Northwoods Sporting Journal
March 2006 issue
“One Fish, Two Fish...”
“...and sir, isn’t it standard to take pictures during an undercover operation?”
“Yes.”
“And yet you didn’t in this case?”
“That’s correct.”
“And isn’t it also standard to make video tapes and/or sound recordings?”
“Yes.”
“And yet you didn’t in this case?”
”No.”
“And you took no notes?”
“That’s correct.”
“And the so-called 3rd fish that you allege you were allowed to take over the limit of two–– what happened to it?”
“I ate it.”
The “one-fish case” had wound down, after two trials and almost two years, to a near-conclusion when the District Court judge said he had a nagging question. He referred to the guide-client relationship as a partnership––one hired to help the other, both handling the same equipment all day. In that context, what was the language of the law as to what constitutes who caught what fish?
The silence was deafening. Behind the prosecutor were the chief warden for the state of Maine, Tom Santaguida, the undercover warden, Albert St. Saviour, District Warden, Brad Richard, and his supervisor, retired Sergeant, Mike Marshal. All looked at one another, then stood and went into a huddle behind the prosecutor’s table. Under pressure, they flipped through the pages of their own regulations manual, but to no avail. A dictionary was requested from the clerk. And still, no answer came.
After several minutes, the awkward, ad hoc caucus broke up. One spectator said later she could feel the scales tipping. But Judge John Romei had one more observation to make. He said that the most compelling testimony he had heard was from the undercover warden. He had testified that during the sting, he asked his guide whether he sometimes let his sports keep extra fish, to which the guide’s answer was “No.” The judge noted, “That’s when the dishonest guide says, ‘Oh, we can talk about it...’ The honest guide says, ‘I won’t.’ That’s what this guide said, and I believe him.” The ruling was then handed down that the offense had not been committed.
Early Omens
Eighteen months earlier, an omen reader might have predicted the embarrassing outcome for the State. After all, it had every bit of this information from the start. It was in the undercover officer’s final report. And so was the absence of evidence––no fish, no photos, no video, no audio, no notes. It all flew in the face of the Warden Service’s own policies and protocol, as did the lack of dates, documentation, and reports. And yet, from this footing, the State plunged headlong into a spending spree on the public tab that cost the state of Maine far more than money...
Voluntarily Solicited
The State knew something else too: An Advisory Council member was involved. He had “covered” for five complainants when they would not give written statements, by giving one himself. Despite ongoing interest from the press, how Advisory Council member Lance Wheaton came to be entangled in the case remained the untold story. This was partly because it happened late. It was fully three months after the sting operation itself. The State learned that the defendant was doing the unexpected––pleading innocent and requesting a trial by jury. The State took stock of its case. Not only was there no tangible evidence, there were no written statements––from anyone! Suddenly, Wheaton’s statement appeared.
It was cosigned by District Warden, Brad Richard. Richard would be asked during the second trial why Wheaton’s statement came so late. Richard answered, “because he was reluctant.” He then added, “but after I talked to him awhile, he agreed to it.” The court thus learned that Advisory Council member, Lance Wheaton’s statement was solicited.
It was a powder keg answer that spawned new questions: Had the author of the statement (Wheaton) witnessed any violations himself? No. Were there any written statements from anyone who had? No. Wheaton wrote that five guides had come to him with “complaints,” but he suspected two of the five of having “other interests.” Had due diligence been the order of the day, this should have triggered further investigation. What might have been learned? Were grudges afoot? Had there been any local upheavals in business and clientele in which there were financial winners and losers? The decision was foregone.
System Failure
Though every signpost cried, “caution,” cooler heads did not prevail. And so, from the unstable bedrock of Wheaton’s solicited statement, and a full awareness that the whole case came down to the word of a Maine Game Warden against that of a Registered Maine Guide, the State plowed forward. And then...
It was June 28th, 2005. During cross examination, undercover warden St. Saviour said, “after he (Mr. Spencer) caught the third fish, we then went to...(another location on the lake).” It was a show-stopper when the warden was asked to read his own words aloud at the second trial, toppling the keystone of the State’s whole case, that the guide had allowed the warden to catch and keep “the third fish.”
