Courtroom Results

Mark W

Mark W

Well-known member
A week ago Wednesday I was in court on the charges of having in my possession 2 hen mallards when only 1 hen mallard is allowed. To make a long story very short, I was found to have been in violation of the law and ordered to pay for court costs only, nothing more. Total fine was $123 bucks I believe. Original ticket was to have cost me close to $300 I believe and could go as high as $2000. Now, as Paul Harvey asys, the rest of story.

I arrive at the courthouse to find the CO, a couple other people I have never met but they are in uniform, and the DA all chatting outside the courtroom. I say hi and shake the CO's hand. I walk into the courtroom just in time to see someone being escorted in wearing ankle chains, handcuffs and everything else imaginable. Not a good guy. I hang around to watch the proceedings and was amazed at the Attorneys conduct. I'll save this for another story.

My case is up and the State's team is brought in. They introduce everyone and the CO is called to the witness stand. The DA questions him and while not everything that the CO says is accurate (from my reccollection of what happened and was said that day), it was a fiar representation.

I'm now given my opportunity to question the CO. I establish that we had never met prior to that day, that the conversation was cordial, that I assisted in his investigation of other crimes that day and a couple of other unimportant stuff. I then begin to question him on the identification of the duck in question. My problem was that the judge was not a hunter and was stuck on the duck in question being either a hen or drake mallard. I kept reminding the judge that the State had to prove that the duck was both a hen AND a mallard for me to be found guilty of the crime in question. I'm not so sure he ever understood why this was important.

I basically quiz the CO on he ID'ing of the duck and that I was saying it was a cross, not a straight hen mallard. The CO admits to the judge that he has not seen first hand a cross mallard/black but knows the duck in question isn't a cross. I proceed to introduce evidence (lots of pic's from the internet)that a crossed black/mallard looks exactly like the duck in question except for the size of the duck being somewhat small. He disagreed. I thought I had done a good job of introducing doubt.

By the CO's own earlier admission, he said that a hen mallard having green on their head is possible in that each and every duck has their own unique attributes. I found this comment interesting as it is these attributes that one must judge whether they are in compliance with the law or not. I use this comment to say that I agreed with him completely and that is why the duck I had shot was questionable and not all cross breed are exactly the same either.

I then go down the mottled duck route as the duck in question had many characteristics of this duck as well. It even had hints of the black ring mentioned on this site on the bill where it attaches to the head of the duck. The CO had heard od Mottled but never heard of them up here. I then proceed to show evidence that mottles have been found in the upper midwest. Didn't matter to the judge, he was still trying to figure out if the duck in question was a hen or drake.

One other witness was called to the stand and questioned by the DA and myself. I didn't find him to be of any help to either side.

I was in front of the judge for an hour and it was very clear he was interested in closing this case and getting on with the rest of his docket. It was also obvious that he was confused and that he was leaning towards the State's side of the case. He called myself, the CO and the DA to the bench for a personal side conversation. He asked if the State would be OK to make this a strickly liability case only (which I thought it was anyway) they agreed, and he asked if they would make the fine only to that of court costs which they also agreed to. Both of these were OK by me.

So, I was found guilty. I do not agree with the outcome and do believe that an Attorney could have exploited some of the incisistencies on the State's case against me. Am I glad I handled it the way I did - yep. I would do it the same way again next time (which there won't be by the way) in the exact same circumstance.

I met the CO and others outside the courtroom after the case and we all shook hands. There are no hard feeligns between the CO and myself which is importatnt to me. I stand by my earliest comments that the CO is a good guy who was just doing his job. Could he have made it easier on me - without a doubt. The fact that he did what he did is just doing his job.

Will I ever get myself into this type of situation again - never ever. I'm burying the next one. I'm kidding, I'm kidding. If a questionable duck is shot, it is counted in the bag as a duck that it most closely resembles or the one that has the tightest bag limits upon it.

One other interesting fact, the CO read some of the comments on this page about this case. Be good now.

Finally, thanks again to everyone for the guidance. It was very useful. Believe it or not, I enjoyed the whole process (as sick as that sounds) and know I'll be a better hunter because of it.

Oh yeah, for all of you who had dibs on my various hunting gear, you'll have to wait until next time.

Mark W
 
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Congrats Mark.

small fine, no limits on future hunts, overall pretty much like you expected.

Have a great hunt next year and again congrats on the job as well.
 
Sorry to hear, but not a horrible outcome.

Do you have any pics, it si killing me?.
 
