December 3, 2022

In a historic trial over the 2017 removal of two sick and dying piglets from Utah’s Smithfield Foods factory farm, two animal rights activists were acquitted by a jury Saturday night on burglary and theft charges, which could have sent them to prison for five-and-a-half years each. The verdict is the culmination of a more than five-year pursuit that multiple agencies, including the FBI and the Utah attorney general’s office, began after the activists published undercover footage revealing gruesome conditions at Smithfield, the nation’s largest pork producer.

Wayne Hsiung and Paul Picklesimer, members of the animal rights group Direct Action Everywhere, or DxE, removed two sick, severely underweight piglets from Smithfield in March 2017. They named the pigs Lily and Lizzie, brought them to receive veterinary care, and took them to a sanctuary for rescued farm animals in Colorado. Later that year, as The Intercept reported, the FBI chased the piglets across state lines and raided the sanctuary where they were living, bringing with them veterinarians who sliced off a piece of Lizzie’s ear to perform a DNA test and confirm that she was the property of Smithfield Foods. (The animals were not removed from the sanctuary and still live there to this day.)

A state veterinarian cuts Lizzie’s ear for DNA testing during an FBI raid of a Colorado animal sanctuary.

Photo: Direct Action Everywhere

Activists who traveled to St. George, Utah, to watch the trial were jubilant over the decision, describing it as a turning point for the animal rights movement. “They just let a guy who walked into a factory farm and took two piglets out without the consent of Smithfield walk out of the courtroom free,” Hsiung told reporters outside the courthouse. “If it can happen in southern Utah, it can happen anywhere.” 

Prosecutors alleged that the baby pigs, who were barely a week old when the activists removed them, were worth $42.20 each, or $84.40 in total, to Smithfield. The U.S.-based pork producer is a wholly-owned subsidiary of the Hong Kong-based pork company WH Group, which reported $24 billion of revenue in 2019.

The verdict is the first jury acquittal for DxE, which Hsiung co-founded in 2013. Going into the trial, Hsiung and Picklesimer both faced two counts of felony burglary, which each carry up to five years in prison, and one count of misdemeanor theft, which carries up to six months. (One of the burglary charges was dismissed by the judge due to a lack of evidence.)

“Smithfield has an enormous amount of financial interests that are wrapped up in this,” said Hadar Aviram, a professor at UC Hastings Law who testified in favor of the activists. “They have an enormous amount to lose if this trial becomes public, and they cannot afford, or maybe they think they cannot afford, to give an inch to these people.”

The long-awaited trial was a test case for DxE’s theory of change, which relies  on a tactic they call “open rescue.” The group openly removes animals suffering on factory farms, vivisection labs, and other places where they’re exploited for profit, inviting confrontation with the legal system. Hsiung and Picklesimer aimed to persuade a jury of their peers that it makes no sense to imprison people for saving suffering animals, thereby opening the door to a legal “right to rescue.”

“Against the advice of my co-counsel and pretty much all the attorneys I’ve talked to, I’m going to tell you exactly what we did on the night in question because I believe in the people of this country and the people of Utah to make the right choice,” said Hsiung, an attorney who represented himself, in his opening statement to the jury. Animal rescue “is not the worst part of us as human beings. It’s the best of us.”

“Today is a good day for somebody in particular, and that’s Lily and Lizzie, two pigs who are living their best lives in the sunshine right now, who are priceless,” Picklesimer said after the verdict. “They got the right to be rescued today. There are billions of animals who don’t have that right yet, and we’re going to keep working for them.”

Hsiung and Picklesimer, along with three other activists who have since pleaded out of the case, entered Circle Four Farms, Smithfield’s factory farm complex in Beaver County, Utah, in 2017 to investigate the company’s pledge to stop using gestation crates, which confine pregnant pigs in cages too small to let them turn around.

When the activists arrived at the massive facility, they found it filled with rows of pregnant pigs caged in the crates the company had sworn off. They also entered a facility packed with farrowing crates — similar to gestation crates, but with just enough additional room to fit nursing piglets — where female pigs are moved when they’re ready to give birth. The group found dead and rotting piglets inside the facility, as well as visibly ill and injured ones like Lily and Lizzie.

“Whenever I think about the condition Lily was in and the desperation we felt when we saw her there, struggling and so small and so sick, a little baby in such a horrible, awful, brutal place,” Hsiung said in a video posted Thursday to Instagram, “we just wanted to get her out.”

A piglet being carried by an activist for Direct Action Everywhere.

A piglet being carried by an activist for Direct Action Everywhere.

Photo: Direct Action Everywhere

A key part of the defense’s case was that the piglets were on the verge of death when Hsiung and Picklesimer took them, and Smithfield routinely throws sick or dead animals away. Had the animals remained in the company’s possession, the defense argued, they would have been worthless.

Both piglets were a fraction of the weight of their littermates when they were found at Smithfield. Lily had scars on her face and a foot injury that prevented her from walking and accessing food; Lizzie’s face was covered in blood because her mother’s nipple was shredded and bleeding. At the trial, veterinarian Sherstin Rosenberg, who cares for pigs and other farm animals at Happy Hen Animal Sanctuary, testified that Lizzie’s mother had a condition called hypogalactia, which meant she wasn’t producing enough milk.

Rosenberg said both piglets had a vanishingly small chance of surviving at Smithfield. The prosecution’s $42.20 estimate of their value, which comes from a USDA standard market price index, had “no relevance at all” to these specific animals, she said: The veterinary care needed to keep them alive would have cost hundreds of dollars. She added that both piglets also had diarrhea, almost certainly caused by an infection, which made them a liability to Smithfield because they could spread disease to other animals.