Then, at the same June trial, subpoenaed Advisory Council member, Lance Wheaton contradicted his own “Voluntary Statement.” He said, under oath, that two of the five complaints had come as anonymous phone calls, adding, “I still don’t know who they were.” Then how did he know they were guides as his statement claimed?
Following the June, 2005 trial, media coverage continued to shine a harsh light on Vacationland. The Wall Street Journal, the Associated Press, Time-Warner, ESPN Outdoors, and more were all following the case. An email and letter-writing blitz to Governor Baldacci asked tough questions about his spendthrift Warden Service, and demanded answers. Even so, the effects of canceled tourism, and a tarnished state image would not be owned at any official level, and neither would system failure from top to bottom.
^TOP^
|
When the State did not prevail in the jury trial, it was another opportunity to take stock and change course. Instead, the State pressed on to the civil case–”failure to report a violation”–after it had just failed to obtain a conviction for any violation.
A Higher Standard
The clarion call sounded by state officials in response to exasperated observers from around the country was, “a higher standard” (applied to Maine guides). When the prosecutor used the term in the civil trial, the judge admonished him saying, “No, everyone is equal under the law.”
Legislative Representative, Tom Watson used it too when he responded to a plea from a frequent Maine visitor to stop the madness. “What you seem to ignore,” Watson wrote, “... is the fact that Registered Maine Guides are held to a very high standard in our State.”
And from the same letter, “I write this before any legal result is known of the pending civil action, as that legal result is secondary in importance to the diligence of our Warden Service in investigating and prosecuting offenders of our fish and game laws––be they big-time game poachers or Registered Maine Guides with well-heeled clients from away.”
It was troubling to learn that a state lawmaker deemed the legal system secondary to the diligence of the Warden Service. Implied too, is a presumption of guilt before proven innocent, and a disdain for those who bring their money to Maine, hire guides, and support local economies that depend on it. Tom Watson is House Chair of the Joint Standing Committee on Inland Fisheries and Wildlife.
A Greater Good
Many have asked how things devolved to this level, and could they get any worse? The more constructive question is whether they can get better. We need this system to work. What can be done, positively, to that end?
Ironically, most guides do hold themselves to a higher standard even though this is not a legal term. We should all endeavor to do so. At the same time, using this case as a template, could the same standard can be applied to our Warden Service? Could it be applied to Advisory Council member, Lance Wheaton? Had the kind of “diligence” and thorough investigation Tom Watson alluded to in his letter actually taken place, a lot of people would’ve been spared a lot of time, money, and anguish, not to mention the other tolls taken. Isn’t it time now for those in positions of public trust to be held to the same “higher standard” they wish to apply to Maine guides?
Finally, the Maine Professional Guides Association (MPGA) might consider a mechanism by which members are protected from overzealous prosecution. A legal defense fund and a review panel could assure a defendant a good lawyer and a fighting chance. Members and even clients will contribute to such a fund which would also serve notice that frivolous cases will be fought, and can be won. MPGA president, David Tobey says he will begin the process under new business at the next MPGA meeting.
Why bother? Once again, because we need the system to work, not fail. It is for the greater good of guides, sportsmen, the Warden Service and the state.
...Randy Spencer was the target of an undercover “sting” operation by the Maine Warden Service in July, 2004. They had received verbal complaints from individuals whose identities have never been revealed. As a result of the sting, Randy was summonsed for “knowingly assists a client in a violation,” and the companion civil charge, “failure to report a violation.” It was based on an 11-inch bass the undercover agent claimed he had been allowed to keep over the limit of two. Randy, who was also fishing that day, swore he caught the third fish, not the warden. Either offense could cost Randy the loss or suspension of his guide’s license, and therefore his livelihood. The first charge was tried before a Jury on June 28th and 29th, 2005 and ended in a hung jury and dismissal of the charge. The second, civil trial was held January 12th of this year, ending in Randy’s full acquittal.
|
