Charges will be dropped against Kuenzi

WAUPACA - There was plenty of anticipation for those who filled this Waupaca County courtroom.

"I'm a little nervous," said Virginia Niemuth, who owns the Waupaca County land where five deer were run over and killed by snowmobilers.

Niemuth and others were waiting to see if felony cruelty to animal charges would be dropped against one of the suspects, Rory Kuenzi.

Kuenzi's attorney made the same argument, to a different judge as the attorney for his client's brother, Robby Kuenzi. He claimed the men were hunting, admittedly out of season, but therefore it could not be considered cruel.

"To say on the one hand it was hunting but on the other hand inappropriate hunting seems counter intuitive to me to me," said Rory Kuenzi's attorney Troy Nielsen. "So you can't have it both ways."

"The state's assertion is that you can still be charged with a hunting violation and be charged with cruelty if you step so far out of the realm of reasonable hunting practices," said Waupaca County Assistant District Attorney, Jim Fassbender.

Some of deer were gutted by the treads of the snowmobiles, but the criminal complaint states the Kuenzis said they were going to keep others for meat.

Judge Philip Kirk says the state made a mistake in filing too many charges that contradicted each other.

"Prosecutorial over-charging is the swine flu of the criminal justice system in this state," said Judge Kirk.

Kirk gave the District Attorney's office until Monday to either drop the felony cruelty charges, or the lesser hunting charges.

Kirk says even if the state pursues felony cruelty charges, hunting may be an issue in the case. If the case were to go to trial, a jury would have to decide beyond a reasonable doubt that Rory Kuenzi was not hunting. Assistant D.A. Fassbender declined comment on what he plans to do.

The third man charged in the case, the Kuenzi's friend Nicholas Hermes, is scheduled to be back in court in about a month. His attorney has said he plans to make a similar argument about his client hunting.