty" --- was released. (It was screened at the Little Theatre as part of its Emerging Filmmakers Series.) But Durand's story and the story of the grocery company had been working their way toward this conclusion for a long time.

In 1967, Wegmans opened the egg farm just outside the little village of Wolcott, nearly 50 miles east of Rochester. Since then, it's been run by the same family for three generations. But times and attitudes toward food production have changed. In a prescient address to a 2001 conference of fellow poultry producers in California, one of the farm's employees, John Gingerich, recognized the looming concerns.

"I believe our industry is at a crossroads on the animal-welfare issue," he said.

Gingerich went on to mostly dismiss the beliefs of animal-rights activists, but he made this trenchant observation that Wegmans executives may wish they'd paid closer attention to now:

"I have found in the many tours that I have given to persons without poultry backgrounds that the single most common comment involving negative perceptions that they have is the small amount of space that we give the chickens. The reality is that we also deal in perceptions, and those perceptions affect our futures."

We don't know what Wegmans officials made of those remarks at the time, or if they prompted any internal discussions about animal rights issues at the company. As other parts of Gingerich's address suggest, Wegmans was providing what it believed to be adequate care for its hens. (Perhaps that early awareness is one of the reasons Wegmans wasn't on trial, as other farms are; before charging Durand, the district attorney and state police conducted a two-week cruelty investigation of the farm and ultimately declined to press charges.)

Still, a few years later, that address, reprinted in Cornell Cooperative Extension's newsletter Cornell Poultry Pointers, would become inspiration for Adam Durand's crusade.

Durand's journey toward becoming a guerrilla filmmaker and running afoul of the law in the process began nearly a year after Gingerich's remarks were published. For Christmas of 2002 Durand cooked dinner for two vegan friends. He was not a vegan himself, but he enjoyed the experience, and his friends urged him to join them in abstaining not only from meat but all animal-based foods. Durand says he tried the diet on a whim, as more of a challenge to himself than a political or social decision.

But his connections with other vegans and vegetarians inevitably exposed him to the very different reasons why others had made a similar choice.

In the summer of 2003 he first saw a video of an egg farm that employed battery cages: a type of cage where several laying hens essentially live out their lives in tight quarters, along with several other birds. Ninety-five percent of the nation's egg supply comes from hens living in such cages.

"I wasn't really interested in farm-animal issues at that point," he says, but "I knew this had to be stopped."

At first Wegmans, didn't seem an obvious choice for such a campaign. Durand, who'd grown up in Webster, had, like many Rochesterians, a certain regard for the hometown grocery chain.

"I had always looked up to Wegmans since childhood, and I'd always thought of them as a stellar company," he says.

But a few factors made the chain the logical target. First, they own their own egg farm, a rarity in the industry. Wegmans spokesperson Jeanne Colleluori says the company made the unusual decision because it "allowed us to be consistent with what we offered our customers."

And Wegmans is rare in the industry in another way: It's a full-service grocery store that also competes to fill the niche occupied by natural-food chains like Whole Foods and Wild Oats elsewhere. A small sign on the entrance of the chain's store in Pittsford boasts the number of organic products offered on a given day. Those two factors, taken together with Wegmans' reputation as a progressive and responsive company, made the grocery chain a logical bridge between niche markets (which have switched to selling only cage-free eggs) and the rest of the grocery industry.

So Durand and his organization, Compassionate Consumers, wrote to Wegmans asking for a tour of the egg-laying facility. Their request was rejected. Talking to Wegmans' representatives almost won them over --- "The company had almost convinced us, but not quite, that they were better than the rest," Durand says --- but then the rejection letter referenced Wegmans' participation in the United Egg producers Animal Care certified program.

Compassionate Consumers knew that that program was under assault from the Better Business Bureau, which alleged that it was misleading advertising. When Wegmans invoked the program, it backfired on the company. Looking back, Durand says that was the turning point that convinced him he needed to get video footage of the inside of the farm.

"We toyed around with maybe getting a job there" or repeating the request, says Durand, but eventually the group decided to take matters into their own hands and visit the farm at night.

Everyone in the group with whom City Newspaper spoke says they decided early on that they wouldn't damage property to gain access to farm.