I'll scan the documentrs at home this weekend and see how they turn out. I promise nothing as the pictures really don't show the coloration differences. I was sort of disappointed in that they only used the pics of the bird in the courtroom, not the actual birds. They had the birds with them but I don't think the judge was keen on having the dead birds displayed in his courtroom.

Mark W
 
I'll scan the documentrs at home this weekend and see how they turn out. I promise nothing as the pictures really don't show the coloration differences. I was sort of disappointed in that they only used the pics of the bird in the courtroom, not the actual birds. They had the birds with them but I don't think the judge was keen on having the dead birds displayed in his courtroom.

Mark W
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Just for my own peace of mind I would have looked at the wing and seen if there were any black feathers on the white underside.

Glad you got it settled and over with, it doesn't sound like it is was too bad for ya.

Tim
 
Mark
You did what you thought best and evidently did a good job---it took guts to handle your case and you certaintly have that. It doesn't sound like either the judge or the CO learned anything but hopefully (maybe)there was some education there that will help some future duck hunter.
wis boz
 
Mark, Congrats to you for standing up for yourself. Sorry to hear it wasn't throw out of court, but at least you still have your right to hunt. I'm glad you used your right to fight!
 
Mark, just a simple question---was the bird introduced as evidence, which it should have been, and if so , was it"sexed", to ascertain whether it was indeed, male or female? That is not a very difficult thing to do, and, noting the presence of green on the head, i would have identified it as a mallard black cross---and a male, without even checking the cloaca.
Hope you never have to go through that bravo sierra again!
 
Although I am not a lawyer, I have advocated cases before arbitrators and judges on behalf of an unnamed federal agency. Based on my experience, you were well prepared and presented arguments and doubts, that should have exonerated you. You can take solace in that, even though you did not get the outcome you should have. If you had esq. after your name, you would have gotten the case dismissed in my mind. Great job !! Our court system is broken, when John Q. Public has to hire a high priced attorney to succeed in a court of law.

Mt2c
Bill
 
You said the CO was a good guy, that's nice... but remember, he has the discretion to write or not. If their was any doubt of the sex or species, he could have let it go, or given a warning to be more careful, and this was after you helped him.

If you want to really see how nice he was, see what would have happened if you beat the case, then him and his buddy CO's would have you marked for "special attention"

All in all, you probably did the right thing, considering how it could end up on your next meeting.
 
Mark, just a simple question---was the bird introduced as evidence, which it should have been, and if so , was it"sexed", to ascertain whether it was indeed, male or female? That is not a very difficult thing to do, and, noting the presence of green on the head, i would have identified it as a mallard black cross---and a male, without even checking the cloaca.
Hope you never have to go through that bravo sierra again!
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The duck in question was sexed after it was taken back to wherever it is that CO's take confiscated ducks. According to the testimony, it sexed out as a hen.

Some dat I'll see if I can get the transcript. It could make an interesting read.

Mark W
 
if it was not done in your presence, it is just plain hearsay!! it is abundantly obvious that the co wa NOT an expert, and, if you did not see the procedure, you should not believe it!!
water under the bridge!
 
Ill take the other side here, just because its the off season.
I'm still not sure why the chance of a field ID of a cross, if that is what it was, justifies taking a shot at a hen in an area where the hen restriction is in place.
We are under a 1 black duck a day limit in CT and I can tell you that many times the diff. between a hen mallard at 35 mph and a second black duck at 35 mph has been the cause of many "over bag" situations in this state.
It just seems prudent to lay off the hard "on the wing" ID's.
I do realize that you have stated that you would now take that route but I'm not sure why so many think hair splitting is the way to go. A hen mallard just doesn't seem like that much of a trophy to me esp., considering the rules in place on the ground where the hunt took place.

I'm not sure of the science behind the hen restrictions, but I understand the desire of the rule is to help with next years ducks and don't have a problem with passing um if that is what the book in your state says. And to expect a pass when 90% of the folks looking at the bird you bagged would think "Hen Mallard" seems like a big risk in the eyes of the law for a bird that is not high on the must have list.

On the side, I give you credit for using your rights as a citizen to have your story heard, and hate hearing the "Club atmosphere" that you ran into between the Judge, DA and the others involved. I can imagine the frustration of explaining a hunting situation to a non hunting judge. I would think that you had to do more than create doubt in that situation. Esp. with the State Biologist behind the Warden. You needed a slam dunk that day to avoid the "Guilty Plea". With a bench full of Drug dealing father rape'rs, I am sure the DA and Judge did not want to take time out of their 8 hrs to talk ducks.
 
I'm glad you are satisfied Mark. I know this has been bugging you for a while so it must be nice to put it behind you.

