Culverwell defense speaks after case
Convictions not for elk shot in property defense
September 8, 2008
Pamela Mackey saw a measure of victory in her client’s mixed verdict late Friday night.
Since Aug. 25, Mackey has represented local rancher Rodney Culverwell, 41, in Moffat County District Court against 80 poaching-related charges, including 16 class 5 felonies and 64 misdemeanors.
A seven-man, seven-woman jury of Moffat County residents convicted Culverwell on 16 charges Friday, after deliberating for nine hours about the two weeks worth of evidence presented at trial.
Culverwell was convicted of four counts each of the following charges: willfull destruction of big game, a class 5 felony; illegal possession of wildlife, a misdemeanor; hunting without a license, a misdemeanor; and hunting out of season, a misdemeanor.
He was acquitted of all 16 waste of edible game meat charges.
All convictions were related to the deaths of four specific elk found on Culverwell’s ranch this winter by the Colorado Division of Wildlife.
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None of the convictions, however, were related to any elk Culverwell testified he shot in defense of his property, Mackey said. Defense of property was a key argument used by Mackey, which often called into question the effectiveness of DOW programs designed to help ranchers and other landowners.
“I think that what was really affirming for Rodney and his family was that all the elk Rodney testified he killed in defense of himself and defense of property, he was acquitted on,” Mackey said. “The jury rejected the notion that a rancher that tries to protect his livelihood should be labeled a criminal.
“The reason Rodney went to trial was to defend those constitutional principles.”
Of the four elk Culverwell was convicted of illegally taking, two were found inside his hay stackyards.
Culverwell denied shooting one of those but said he dragged the body to a fence line and piled it on top of two other elk he shot because the elk was in the way of his tractor.
The other one was a calf Culverwell said he shot accidentally while aiming for an elk that had torn out a fence corner. The prosecution stated during closing that Culverwell’s testimony of shooting the calf twice – once by accident and once to put it out of its misery – didn’t match physical evidence of three bullet wounds from two different guns.
Culverwell was convicted of killing two more elk that weren’t found inside hay pens. One was a calf Culverwell testified he shot because it appeared sick and wouldn’t leave the area around a cabin and tractor that his family often walked through. Culverwell said he shot the animal to stop its suffering and prevent it from attacking anybody.
“What I think happened (in that specific case) was the jury did not think the statute made room for a mercy killing,” Mackey said. She added, in her opinion, the laws Culverwell was charged with breaking were written to regulate hunters and prevent “thrill-killing,” and so the statutes did not apply to her client in this case.
The final elk Culverwell was convicted of killing illegally was one he ran over with a tractor. Culverwell testified he had no choice when the animal charged his farm vehicle in a seeming fit of fear and desperation.
In response to that testimony, Jeremy Snow, deputy district attorney for the 14th Judicial District, played an excerpt of Culverwell’s conversation with DOW Criminal Investigator Eric Schaller on the day his agency searched the Culverwell’s ranch.
Culverwell aksed in the excerpt how long he was supposed to wait for the animal to get out of his way and that the elk had more to worry about from his tractor.
Mackey said if the District Attorney’s Office had played the whole exchange, the jury would have heard how Culverwell described the starving body condition of the animal and how he never wanted to hurt it.
Mackey said she didn’t know how the jury made the four convictions relating to that elk.
Culverwell was acquitted of all charges relating to 12 other elk in the case, nine of which were found on his ranch and three others across U.S. Highway 40.
Three of the elk without convictions found on Culverwell’s ranch were shown to be stuck in hay pen fences. No ballistics evidence linked Culverwell to any of the other elk found on his ranch or across the highway.
Mackey said the DOW’s investigation of Culverwell and his wife, Margaret, disturbed her.
There was no physical evidence that linked Culverwell to eight of the 16 elk in the case, she said, but the DOW and the District Attorney’s Office still charged her client and testified as though he were guilty beyond doubt.
As an “outside,” Mackey said she was “shocked” by the level of hostility between ranchers and the DOW.
“It’s just awful,” she said. “The animosity between the ranchers and the DOW is amazing. I have tried a lot of high-profile cases, and I have never seen a courthouse that full for two weeks.
“People’s lives and their ranching plans and their livelihoods are being threatened by the DOW’s policies in herd management.”
Mackey added that Culverwell’s case and the stories she heard while investigating it show an “abuse of government power, and I’m outraged by it.”
She singled out testimony from Schaller, the DOW investigator who interviewed her client the day his ranch was searched. She was bothered Schaller introduced himself as a DOW officer who wanted to reach out to ranchers, but he didn’t mentioned the hidden tape recorder and search warrant in his pocket.
“I found Schaller’s conduct and testimony really, really disturbing,” Mackey said.
The next step
The Culverwells have not decided whether to appeal the convictions, Mackey said. Right now, they have to answer some tough questions for themselves.
If Rodney is convicted of a felony, he could no longer possess or own a firearm, which will threaten his ability to be a rancher.
“The ramifications of this conviction are enormous, and it makes me very sad,” Mackey said.
Each conviction of willful destruction of big game carries a possible sentence of one to three years in prison, a fine between $1,000 and $100,000 and a mandatory two-year parole. A conviction also guarantees 20 hunting license suspension points, and the Colorado Wildlife Commission may suspend hunting privileges for one year to life for each count.
Because Culverwell was convicted of three or more counts of illegal possession of wildlife, each of his four convictions could result in a possible sentence of up to one year in county jail, a fine between $1,000 and $10,000 and 15 hunting license suspension points. The Wildlife Commission also may suspend hunting privileges for one year to life.
Each count of hunting without a license and hunting out of season carry penalties of 15 hunting license suspension points and a fine equal to two times the amount of the most expensive hunting license for the species taken.
Collin Smith can be reached at 875-1794 or firstname.lastname@example.org