"We didn't want to give them a reason to call us terrorists or something," says Megan Cosgrove, a Compassionate Consumers member who accompanied Durand on the final trip and is serving probation for her role, as part of a plea bargain.

"We're even avoiding the term 'activists,' because we really just wanted to be filmmakers," Durand adds.

They also thought that breaking in would blunt the impact of their message when they took it to the public.

"We thought the better we did it, the better it'd be received," Cosgrove says.

"We knew we'd be not only questioning a powerful company, but also the eating habits of lots of people," says Durand.

For all that, Durand doesn't seem to have ever felt very nervous about going into the farm.

"We had put so much effort into it, we knew there was no turning back," he says. "I'm sure I thought to myself 'I'm not the kind of person who does this thing,'" he admits, but then if he didn't, who would, he thought.

The way Americans think about food has been in a state of more or less constant flux for at least the past several decades. There was a time when a majority of the people in the US lived on a farm. Those days are long gone, and few people can tell you exactly where their food comes from or how it's made. Since the middle of the past century, food and food production has become increasingly mechanized and globalized, but also increasingly tinged with political and social meaning.

Our ancestors of a century ago would have been equally mystified by Kraft Singles and by organic, fair-trade, shade-grown coffee.

When Durand and his fellow activists went into the egg farm on May 1, May 15, and August 1, the footage they captured and the film they subsequently created is one small contribution to the burgeoning national conversation about food.

The film is not for the faint of heart. Jason Wadsworth, the production manager at Wegmans egg farm, appeared uncomfortable with the images he was shown while on the witness stand during Durand's trial. And when state police investigator Frank D'Aurizio --- who, along with Wayne County DA Rick Healy, brought the charges against Durand and two others --- was confronted on the stand by a video still, he admitted he considered what was depicted to be neglect.

The video shows the corpses of hens (sometimes decaying), hens with injuries or with their heads stuck in the cage wires. The most stomach-turning shots come from below the cages in the manure pits, where the activists videotaped one hen nearly submerged in manure and another crawling with flies. (Wegmans says there's no way to confirm or deny whether most of the footage was shot at its facility.)

Partially lost in the shuffle was who was actually on trial.

"Wegmans is not on trial here," the DA told prospective jurors during jury selection. He repeated that line again at the beginning of his closing arguments in the trial. You might not have known it, though, from the courtroom proceedings, he said. (In a way, that's a backhanded compliment to his opponents, Len Egert and Amy Trakinski, Durand's lawyers.)

He repeated the line a third time, at the end of his summations: "This is not about Wegmans, ladies and gentlemen," he said. "This is about Wegmans' right to equal protection under law."

After the trial, City Newspaper asked Healy whether he felt he'd been able to effectively communicate that point to the jury. Laughing, he responded: "That's a good question." Instead of answering it directly he offered this: "That's why this case was so unusual. This obviously wasn't a larceny in the normal sense."

Healy was acknowledging what Durand's defense team made effective use of: the disparity of the hens' condition and their supposed value to Wegmans.

In his closing argument, Egert played up that disconnect by showing the jury video clips, stills, and a few photos: "When you look at this, you have to ask yourself: is that property that has any value? Is that property that Wegmans cares about? The truth is, they don't care."

"Should they have walked away from this?" he asked a few moments later, this time while showing a video of a hen covered with flies.

Wegmans, recognizing that the trial could become about them, strove mightily to keep that from happening. But the company was in a difficult position. In order to convict Durand, they had to admit that at least some of the video footage came from their facility.

A plea bargain (such as those offered to Cosgrove and a third activist, Melanie Ippolito) might have spared the company the painful spotlight of the trial. But Healy (who says he doesn't plea bargain burglaries without the consent of the victim) says Wegmans wasn't interested in letting Durand bargain.

As part of their public relations outreach, Wegmans offered media covering the trial, including City Newspaper, a tour of the Wolcott facility.

"We wanted to get the record straight," said Jeanne Colleluori. "We have nothing to hide. We felt the visuals shown in the courtroom were very slanted in a negative way."

