POST 28: Evidence Offered to Game and Fish - Conversations with the Investigator

My First Conversation with the Investigator

May 1st, 5:57pm, was the first time Scott Winkelman from Game and Fish contacted me and asked if I would provide a statement. I told him I would have to contact my attorney and ask for advice before I could agree. Scott replied, he only wanted to ask a few "simple" questions. I asked if Gibbs was being charged with a crime. Scott replied, “no.” I replied, “Good. Because all he did was net my fish.” I asked why Game and Fish didn’t do a better job of verifying the walleye when they had exclusive access to it. I also asked why they published a press release announcing the new record if they had concerns. Winkelman stated, “because we didn’t have any reason to believe otherwise.” I stated I would get back to Winkelman about providing an official statement once I heard back from my attorney.

On May 1st at 6:04pm, I spoke with my attorney. He reminded me Game and Fish was still looking to press criminal charges and advised me not to provide a statement. The attorney also recommended to not hand over any personal property (the walleye) unless Game and Fish went through the proper procedures to acquire it.

My Second Conversation with the Investigator

On May 2nd, 8:02am, I called the Game and Fish lead investigator back and explained how I was advised not to provide a statement due to the criminal charges. Scott replied, “I was expecting that.” Winkelman asked if he could take the fish. I replied, “Yes, but you will need to get a warrant.” I stated, "I would love to” provide a statement because it would clear some things up but was advised not to due to the criminal charges.

I again asked why Game and Fish didn’t do a better check of the fish when they had access to it. And stated I was “frustrated” with what was happening. Scott again stated, “They had no reason to believe otherwise.” I said, “I am 100% sure the fish was hooked in the mouth.” Scott replied, “You are the only one.” 

After the investigator made the statement, "you are the only one," I knew listening to my attorney's advice was the right decision. To me, the statements made by the investigator suggested his mind was already made up and there was no way to change it. 

I chose not to send my walleye to the taxidermist because, I was expecting and even hoping Game and Fish would acquire a warrant to examine the walleye. The taxidermist wasn't happy about my decision because he stated the longer the walleye was in the freezer the more it would deteriorate in condition. Even though the taxidermist didn't necessarily agree with my decision, he helped me draft a document outlining instructions for the care of my walleye if the investigator were to seize it. Both the taxidermist and the attorney reminded me the fish was my personal property and must be taken care of. Even if it were to be seized, it remained my property unless convicted of a crime in a court of law. 

May 10th Conversation with the Investigator

Days went by, and I hadn't heard any news. Game and Fish never came to get the walleye. Then on May 10th, I received a call from my attorney. He said to meet him at his office around lunch time. He said we are having a call with Winkelman the lead investigator with Game and Fish. 

Lunch couldn't come fast enough. I arrived at the attorney's office for a conference call with Winkelman. Our call lasted approximately 20 minutes. In part, this is what was stated:

