The wheels of justice move slowly - today's court review

Mark W

Mark W

Well-known member
Went to court again today (pre-trial hearing) for the game violation mentioned previously. Once again, I was amazed at how the system works. I was offered a reduction in the fine (from $278 to $208) if I were just to plead guilty. I declined the offer and talked with someone who couldn't do anything for me other than schedule a court date. I asked that the charges be dropped or that I be put on probation for a year or two but without the officer present, she couldn't do this. I had an opportunity to tell my story but I could tell she wasn't a hunter and didn't understand the differences I was explaining and showing via pictures. She was nice enough and in the end said go to court as I was so certain I had done nothing worng and that I had pictures to show that the officers statement was not 100% accurate. I asked for a jury trial but she said that I would have had to pay a $36 jury fee at my last hearing for this to have occurred. Wish I would have known this. I remember the mention of $36 being made but I also recall that it wasn't mentioned it had to be paid on that day. I was under the impression that I could pay it after /during my pre-trial hearing. Oh well. I know I would be able to plant doubt in a juries mind but I don't know if I will be afforded the same benefits going just in front of a judge.

The last time I went to court, 11.12.08, I requested discovery of all information to be used in prosecuting my case. I got home last night to find that it had finally made it to my door - 14 hours prior to me going in front of someone to discuss my case. I thought that was cutting it a little close. I read the report at home last night and again this morning and found a number of discrepancies from what actually occurred and what was written in the Officers report. Here is where we differ on the events of the day. I'll add my comments [inside of brackets].

"Wollner had 2 drake males, 1 hen mallard and another duck Wollner claimed was a cross or hybrid duck. Wollner was unsure what type of cross or hybrid it was but was adamant it was not a hen mallard when asked and questioned by Sickman " [not completely a true statement. I was unsure as it had characteristics of more than 2 ducks. I explained why I thought it could be a black/mallard cross but that the size of the duck and especially the size of the head indicated it could be some other variant. This made my mallard/black cross not 100%].

"Overall the duck was brown with a bit of green on the head" [this is true but unfortunately the brown was significanlty darker than the hen mallard also taken that day. I have not seen a hen mallard that was that dark. Also the green on the head I thought was pointing to something other than a hen mallard]

"Wollner was adamant [I was certain of my identification and was friendly - adamant to me implies being a jerk which I wasn't] that the duck was not a hen" [not true, I was certain it was not a hen mallard, I was certain it was a hen, just not a mallard], "but a cross or hybrid, maybe with a black duck. The duck was not a cross with a black duck as black ducks have no white on the speculum" [this is not a true statement by the oficer as mallard/black crosses have white on the speculum and I have pictures that show this].

"Wollner pointed out the much smaller head and the green on the head. Sickman observed this and stated that ducks like people have variation in color and traits" [the officer never said this]

"Sickman asked why would Wollner shoot the 2nd hen mallard if Wollner did not know the true identification of the first duck. Wollner stated again that he would not have shot the other hen mallard" [I never said this, implies I knew the first duck was a hen mallard] "if he thought this duck was a hen mallard. Wollner again stated that he was positive that it was not a hen" [not true, I've always said it was not a hen mallard - I believe there is a difference] "but some type of cross or hybrid but did not know what type of cross or hybrid it was" [once again, not 100% accurate. I pointed out that I was certain it was a mallard/black cross but that a couple of characteristics didn't point this way]

"Sickman told Wollner that Sickman would check with wildlife about their determination of the duck. Sickman stated that it was a hen mallard but would wait for wildlife's decision" [not true either. After I pointed out the descrepancies and brought out my LeMasters and other duck ID book always with me, the officer stated that now he was rethinking his hen mallard ID and that he was going to bring it in for others to identify] "Sickman made this decision as Wollner seemed genuine about the duck and referenced his previous relationship with former St. Croix County Warden Richard Rosen and his forwarding of complaints to Rosen."

There are also pictures of the duck but they are black and white and don't really show much of anything. I have requested color photos prior to my next court hearing in front of a judge scheduled for 12/22 at 2:00 pm.

So, what do you all think? Comments? Suggestions?

Mark W
 
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"duck was not a cross with a black duck as black ducks have no white on the speculum" That one line is all it should take. The CO doesn't know his ducks. Not only can Black Ducks have a little white on the back edge of the speculum a Mallard x Black is identified by the amount of white.
You should have someone email the state waterfowl biologist and ask how to identify a Mallard x Black cross.

