DENVER—The 2011 outbreak of Listeria that left nearly 40 people dead and was traced to a Colorado cantaloupe farm was an "American tragedy", Assistant U.S. Attorney Jaime Pena told a federal judge Jan. 28, 2014.
Eric and Ryan Jensen, fourth-generation farmers, "didn't intend to hurt anybody", the seasoned prosecutor said. "It's counterintuitive to their business model … ."
That business model—and the Jensens' entire lives—have unraveled following a deadly outbreak of foodborne illness, culminating in a sentencing hearing that could have resulted in six years behind bars.
Instead, U.S. District Court Magistrate Judge Michael Hegarty sentenced each brother to five years of probation, 100 hours of community service and six months of home detention. The brothers also were ordered to pay $150,000 each in restitution.
"I must deliver both justice and mercy at the same time," declared the judge prior to announcing the sentencing before a Denver courtroom that was overflowing with families and friends of both victims and the Jensens.
The courtroom was so packed that people, including some children sat in the jury boxes, and the mood throughout the hours-long morning hearing was somber.
Before sentencing the men to probation, the judge showed his own humanity, sharing with the gallery that he too had grown up in a small farming community and had lost his own dad to cancer over the summer.
Hegarty's decision to impose probation was consistent with the recommendations of the prosecution and probation office.
Pena underscored that the defendants had cooperated and even met with the families of the victims, voluntarily jeopardizing their constitutional rights against self-incrimination. Not only have the Jensens accepted responsibility for their crimes, they have demonstrated "absolute remorse for what has happened", the prosecutor said.
Others were less sanguine that the brothers were really sorry about what had happened. Patricia ("Penny") Hauser, whose husband Michael fell ill from a contaminated cantaloupe while recovering from cancer and later died at 69 years old, lobbied Hegarty to impose jail time.
"I'm very bitter Your Honor," she said. "The thought of spending the rest of my life without him is devastating."
Heather Prins, one of Penny's daughters, also called for the judge to impose time behind bars.
"Their actions should result in severe consequences, jail time," she said. "These weren't mistakes. These were choices."
Others asked the judge to spare the brothers of time behind bars. Jim Weatherrred stood before Hegarty, sobbing and struggling to speak as he reflected on the fact that his late father—also named Jim and another victim who previously suffered from cancer—didn't want the Jensens to go to jail. The younger Weatherred said he spent his 29th and 30th birthdays in the hospital with his dad.
"Sending these two boys to jail is not going to help anyone in this situation," he said.
One family member of a victim advocated for the imposition of community service, such as requiring the defendants to educate farmers on food safety.
In Fall 2011, after the outbreak began, the Jensens attempted a recall of the cantaloupes. But it was "too little, too late", Pena said. The fruit had been distributed and eaten.
According to the Centers for Disease Control and Prevention (CDC), the outbreak was tied to 147 illnesses and 33 deaths. Also, one pregnant woman suffered a miscarriage. Pena said the death toll was actually closer to 40.
The U.S. Food and Drug Administration (FDA) found that several factors could have contributed to the outbreak, including failure to wash the cantaloupes with a chlorine solution.
Forrest Lewis, a lawyer representing Eric Jensen, said the brothers opted to change their processing system and purchased a potato washer that was used to clean the fruit. He said they purchased special brushes and washed the cantaloupes with city drinking water. Lewis rejected any suggestion that the defendants implemented the system to cut corners, and he cited the absence of FDA regulations requiring an antimicrobial wash.
The Jensens thought the system in place "was probably cleaner and safer," he said.
Pena confirmed with the judge that a chlorine spray would have reduced, but not entirely eliminated, bacteria. He said one can never be entirely certain that food has left a facility without microbial contamination.
Even if the brothers sprayed the fruit with a chlorine solution and the cantaloupes remained contaminated after being shipped, the same criminal charges could have been brought against the men, Hegarty pointed out.
That is because the crimes upon which the Jensens were charged do not require an element of intent. Hegarty also noted that food processors are rarely charged with a crime. That fact—and the absence of any intent to do wrong—distinguished the case from the average criminal prosecution.
"You see a case like this is very complicated. There is no easy answer," Hegarty said.
Lewis characterized the brothers as "good, salt of the earth, Americana people."
In brief statements in open court, Eric and Ryan Jensen both apologized to the victims. They showed little to no emotion. Ryan Jensen alluded to improvements in food safety in the United States and abroad as a result of the outbreak.
People began falling ill from the cantaloupes the same year President Obama signed a sweeping law (Food Safety Modernization Act) that is intended to prevent an outbreak of foodborne illness like the one tied to Jensen Farms. But many of FDA's food-safety rules still haven't been adopted, and it's unclear whether government regulations would have prevented a crisis that spread to 28 states.
Lewis said the source of the outbreak is still unknown.
"We don't know where this came from," he said.
Richard Banta, Ryan's lawyer, characterized the outbreak as "a true American tragedy."
"If there was a theme for this case, it would be remorse and cooperation," he declared.
Some family members affected by the outbreak criticized the Jensens for not reaching out and apologizing in the two years following the outbreak. Banta countered that the men weren't aware of the identities of the victims until last fall.
Lawyers for the defense pointed out that the brothers have filed a lawsuit against the farm's former auditor, Primus Group, Inc., and any proceeds in the case will be earmarked for the victims.
"Our work is just beginning in that case," Lewis said.
Fourth-generation farmers in Holly, Colo., Eric and Ryan Jensen know what's it's like to lose a loved one. Lewis noted that their dad died from brain cancer in 2009.
It hasn't been an easy road for the brothers. Jensen Farms filed for bankruptcy in 2012. In September 2013, the feds brought criminal charges against the two men. A month later, they pleaded guilty to six counts of adulteration of a food and aiding and abetting. Eric and Ryan were ages 33 and 37, respectively, at the time of their guilty pleas.
Each charge carried a maximum penalty of one year in prison and a fine of $250,000. Hegarty agreed that fines that would go to the government would not be appropriate and that restitution for the victims made more sense.
Dozens of civil lawsuits remain pending against companies in the food chain in connection with the outbreak. The Jensens' testimony could prove crucial in establishing the culpability of third parties like Primus. Several family members of victims called for others in the food chain—including grocery stores that sold the cantaloupe—to be held accountable. Hegarty said keeping the Jensens out of jail would allow them to generate income for their own families and the victims.
But money alone cannot heal deep emotional wounds stemming from one of the deadliest outbreaks of foodborne illness in recent times. Penny Hauser feels guilty for buying the cantaloupe that sickened her husband even though she could have had no way of knowing it was tainted.
"He was only 69 years young," she said.