Thursday, January 31, 2013

House Speaker Wants Hoosiers Who Helped Deer Pardoned; Will Governor Pence Take Golden Opportunity to Hit Easy Political Home Run?

Norman Cox of WRTV is reporting that House Speaker Brian Bosma wants the rescuers of Dani the Deer to be pardoned.  Before getting to Cox's story though, an Indianapolis Star article reprinted by USA Today provides us some background:
Dani the Deer

The case of Dani the deer and the couple who saved her — only to be prosecuted for breaking a law about keeping wild animals — has reached the governor.

The only question is what will Gov. Mike Pence, barely two weeks in office, do with an issue that is small compared to mass transit and tax cuts but seems to spark much more emotional resonance with a broad swath of the public since The Indianapolis Star report Monday.
Pence, a Republican seen as a champion of limited government, said at a news conference Wednesday that the state Department of Natural Resources seems to have "acted appropriately" in charging Jennifer and Jeff Counceller of Connersville, Ind., with a crime.
Speaker Brian Bosma
The charge — illegal possession of a white-tailed deer — is a a misdemeanor, but punished to the fullest it could cost the Councellers up to 60 days in jail and a $500 fine.
After nursing the wounded fawn back to health, the Councellers kept the deer penned up for nearly two years on their property about 55 miles east of Indianapolis with the idea they would release it into the wild once it was big enough to have a chance on its own.
Their plans were thwarted when a state conservation officer discovered the deer, sought to have it killed and then — after it mysteriously disappeared — filed a report that led to the misdemeanor criminal charges against the Councellers.
Cox's story updates us that Indiana Speaker of the House Brian Bosma is calling on Governor Mike Pence to pardon the Councellers.
INDIANAPOLIS - Indiana House Speaker Brian Bosma wants the governor to pardon a couple who face criminal charges after nursing an injured baby deer back to health. 
Bosma told reporters Thursday that Gov. Mike Pence should intervene in the case of Connersville police officer Jeff Counceller and his wife, Jennifer, who were charged this month with illegal possession of a white-tailed deer, a misdemeanor that carries up to 60 days in jail and a $500 fine. 
"Laws are imperfect and people are imperfect, so occasionally, a commutation of sentence or a pardon might be in order," Bosma said. "It seems to me that (the decision to prosecute) may not be the right direction."
I completely agree with Speaker Bosma.  The decision to prosecute the Councellers for an act of kindness is an exceedingly poor one  Prosecutors are given discretion exactly for reasons such as this.  I would also point out that there isn't a chance in a million that a prosecutor could get a conviction on these charges in front of a jury.  That should have led to the obvious decision to not pursue the charges.