Can you post one of the B&W pictures? They might tell more then you think, especially if they are of the wing... either side.

Tim
 
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Try to get a Prayer for Judgement continued and it may never come back before the court. I would procure the aid of a good attorney as that will be cheaper and less hassle in the long run. Sometimes we really screw up when we try to go the cheap riute or beat the system.

best wishes,
Harry
 
While in court ask if the GW used a recording device during your conversations. It is obvious that he did not or transcrips would have been provided, but just maybe he did and is withholding evidence. Local officers up here are all outfited with the little MP3 style recorders in their vest pockets. There can not be a "he said she said moment" anymore, but they lead folks astray by still taking notes and letting them think that everything they are saying is not being documented.

Ask how long between the time the converstation took place and the time the GW wrote it down, this can play to the reasons there are two versions of the what was said. Use your post on here to provide your own rebuttal to his statement.

It sounds like you aleady have several color photos of other hybrid ducks. Make more and make sure you have at least two copies of each photo. The judge and the officer will need to have them in their hands at the same time. Keep the data flowing to the judge.
 
Mark,

Over the weekend I shot a Mallard / Black cross. With my bag limit that day it did not matter which it was. Quite hard to ID.

As for your case I would suggest taking both a hen mallard and a drake mallard (frozen) with you. I would make the State produce your duck as evidence. NOT pictures and certainly not black and white photos. If they can not physically produce your duck as evidence then ask for the case to be dismissed. They have to produce the evidence! Don't give in to photos. The size of the head could be much different from one photo to another if they are using the head for comparison.

Also, your thought process as to why you shot another duck after having a hen mallard already in the bag should not be a part of this discussion. The issue at hand is the ID of your duck that you no longer possess. The thought process is irrevelent to the case. Make them stick to the facts. Not heresay or conjecture. It's ok for the officer to be wrong. It is also ok for you to ID a duck on the wing before shooting. You knew what you had in the bag and knew you were not shooting another hen mallard.

I will suggest again that they physically produce the evidence no matter what condition it is in now. No physical evidence should equal no case.

This is just my opinion and I am not a lawyer. Just another waterfowler concernerd about your goodwill and the outcome of your trial.

Good luck and god bless you for taking a stand.

RVZ
 
You may be better off without a jury. Unless you have a good lawyer when selecting the jury, the prosecutor will load it with people that don't think you should shoot any duck. After reading the officers report, I can't believe that you couldn't persuade the judge that nothing "illegal" took place. The officer noted that there was green on the head , which by his way of thinking in reference to the no white on speculum, should be considered a drake any way.I'd run with what you have and then appeal if found guilty and get a lawyer.
 
The I said-he said stuff has never bought anything when I have been to court. Just worry about the facts and proving it is not a hen mallard. Just the fact that the GW could not field id the bird says a lot to me.

You know what the say about the man who represents himself in court? He has a fool for a lawyer.
 
To add just a little to the above post. There was more to the report but I didn't feel it important. The officer also noted that he showed the ducks in question to other oficers who id'ed the ducks as both hen mallards. One of them even exposed to genitals to determine it was indeed a hen.

As far as an attorney. I'm waiting on that. I believe that the truth will prevail and that the case will be thrown out. If this is not the case, then an appeal with an attorney is a consideration but will need to weighed against other expenses more important to raising my family then clearing my name. I'm not too proud to say that but it is what it is. Funny thing, I came across a picture of exactly what I shot on the internet. Go to this linked page below and scroll down to the 8th and 9th pictures. If memory serves, these are real close to what I shot. Put the head of the 9th photo on the body of the 8th photo and make the whole duck 1/2 - 2/3 the size of a normal mallard and that would be the duck.

http://10000birds.com/hybrid-mallards.htm

Mark W
 
Mark,

Don’t focus so much on what the CO said or how he mis-interpreted your statement. Don’t make it personal. The judge doesn’t care about this. The only thing that will matter (IMHO) is whether it’s a male or female bird. It doesn’t matter what you THOUGH you were shooting at or what you THOUGH the sex of the bird was after shooting. That defense won’t hold water. As I see it, these are the things that you need to focus on.

