POST 40: Investigation Report Page 9 - Reference to May 10th Conversation with the Investigator

Page 9 of the Investigation Report referenced the May 10th conversation between me, my attorney and the Game and Fish investigator

The image below highlights the area in the report which referenced the May 10th conversation with the Game and Fish investigator. 

If you can't read the image, here is what it states, "On May 10, 2019 Winkelman talked to VOLK and Lofgren by telephone. Winkelman informed VOLK that he would be issued a written warning for illegal possession of a fould hooked fish. VOLK asked about the record status of the fish and Winkelman informed VOLK that the fish would not be recognized as a state record. VOLK asked to have the written warning mailed to him. Winkelman mailed written warning NO. W02490 to VOLK on May 10, 2019." 

If you have not read POST 28, I will provide the recap below: 

The actual May 10th conversation with the investigator went like this...

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. When I arrived at my attorney's office, we completed a conference call with Winkelman. In part, this is what was stated during that conversation: https://youtu.be/3pGiEFcWGmA.

• 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 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.

So many questions... Why wouldn't an investigator want to review all the evidence? 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 record and as a way to make me appear guilty without giving me an opportunity to present my evidence and prove my case in court?

I offered my evidence which included images and video of the walleye, my wife's video of me reeling in the walleye and even the walleye itself. It was refused by the investigator. 

To make matters worse, they intentionally omitted the details of this conversation in the Investigation Report. Was this done to mislead you and make it appear like I just accepted the written warning?

It is illegal for a state agency to intentionally omit information in a written document to mislead!

Changes

No matter what your thoughts are, I wholeheartedly believed (and still 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 was so sure of this, I offered the investigator my walleye and my evidence. I never thought my evidence would have been refused, and it still baffles me to this day. Would't you want to review ALL of the evidence and even the walleye before giving someone a written warning and making the statement their walleye didn't qualify for a record? Wouldn't you want to make a conclusion based on the actual, physical evidence of the condition of the walleye? I know I would, especially considering a wrong conclusion would destroy a reputation and cause damages to a citizen.

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.

#northdakotaslargestwalleye  #volkswalleye  #justiceforthelargestwalleye