I would also point out that when you beyond the federal and state heads of environmental agencies, their are cadres of career bureaucrats who are far left environmental extremists who are are not beyond abusing their considerable administrative powers to bully people.  I have previously written what my elderly uncle went through when federal and state agencies targeted him for moving a pile of dirt in a creek. Below is the story I wrote nearly two years ago on that issue, which I reprint below in its entirety. The DNR along with the Army Corp. of Engineers and other environmental agencies was also involved in that persecution:
My uncle, Paul Buchanan, is 83 years old and lives in Madison, Indiana. He owns a farm that is a few miles north of Madison, between China, Indiana and Manville
Paul is a heavy equipment operator, including a bulldozer that he uses occasionally.
 A creek named Dry Fork runs through my uncle's farm. True to its name, Dry Fork is completely dry, filling up only when it rains. As can be seen in these photos, the creek is extremely wide.
Late last spring, my uncle was concerned about the condition of the creek. A rock bed in the middle of the creek had been built up, forcing any water in the creek after a storm to the outside. The resulting erosion cut under part of his farm, leaving it to eventually collapse into the creek. On the other side, the water was beginning to erode the ground underneath the county road, which would eventually collapse. 
My uncle used his bulldozer to place three scoops of creek rocks against the eroding bank in an attempt to shore up the bank. Someone from the Army Corps of Engineers happened to be driving by while Paul was doing the work. Paul was cited for an environmental violation. 
The Army Corps of Engineers and a couple state agencies demanded he restore the creek to the way it was. Paul readily agreed to do that. However, before he could get back to the property, a 100 year storm hit, and the resulting tide of the water washed away the rocks he had pushed against the bank. The creek was back exactly the way it was before.
One would think that would be the end of that and for the state agencies it was. But for the feds, and specifically the Army Corps of Engineers, the Act of God in wiping away my uncle's work wasn't good enough. The agency issued a report claiming that my uncle had interfered in the "spawning of fish" in the creek, a patently absurd statement. Dry Fork is a dry creek with just puddles of water most of the time. The only "fish" in those puddles are tiny minnows. 
The Army Corp also alleged that Paul interfered with "vegetation" in the area, and demanded he engage in an extensive program to plant good vegetation while destroying bad vegetation growing in the area. My uncle didn't interfere with any vegetation in the area. By the way, the "vegetation" they are talking about is nothing more than what most people would call weeds. 
The Army Corps of Engineers demanded that the creek be "remediated" - that the creek be restored like it was before my uncle did the work. Pursuant to the Corps' demands, my uncle hired an environmentalist and engineers to put together studies and plans. The Corps continued to come up with new demands, including that my uncle hire a pilot to fly over the area to take pictures. They insisted he change the deed to his property to include a restriction that neither he nor anyone who owns the property after him could ever work in the creek again, even if they obtain the proper permit to do so. As a real estate attorney, I told him the deed restriction would lessen the value of the property when resold and not to agree to it. I was stunned at the chutzpah of these federal bureaucrats who would actually try to coerce a elderly property owner into putting a restriction on his deed. 
My uncle did the best he could to make the feds happy. He, as he was told to do, hired an environmentalist and engineers. He had a study done and put together a remedial plan for the area, even though, of course, there was nothing to remediate. My uncle, in just about 8 months, spent $25,000 trying to placate the Army Corps of Engineers. No matter what he did though the agency continued to move the target just out of his reach. 
A representative of the Corps had vowed from the beginning to "make an example" of my uncle for working in the creek. True to his word, he constantly badgered my elderly uncle with demands and threats. To give you an example, my uncle had an expensive remediation report prepared and emailed it to the representative. The representative replied within 5 minutes demanding that my uncle make changes to the report by 8 am the next day or face severe financial consequences.
Because of these threats, my uncle has had trouble sleeping at night and eating. He's lost weight because of the worry. He and his wife were terrified they are going to lose their farm. 
I write in the past tense, but the case is still going on. I took over representing my uncle and the case has been moved to the EPA. Initially, the EPA started out with more Army Corps-type threats of fines against my uncle saying that unless he remediated the creek for the work he did, the agency would sock him with tens of thousands of dollars of fines per day. Hopefully now cooler heads are prevailing. I've asked them to take a closer look at this case and they would find out that there is nothing to remediate
We have also asked for help from Paul's elected officials in southern Indiana. The State legislators were very responsive though they were limited in what they could do since the state agencies had long ago been satisfied and it was the feds still pushing the demands and making the threats. Congressman Baron Hill, whose district, includes the area, expressed an interest in finding out what is going on. Senator Evan Bayh's office also has written the EPA asking them for information about the case. 
The response from Sen. Richard Lugar's office, however, has been beyond worthless. A representative for the Senator claimed he couldn't get involved, told me that Paul was at fault, and that he should hire attorneys, environmentalists and engineers to prepare reports and plans. Sen. Lugar's representative had obviously not even bothered to look at the material that I sent him which showed my uncle had already done exactly that spending $25,000 to no avail. If this is the level of constituent service Senator Lugar is going to provide, hopefully he won't consider running again. 
I am deeply concerned at the strain that the federal government's continued threats against my 83 year old uncle will have on his health. He has never been in trouble a day in his life and now he is facing federal bureaucrats who are threatening to take away his farm and everything he has worked for. These folks who are abusing their power to "make an example" of my uncle should be ashamed of bullying an elderly man who they know who does not have the ability or the financial resources to fight back. They are nothing but thugs, pure and simple. 
Note: The reproduction of the photo for some reason enhanced any green in the pictures. The plants are not nearly as "lush" as the green in the photos indicate. 
Fortunately for my uncle, the environmental wackos targeting him finally dropped their persecution of him when, I, as his attorney, stood up to the bullies and said we wouldn't do anything else they were demanding.  We also had considerable help from former Rep. Dave Cheatham who took an interest in the case and the unfair treatment of my uncle.

Speaker Bosma is right to call for a pardon.  But this case should never have been filed in the first place. The DNR agent obviously filed the complaint with the prosecutor only after he got angry at the Councellers who he believes left the gate open rather than let him euthanize the animal.

Finally a note about legal procedure. News reports have indicated that the DNR agent could withdraw the complaint and the criminal charges would have to be dropped.  I don't think that's the case.  County prosecutors in Indiana have absolute discretion to pursue criminal charges.  Even without the DNR complaint, the special prosecutor could prosecute the Councellers.  The Governor cannot order the prosecutor not to prosecute. But Governor Pence could pardon the Councellers which would stop the prosecution.  Also the General Assembly could actually change the law the Councellers are being charged with violating and apply it retroactively to wipe out the legal basis for the prosecution.  (Ex post facto laws are allowed if they work for the benefit of the prosecutor.)  A more long shot method A much more questionable method might be for the General Assembly to pass a private bill that effectively clears the Councellers of criminal conduct.

In an Indianapolis Star article, political analyst Andrew Downs indicates that Governor Pence is in a no win situation because of the issue:
But to Andy Downs, director of the Mike Downs Center for Indiana Politics, the governor is in a no-win situation. 
“These are nightmare circumstances. There really is no right answer,” Downs said.

“You are either telling your employees to selectively enforce the laws and not do what they are paid to do, . . . or you are saying to people, ‘This wonderful thing you did, it violates the law, so we have to punish you for it.’ ”
I couldn't agree less with Downs. First of all, enforcement of the law doesn't mean one has to divest oneself of common sense.  An overzealous DNR agent filed a complaint out of anger. The prosecutor, who the law gives discretion to, should have had the good sense to throw the DNR complaint in the trash can rather than pursue criminal charges.

Most importantly though, contrary to Downs' suggestion, this issue is an easy home run for Governor Pence if handled the right way.  He has the chance to stand up for two Hoosiers who tried to show compassion toward a deer who apparently had been mauled by a coyote.  Then you have big, bad and powerful government officials trying to get the couple prosecuted for an act of kindness. Pence has been handed a golden opportunity in his first act to stand up for Hoosier common sense and against an overzealous state bureaucracy.  If he comes to the Councellers rescue by taking forceful action, he will be the darling of the news shows and gain national attention.  Governor Pence could not have a better way to introduce himself as Indiana's new Governor.


Pete Boggs said...

This inappropriate contact is "policy" of molestation.

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