Over the last 10 years or so a number of questionable calls on the part of the CO's around here has convinced me to NEVER call them for help. It is shoot, shovel, and shut up as far as I'm concerned. I never tell them where I'm hunting or anything about the adventures. I don't think they are out to get me, they treat everyone with the same contempt and lack of respect. You got a bear trying to get in your house? Take care of it yourself and keep it quiet.

My 2 cents,

Mike
 
Ill take the other side here, just because its the off season.
I'm still not sure why the chance of a field ID of a cross, if that is what it was, justifies taking a shot at a hen in an area where the hen restriction is in place.
We are under a 1 black duck a day limit in CT and I can tell you that many times the diff. between a hen mallard at 35 mph and a second black duck at 35 mph has been the cause of many "over bag" situations in this state.
It just seems prudent to lay off the hard "on the wing" ID's.
I do realize that you have stated that you would now take that route but I'm not sure why so many think hair splitting is the way to go. A hen mallard just doesn't seem like that much of a trophy to me esp., considering the rules in place on the ground where the hunt took place.
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I think you missed the first part of the story a few months back. The first duck I shot was the duck in quesiton and to me, it was without a doubt, a crossed duck. We get many of them in this part of the woods and I have shot more than my fair share of crossed ducks. Since it was plainly a crossed duck to me, when I saw the drake and hen mallard come in, I didn't think twice about shooting both as I had not shot a hen before I pulled the trigger on them. I was perfectly legal to so so. Will I do it again, nope. It isn't worth the headache since I know know what you are up against when having to deal with the courts. Unless I want to spend $1000's no way is it worth it. Mark W
 
Sounds like you got the next best thing to .....the best thing. It's hard to imagine the judge just not getting it...but it's hard to imagine the co taking this to this extreme. Good lesson for us all.
 
glad to hear everything turned out all rite. for your own info i hunt long island and was stopped by a co that had been watching me hunt and met me at the dock i was hunting a spot that all you shoot is "black duck" with green heads hybreds but since he stopped me i asked do they count as ducks or black ducks with a 1 black duck limit i could shoot 5 if they were considerd "ducks". he told me even though they had green heads they were black ducks. i did not argue but i did not think black ducks had green heads.but i enjoy hunting and dont enjoy court so i call them black ducks just not to be hastled i still feel they are hybreds... whatever
 
I did not follow the story carefully when it was posted orig., because I felt, at the time, the same way. Just because the cross was a "Common" previous bag item and was harvested many times before does not mean the state thinks its a non hen. They see a guy with a non drake mallard, rightly or wrong. And IM betting your DNR wildfowl reg. book does not have a page on the Cross. So, as I stated, the risk of being thought to posses a hen when the cross does not look like a green head drake, would have given me pause at the hen in the pair.
I would also think that a guy would want to be damn sure he could demonstrate without a doubt, and the internet after the fact, that the cross was a drake or face the hen charge.
How one determines that in the field, seems risky.
It seems to me the hen rule is in place to give a guy a fair chance to make a daily one time error(IE not a drake), but the intent of your states reg is to lay off the hens and take drake green heads, and it seams that the wardens are keyed in on the mallard rule as to intent.
I am not a big proponent of no hens, but understand those that are and the history of it, and it sure looks like in your state the law expects for you guys to pass the non male puddler(Park) type ducks.

My argument comes from the perspective of not wanting to read three more pages of painfully written detail text in my reg book next year explaining the X's and O's about one species because the DNR is trying to write rules to keep the hair splitters at bay.
If the rule says one drake scaup a day and a guy has a scaup/GE cross and a scaup it sure seems clear enough to me.
If I missed the part where it was clearly shown, that the bird was not only a cross but also surely, without a doubt, a drake cross by you and not someone after the fact, then you have the floor. I sure would not risk my butt on that with a hen rule in the book I hunted under.
I will also say I do not have the issue's that some here clearly do with CO's. I have seen and heard too many of the slob/hunting/poaching stories that justify why they are tight to the book.
We have a hunter in our area who has had multiple complaints (RE over bag, shooting too close to occupied dwellings, and others). I had the pleasure of sitting thru a public reg's hearing with my 9 year old son as this guy asked multiple questions about why he couldn't shoot his Black/mallard cross and his black duck each day.

As I said, just another perspective, prob. not one that works for you.
 
Mark, I would have to say congrats! Not thrown out of court but not too bad either. You did the right thing and we all here are sure you were in the right. It is a special insult when we try to a fault to play by the rules and well with others and this happens. I'll give you a call one of these days and we can maybe bend an elbow somewhere.
 
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