In the pork industry, throwing away sick and dead animals is a cost of doing business. As a witness for the prosecution, Utah state veterinarian Dean Taylor confirmed about 15 percent of piglets don’t survive past weaning by the U.S. Department of Agriculture’s estimate.

At trial, Hsiung attempted multiple times to ask Smithfield manager Richard Topham whether his claim that piglets have value to the company applies to those they throw into dumpsters. But the prosecution objected, and Judge Jeffrey Wilcox of Utah’s Fifth District Court didn’t allow the line of questioning. “I don’t want you mentioning that again,” he told Hsiung.

Wilcox didn’t allow DxE’s 2017 footage to be shown to the jury because, as Utah Assistant Attorney General Janise Macanas argued for the prosecution, it would “cause an improper and emotional reaction within the jury.” But Smithfield’s side still used it as a major source of evidence, referenced repeatedly throughout the trial. In July 2017, when DxE published the video and the New York Times covered it, Smithfield claimed that the video “appears to be highly edited and even staged.” Hsiung later told The Intercept: “The video speaks for itself. I don’t know how we can fake a rotting piglet.”

Picklesimer said they ultimately thought the judge’s decision to suppress the video ended up helping the defense’s case. “It makes the jury feel like they are being treated like babies,” they said.

While Wilcox did allow spoken references to the video footage, he blocked Picklesimer’s attorney, Mary Corporon, from describing Smithfield’s facilities as “industrial.” When Hsiung tried to question Smithfield representatives and Chris Andersen, an FBI agent who investigated the case, about whether corporate public relations concerns were the reason for the prosecution, the judge blocked most of the questioning.

Chris Andersen testified that approximately eight FBI agents had been on the case.

Andersen testified that approximately eight FBI agents had been on the case. When Hsiung pressed him on whether any other theft cases involving less than $100 worth of property had multiple FBI agents working on them, Andersen acknowledged that he couldn’t think of one from personal experience. FBI documents obtained during discovery revealed that Andersen had discussed the incident with executives from Smithfield and Costco. “Smithfield is concerned how this incident and the news coverage of it will affect Smithfields [sic] reputation and relationships with clients,” read one, which was based on an interview with Smithfield Senior Vice President Keira Lombardo.

DxE had sought disclosures of Utah Attorney General Sean Reyes’s potential financial ties to Smithfield, arguing that he could have a conflict of interest in the case. A Salt Lake Tribune story found that Smithfield donated at least $10,410 to the Republican Attorneys General Association in 2014 and gave Reyes a $500 direct contribution in 2020.

This verdict is very disappointing as it may encourage anyone opposed to raising animals for food to vandalize farms,” Jim Monroe, Smithfield’s vice president of corporate affairs, said in a statement. “Following this 2017 incident, we immediately launched an investigation and completed a third-party audit after learning of alleged mistreatment of animals on a company-owned hog farm in Milford, Utah. The audit results showed no findings of animal mistreatment.”

Rick Pitman, a California-based turkey farmer, testified in favor of the defendants. His position likely came as a surprise: In 2018, DxE activists took his turkey from a farm in Utah and exposed cruel conditions maintained there, which were then covered by the Salt Lake Tribune.

“There’s a difference between stealing a turkey and causing damage to the property or economic damage to me, or whether he’s trying to rescue a turkey that’s suffering,” said Pitman. He added that talking to DxE has helped him improve living standards for his animals.

Protesters demonstrate outside the court during Wayne Hsiung and Paul Picklesimer's trial.

Protesters demonstrate outside the court during Wayne Hsiung and Paul Picklesimer’s trial.

Photo: Direct Action Everywhere

Leading up to the trial, Wilcox ruled that the case could only focus on the narrow legal issues of burglary and theft. He didn’t allow the defense to discuss general animal welfare conditions at the factory farm, but he did allow them to testify to the health of Lily and Lizzie because of its relevance to the prosecution’s claim of monetary value.

At one point, Wilcox allowed the defense to show a screenshot from their footage of Lizzie’s face covered in her mother’s blood, but not of the bleeding mother next to her. The prosecutors, Macanas and Beaver County Attorney Von J. Christiansen, objected many times to mentions of animal welfare at trial.

In his closing arguments Friday night, Christiansen compared the piglets to inanimate objects. “Suppose you were in the grocery store and you saw a can with dents in it,” he said. “And you thought to yourself, ‘Oh my goodness, that can has a dent, it has the potential of going bad. I better rescue that can.’”

“I think it’s bigger and past just the animal rights issues, to the whole question of government overreach and prosecutions in the service of large corporations.”

“I think it’s bigger and past just the animal rights issues, to the whole question of government overreach and prosecutions in the service of large corporations,” Corporon said. “I have never seen an FBI agent sit through a six-day trial in state court in Utah, ever.”

In the 1970s and ’80s, Aviram said, anti-nuclear activists who broke into nuclear facilities made arguments known as a “necessity defense,” wherein the defendant proves that their action was intended to prevent imminent harm. “In those years, you could actually go to a small town in Nevada where the test sites are, and you would win a necessity defense,” she said. “These avenues of political necessity are now closing down for activists. It’s a lot more difficult to prevail in local courts with these kinds of arguments.”

In court, DxE activists have had mixed results: Last December, Hsiung was convicted of two felonies and given a suspended sentence for removing a sick baby goat from a farm in North Carolina. In January, DxE activist Matt Johnson had all charges against him dismissed right before trial in an Iowa case pertaining to his investigation that found the pork company Iowa Select Farms was roasting animals to death as a cull method.

In the trial that ended Saturday night, Wilcox barred activists from arguing a necessity defense, but they still raised related points in their successful arguments before the jury. “You call it ‘rescue,’ but really it’s taking, isn’t it?” Macanas posed.

“No,” Hsiung said. “I’d compare it to a dog in a hot car. They are in need of urgent care.”