Wednesday, July 8, 2009

Did the ADA or the Judge Make the Wrong Call?

There's an updated story about the deer-killing thugs of Waupaca County on the local paper, WaupacaNOW. The judge gave the ADA a chance to choose between dropping either the illegal hunting charges, which are misdemeanors, or the animal cruelty charges, which are felonies.

From the article:

Kirk then ordered Fassbender to dismiss either the hunting violations or the felony cruelty to animals charges filed against Kuenzi. He said if Fassbender did not choose which direction to take the prosecution of this case, the judge would dismiss the felony charges against Kuenzi.

In a letter to Kirk Monday, June 29, Fassbender said the prosecution would not dismiss any of the charges and it has the authority under state law to bring multiple charges against a defendant.

“Please take whatever action you deem appropriate with regard to the defendant’s motion to dismiss,” Fassbender said in his letter to the court.

A few hours later, Kirk dismissed the felony charges against Rory Kuenzi.

I'm not a lawyer, nor do I play one on the Intertubes, so I don't know if the ADA did the right thing by sticking to the multiple charges, or if he should have dropped the hunting charges and gone for the felonies.

But I do like the ADA's argument on why he didn't back off on any of the charges (emphasis mine):
Assistant District Attorney James Fassbender argued that the law recognizes certain customs as legitimate hunting activities, which do not include chasing the deer with snowmobiles.
He must read Cog Dis and Illusory Tenant.


  1. "the law recognizes certain customs as legitimate hunting activities, which do not include chasing the deer with snowmobiles"
    Then if this is the case, why did they charge them with hunting. Sounds like the problem is with the ADA.

  2. It was the DNR that originally charged him with the hunting violations.

  3. I understand that, but isn't the district attorney's office make the charging decisions?

  4. Ayup, hence my question, did he screw up the charges or did the judge rule incorrectly.

  5. Good on Fassbender. Stick to it, brother. Dan, on that day, the defendants were both hunting and not hunting. It's doesn't have to be an either/or proposition.

  6. And capper, to answer your question: With all respect to Judge Kirk, it seems to me he's cruising straight into the court of appeals for a reversal. In fact, I'd bet money on it.

  7. iT-

    If you are right, we will get together and have that pint or three.

  8. IT, I hope you are right. But where do you draw the line between hunting and cruelty?
    As neither a hunter, owner of guns and think these thugs should spend time in prison, I still think the judge will be upheld.

  9. "Where do you draw the line between hunting and cruelty?"

    Somewhere between tracking a deer and delivering a clean, instantly lethal shot and tying it by the neck to a tree and leaving it to strangle itself to death.

  10. By the way, the felony charges against Robby Kuenzi were also dismissed on Monday by another judge.

    The third defendant, Hermes, still faces the felony charges. He has a hearing set for July 22 on his motion to dismiss (in front of yet another different judge).