Conditions in the facility appeared to be different from those in the "Wegmans Cruelty" film, but not drastically. The most obvious difference was that it was much cleaner. (Colleluori says the decision to offer the tour was made earlier that day, so no special preparations were made.) Manure piles were a foot or two high, rather than the four to six-feet-high mounds activists say they observed during their visit.

Media weren't allowed down the 400-foot-long corridors lined by cages, for fear of agitating the hens, so it's impossible to compare the situation with that in much of the activists' video.

But in a sense, all that's superficial. What was the same in both the video and the media visit were the cages themselves. Neither side disputes that hens are kept in tight quarters. (At the Wegmans farm that means four or seven birds per cage, depending on layout, according to the company.) The cages are stacked four high and run the full length of the building, about 400 feet (that's the length of a football field, plus 100 feet).

Jason Wadsworth, the farm's manager, says each bird is allotted 75 square inches. Paul Shapiro, who advocates on this issue full time for the Humane Society of the United States, points out that a standard letter-size sheet of paper, at 8.5 by 11 inches, is 93.5 square inches.

A Q-and-A on Wegmans' website addresses this question, saying people aren't "instinctively" a good judge of how much space the birds need: "The UEP [United Egg Producers, an industry association] scientific committee determined this was the right size to provide adequate space to allow hens to eat, drink, and sleep when they wish."

At the time Durand broke into the facility in 2004, there were 750,000 hens living in these conditions. Today there are about 650,000 according to Wadsworth. To get a sense of how big that number is, there were about 700,000 people living in Monroe County in 2004 (down from 735,000 in 2000) according to US Census Bureau estimates.

The debate ultimately boils down to the use of the battery cages, and there's a wide gulf between the opposing sides. Producers like Wegmans judge themselves on how well they adhere to industry standards in using the battery-cage system. In Wegmans' case, that's pretty well. The farm already complies with the UEP's 2012 standards.

But activists like Durand and Shapiro want to see the cages banned completely. Some European nations --- Switzerland, Austria, and Germany are examples, according to Shapiro --- have phased out the cages entirely, while the entire European Union is going to a softer form of battery cages that are "furnished" with perches, nesting boxes, and other fowl amenities. But "here in the US," says Amy Trakinski, one of Durand's attorneys, "there really has been a trend for states to amend their animal-cruelty statutes" to make it easier for large-scale farms to continue using existing battery cages.

In other cases, including one slated to be tried in Pennsylvania this summer, the tables have been turned and the egg suppliers are going on trial for animal cruelty. But getting people to pay attention is difficult, says Trakinski.

"I think people don't want to look at it," she says. "Even some well-intentioned people who would take seriously a case involving a companion animal will look away when it involves a farm animal."

When they're compelled to look, though, the results might be an unwelcome surprise to the egg producers.

After deliberating for just over an hour (and that includes time to eat their free lunch), the jury found Adam Durand not guilty of all three counts of felony burglary, as well as all three counts of petit larceny. They convicted him of criminal trespassing. Though he could still spend up to 9 months in jail if sentenced consecutively, that was clearly a victory for Durand.

"When this case was given to a jury, they found that Adam was guilty of less than Mel and I pled to," says Megan Cosgrove. (She and Ippolito pled guilty to both the trespassing and petit larceny counts.)

"They didn't find it a crime to rescue sick and dying animals." That's how Len Egert interpreted the verdict. Yet despite statements like that and the implications they portend, he and Trakinski say they weren't seeking a test case, and Durand wasn't looking to become a martyr for the animal-rights cause.

"We weren't pushing for a trial," he says. "We weren't trying to put Wegmans on trial."

Wegmans released a statement on the verdict that sidestepped that question altogether, saying, in part: "We are very glad this chapter in a nearly two-year saga has ended. We're pleased with the conviction on the trespassing charges, and although we're disappointed in the other decisions, we do respect the finding of the jury."

But the most telling reaction came from the farm manager Wadsworth, as he wound up his tour for the media.

"Actually it felt like I was the one on trial," he said.


To learn more

You can get information related to this story at the following links.

Wegmans statement (plus an FAQ)

"Wegmans Cruelty" video

The Humane Society of the United States Farm Campaigns

"Changing concepts for housing and equipment" John Gingerich, (pdf file)

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