He's off the hook in fish trial in Ohio

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He's off the hook in fish trial

By RICHARD PAYERCHIN, Morning Journal Bureau Chief August 31, 2001

SANDUSKY , Ohio -- A jury bought his fish story and let him off the hook.
Commercial fisherman Joseph A. Smith was cleared yesterday of a misdemeanor charge alleging that he had more than the allowable limit of undersized white bass in his catch last November.

At his trial, Smith argued that the fish shrank after they were taken from Lake Erie, and he contested the measuring methods used by state wildlife officials.

Smith, 32, of 5003 Venice Road, Sandusky, operator of Smith Fisheries in Sandusky, was charged after state Division of Wildlife officers inspected and measured his Nov. 15, 2000, catch, according to Sandusky Municipal Court records.

The wildlife officers said some of the white bass were under the required 11-inch length and the 154-pound weight of the undersized fish exceeded the 10 percent allowed in the total weight of a catch.

Outside the court yesterday, Smith said he is relieved by the verdict and not surprised by the jury's decision.

''But I was not optimistic going in there,'' he added.

''I'm just happy,'' Smith said. ''It's been a long, stressful ordeal.''

Jurors deliberated about 90 minutes. As Sandusky Municipal Judge Erich J. O'Brien read the verdict, Smith sat still, then shook hands with his attorney, William Smith, of Sandusky.

Stanley Fischer, Lake Erie law coordinator for the Division of Wildlife, said that after he and Wildlife Investigator Gary Manley measured Smith's catch, the undersized fish made up 20.6 percent of the 747 pounds of fish.

Smith argued the lower jaw of the white bass extends past the nose of the fish and all fish shrink by about 1.5 percent when they are taken from the water and put on ice. The wildlife officers measured Joseph Smith's catch in a storage locker at the former Demore's Fish Cleaning in Sandusky.

''Measuring a fish fresh out of the water, flopping around, is so much different from measuring a dead fish,'' Joseph Smith said.

His attorney said the court decision may lead to changes in how the state wildlife officials do their work. Previous cases have dealt with catches of perch that were ''substantially shorter'' than the legal limits, and courts have not dealt with shrinkage in measuring fish, William Smith said.

''I think it will push (the Ohio Department of Natural Resources) to the point where they have to sit back and look at some of their techniques,'' he said.

Prosecutor Lynne Gast King said she was surprised by the verdict because the legal definition of measuring a fish is clear.

Joseph Smith's videotape of the wildlife officers measuring his catch also was ''overwhelming,'' King said. In her closing argument she said the tape showed Joseph Smith measuring 17 fish deemed undersized by the wildlife officers and contesting only two of those.

''The tape, itself, I thought was overwhelming,'' King said. ''I don't know what else we can do to make a case against a commercial fisherman.''

As for the 747 pounds of fish frozen at the Ohio Department of Natural Resources office in Sandusky, they won't be the ones that got away for Smith.

He said he would make arrangements to get the fish back from ODNR, but added that he probably won't be able to sell them because they have been frozen and thawed several times, which can hurt the quality of the fish. He's going to see whether they are still edible to possibly donate to a church group
 
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