• Winkelman stated, “…done with my report. Brought it to the state’s attorney. What I am going to do is issue a warning for keeping a foul hooked fish.” 
• I stated, “How does that work with the record…what would be the reason for the warning?”
• Winkelman, “The decision has been made that our department will not recognize it as the state record.” 
• My attorney asked, “Is there an appeal process for that?”
• Winkelman, “I don’t have an answer to that question…the decision has been made it will not be recognized…state record program is not in Century Code, …not in Admin Rule, there is nothing regulating that.”
• Attorney, “Tom has pictures and videos. The fish has a hole in the mouth and no scales missing. And, there was a witness stating it was hooked in the mouth.” 
• Winkelman, “Again, I am only writing you a warning.” 
• I stated, “But it just that the record wouldn’t be recognized. And, I don’t think I did anything wrong…that’s the problem. Would you be willing to look at these images and pictures and bring this back?”
• Winkelman, “Right now, my investigation is closed.” 
• Attorney, “If we could provide evidence that would substantiate that this should be the state record, I think that is in everybody’s best interest.” 
• Winkelman, “I guess it that evidence existed…not sure why it didn’t come out when the investigation was open. If it was my fish, I would have been providing that instantly…” 
• I stated, “I would have, Scott except I was told criminal charges were pending.” 
• Winkelman, “Sure.” 
• Attorney, “You know how that goes.” 
• Scott, “Yup.” 
• Attorney, “If we can clear up any controversy, I think that would be in everyone’s best interest…”
• I stated, “Especially since you guys were there with 3 officers who had exclusive access with this walleye for 2.5 hours…took pictures and video…asked how I caught it…frustrates me there wasn’t a better protocol in place to cancel out these rumors…if they followed a process…they could have had a report or document…you said you had no reason to believe otherwise…” 
• Attorney, “The fish hasn’t been taken to the taxidermist…the only thing wrong with the fish is a torn soft dorsal…Tom does have pictures…no damage to the body of the fish…fin…does have a tear in it…it’s clean through…would think that if the fish would have been hooked on that, it have come off in the water… 
• Winkelman, “Right, it wasn’t hooked in the fin.”
• Attorney, “So then there should be some damage to the back of the fish…shouldn’t there?”
• Winkelman, “I’m sure there will be a hole, certainly.”
• Attorney, “If you examined the fish…to haul a fish of that size…it would have to leave a decent hole in the thing…?” 
• Winkelman, “Not necessarily…depends on drag…type of rod…obviously the fish wasn’t coursed to get in, that’s for sure.” 
• Attorney, “Do you think if you looked at it you would be able to determine that?”
• Winkelman, “I don’t know what it’s going to tell us other than what we already know…”
• Attorney, “If you could look at it and see if there are no scales missing…point this to one way or other…we do have video of the fish…Tom reeling the fish in…see the fish breach the water in the current…don’t know if that would enlighten…or not…it’s a better video…”
• (12:12) Attorney, “It is not often…when there’s not going to be criminal charges…offer to give up evidence…before you issue the warning, Scott, how about this…what would you think about taking a look at the fish and the video Tom has and after that make a decision as to what you want to do…” 
• (12:39) Winkelman, “I don’t know that I am going to do that right now…again, the decision was made to issue a warning…when I talked to Tom last week…we would make our decision based off what we have…it’s just a warning.”  
• Attorney, “What I would like to do is if somebody could look at the fish…hole in the mouth…no signs of damage to the body…looks like it was fair hooked…submits whopper club…?”
• I stated, “I am concerned it will have that cloud no matter what happens. I don’t want to have a record that is clouded in any kind of controversy…”
• Attorney, “If you think that looking at the fish would give you any indication as to how it was hooked…”
• Winkelman, “Even if there is a hole in the mouth, that doesn’t prove it was legally hooked. It could have been hooked by someone before Tom caught it…” 
• I stated, “At this point, …I don’t even want a record that is controversial. And if there’s people that say I foul hooked it, that kinda makes me mad…I don’t know what to do.”

Here are some of the sound clips from this conversation outlined above: https://youtu.be/3pGiEFcWGmA.

I was aware of the possibility of criminal charges, but was actually looking forward to taking my case to court. A public hearing where I could call on my own witnesses and provide my evidence would put an end to the investigation and the potential charges. But, when Game and Fish announced they were "not going to recognize" my walleye as the new record and instead issue me a "written warning," I couldn't believe it!

I couldn't understand why Game and Fish didn't want to look at my evidence which included the walleye, and why I was going to be given a written warning. 

I tried to ask several times what evidence was there to prove the walleye was foul-hooked. I never received a clear response from the investigator. 

Here is the full recording of the May 10th conversation between me, my attorney, and the Lead Investigator for Game and Fish: https://youtu.be/njVMtgyvAZE.

Changes

I wholeheartedly believe my walleye was caught legally before it spit the hook in the net. The physical condition of the walleye supports this. There is a hole in the mouth and string burn on the cheek. There is no damage from a hook to the back, body, tail or fins. I am so sure of this, I offered the walleye and my evidence to the investigator. I was really hoping and actually expected they would inspect my evidence before giving me a warning and making the statement my walleye didn't qualify for a record. 

Why would an investigator refuse to review new evidence? This is unethical. My evidence should have been accepted and reviewed when it was offered. 

Is an investigation truly "closed" prior to the statue of limitation? Why was I given a written warning? Was Game and Fish being "nice" to me as what was stated by the investigator in the conference call? Or, was the written warning used as justification for stripping me of a potential record and as a way to make me appear guilty without giving me an opportunity to prove my case in court? A written warning prevented me from being able to confront adverse witnesses or call on my own witnesses. It also prevented me from being able to present my evidence including the walleye.

Giving me a written warning and stating my walleye didn't qualify for a record "punished" me without Due Process of Law. 

When Game and Fish "concluded" and stated my "walleye didn't qualify" they acted as the judge and jury. Is this legal to do? Due Process of Law is the guaranteed rights per the Fifth and Fourteenth Amendments to the United States Constitution as a safeguard against unfairness in all legal matters to prevent inaccurate or unjustified decisions. Due Process gives each person rights such as:

• A hearing before an impartial person.
• The right to cross-examine adverse witnesses.
• The right to present evidence, including the right to call on your own witnesses.
• An opportunity to appeal a decision.

I'm not an attorney, but according to Due Process of Law, I believe Game and Fish violated my rights. These types of actions need to stop.

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