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Jailing a cage-free activist

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Six months.

That's 180 days, and it's how long Adam Durand will have to mull over his decision to enter Wegmans' hen house while he sits in the WayneCounty jail.

Durand is an activist with the group Compassionate Consumers. In 2004, he, along with several other activists, went to Wegmans' egg farm in Wolcott on three occasions, shot video, and removed 11 hens they believed were ill or dying. Last year they released a DVD documentary titled "Wegmans Cruelty" based on the footage they gathered. The group contends that the conditions and practices they filmed on the company's egg farm amount to animal cruelty. (See "Of Food and Felonies," May 10).

Their efforts netted criminal charges for three of the activists. Two were offered plea bargains, which they took. But Durand, at the grocery chain's insistence, was put on trial earlier this month for 10 charges, including three for felony burglary. A jury acquitted him of all but three charges of criminal trespassing --- less than his co-defendants pled to. Last week, those convictions earned him 180 days in jail, plus $1,500 in fines, a year of probation, and 100 hours of community service.

The sentence wasn't the harshest that Judge Dennis Kehoe could've meted out --- the maximum for each count was 90 days, so Durand could have received up to nine months in jail --- but it was stiffer than some expected. "We don't expect any jail time," one of Durand's own lawyers, Len Egert, told the Associated Press after the jury's verdict. "It's just usually not given for a low-level offense like this."

But Judge Kehoe seems to have viewed the offense as anything but low-level. He took the step --- unusual in misdemeanor cases, but not in high-profile ones --- of writing a five-page statement, which he read aloud to Durand in the courtroom before sentencing him. The statement, provided to City Newspaper and other media outlets by District Attorney Rick Healy's office, outlines in detail the reasoning behind Kehoe's sentence.

"From the tone of it, it's very severe, and he gave it that way," says Healy. "It's unusual" for a judge to give a statement at sentencing, especially for such a relatively minor offense, Healy says.

If the tone of the statement is any indication, the judge felt strongly on the issue.

"I have always believed that criminal consequences should be more severe for those who refuse to take responsibility for their actions, and who continue to benefit from their criminal behavior," wrote Kehoe.

Durand, Kehoe said, believed he was "above the law," and Kehoe berated him for not contacting authorities if he had felt Wegmans practices were abusive.

"Society rejected vigilantism many years ago," wrote Kehoe, "and I believe we should not return there any time soon."

The judge seemed particularly upset by the video, which he said "has never been substantiated." Calling it "contraband," the judge expressed his desire to order the video destroyed, but said he could find no legal justification to do so. He also said he wished he could hold Durand and the other activists responsible for the cost of the security upgrades Wegmans has made since the break-ins. Wegmans spokesperson Jeanne Colleluori says that the company has spent $1 million securing the egg farm in the wake of the incidents.

Among other things, the company said it is worried that an intrusion like Durand's could introduce pathogens --- like avian flu --- capable of wiping out whole flocks of the company's birds. The judge specifically mentioned that concern in his statement.

It's not until his closing two sentences, however, that Kehoe directly addresses what to some is the most surprising part of his sentence: jail time.

"I am concerned that any sentence imposed by me which does not include jail time," Kehoe wrote, "might be perceived by you as tacit approval by this Court of your clearly illegal conduct, now and in the future, as long as such conduct can be tied to some value that you, the law breaker, perceives as a higher law."

But what's most interesting about Kehoe's statement is how closely it matches a victim-impact statement submitted to the court by Nixon Peabody attorney Christopher Thomas on behalf of Wegmans.

The statement prepared by Thomas "respectfully suggests" a 180-day jail sentence and a year of probation. And along with the fines and community service, that's what he got. According to Durand's attorneys, Wayne County's probation department had recommended a significantly milder sentence.

In addition to the sentence, plenty of Kehoe's points are similar to Thomas's. The Wegmans lawyer writes about the appropriateness of punishment "in cases where a defendant carefully plans how he will violate the law and the rights of others." Judge Kehoe told Durand: "You carefully planned your criminal activity well in advance, and carried out a carefully orchestrated scheme."

At times the match is almost word for word.

Thomas references Durand's "arrogant and self-righteous statements of justification and his obvious disdain for his victims." The judge has this to say: "You have made arrogant and self-righteous statements of justification. You have demonstrated by word and action your obvious disdain for your victim and the laws of the state of New York."

The judge even borrowed the Wegmans attorney's dubious literary analogy.

Durand "believes his conviction is a Red Badge of Courage instead of The Scarlet Letter that it actually is," wrote Thomas in a footnote.

Kehoe wrote that Durand's "political agenda" causes his "suffering from the erroneous delusion that your conviction is a 'Red Badge of Courage,' instead of 'the Scarlet Letter' that it actually is."

In a statement, Wegmans appeared to be satisfied with the sentence.

"We are relieved this is behind us," said the statement, "but we are also glad that a strong message has been sent that illegal entry onto private property will not be tolerated. We will continue to focus on the safety and security of our egg farm and its employees and protecting our birds."

Durand's lawyers seemed shocked.

"We were really surprised," says Len Egert, adding he'd never seen a sentence this harsh for a first-time offender.

Referring to the probation department's recommendations, he said: "To have the court completely reject that and go to the opposite extreme was very surprising and we think excessive."

Further, casting the episode as a matter of free speech, Egert hints that Durand's remarks to the media are what made his sentence as stiff as it was. To make that case, he points to the similarities between Kehoe's remarks and Wegmans' statement.

Although the judge steered clear of specifics in his mention of "arrogant and self-righteous statements of justification," the victim impact statement submitted by Wegmans' attorney repeatedly references Durand's remarks to the media. Exhibit A is a copy of the New York Times article on his verdict. The statement cites Durand's remarks to the Times after the verdict --- "We'll embolden our efforts," he told the paper --- in arguing for a jail sentence.

Did the judge take that argument into account? It's impossible to say, but the question worries Egert.

"That's very troubling to the extent that he bases his sentence on Adam's words or speech."

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