1. Get the State Biologist’s written report (if thee is one) which I understand from your previous post says that the State is “fairly certain” it’s a female bird. You need to know exactly what it says. If the State can’t positively sex the bird, then it seems you have a good defense.

2. Get one or two unbiased expert witnesses to sex the bird. If the bird is still available for inspection before the trail, have your experts render an opinion as to the bird’s sex. Get a notorized statement from them or have them appear in court. It may be difficult to find such an expert willing to help (maybe a college professor), but if you do, have them look at it before the trail so you know what your chances of success are.

3. Get some type of legal advice. If you don’t hire a lawyer, or if the court doesn’t appoint one for you, at least speak to one that could give you some pointers

good luck
 
Since you and the warden both agree that the duck is a hen, the only issue at stake is whether the duck is a mallard or a mallard hybrid. If it's a mallard hen, you are in violation. If it's mallard hybrid hen, you are not in violation. The warden has a statement from a DNR biologist stating that it is a mallard hen. How are you going to contest that?

Looking at it from the judge's point of view, he or she is going to hear that the warden made a field ID of a mallard hen, you contested that ID, so he gave you the benefit of the doubt and sent it into a DNR expert who confirmed his field ID.

So, as Larry pointed out, you will have to provide expert testimony on your behalf or you are sunk.

The other way to go would be not to challenge the sex and species but just to give evidence to the judge about how difficult it is to make an ID in certain cases. You could have an expert testify that the duck might be a mallard hen, but that he or she wouldn't expect the average hunter to know that given its appearance.

Also, since the former warden Richard Rosen is mentioned in the report, would he be willing to provide a statement on your behalf, saying what a fine, responsible hunter you are, etc?

Rick
 
You may want to do some e mails and phone calls to various partys such as DU and some of the state dec and college's that are doing black duck or other surveys.
Find how they sort the ducks they band. Example if the trap and band a black duck they will count it as a black duck, if they trap a mallard it is recorded as a mallard. When they trap a hybrid how do they sort it?
Get state dec and colleges and Du to fax and e mail you info
Also Show an example of a AKC dog..
Also get the dept of interior involved The federal Game warrdens
Lab x Lab = Lab
Golden x Golden = Golden
Lab x Golden = Mix or not able to sort by breed..........
The more paper work the better.
 
Mark,

You need some letters of support from some actual experts if you plan to counter what your state waterfowl biologist says.

Post the picture they gave you.

T
 
Well this must be a hen mallard then. I feel for you. You may use this pic if it will help you in any way.

Blackduck.jpg


View attachment Blackduck.JPG
View attachment Blackduck.JPG
 
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Mark
Bite the bullet and get an attorney. Isn't there an attorney on this forum to give you a hand? We could all kick in and help with the fee not that you couldn't handle it but we would send a message.
wis boz
 
It sounds like the variation in colors is the opinion of what it represents. Someone would have to positively identify the actual sex of the bird to know if the majority of the coloration represents the type of bird in question.

.
 
Mark

Get in touch with Jeff Lawrence, Group Leader, Bemdiji, tel. (218) 308-2284. Ask for him or Steve to positively identify the subject animal. I would ONLY accept a gender determination by cloacal examination.
 
I'm not a lawyer or a biologist, but I am pulling for you for sure. If it gets to where you incur some legal costs I'd be happy to carve something to raise a few bucks. In fact, get me a pic of what you shot and that's what I'll carve!

You may want to contact Delta Waterfowl and speak to Joel Brice. He is quite respected and knowledgeable and could offer you some good advice I'd guess.

Best Wishes!
 
Dad used to feed some tame and semi-wild ducks and from what we saw a hen mallard is a ho. Seems that she would breed with anything that would hold her head underwater. Most any wildlife biologist would know that hen mallards aren't too selective.

hope you beat the rap,
Harry
 
Dad used to feed some tame and semi-wild ducks and from what we saw a hen mallard is a ho. Seems that she would breed with anything that would hold her head underwater. Most any wildlife biologist would know that hen mallards aren't too selective.

hope you beat the rap,
Harry
Click to expand...

Is this the old "she was asking for it" defense?


I wish you good luck with your case.
 
Last ime I was subpeona'd, a few months ago, the guy who subpeona'd me had written notorized statements. The judge would not allow them to be introduced. The people had to be there in person to allow cross examining.

Something you may want to check on. A layer should know what line of defense to pursue.
 
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