Charter skipper David Gudgell might face retrial for 2017 halibut high-grading charges even though he has already served out the original penalties ordered by South Pacific County District Court Judge Nancy MacAllister.

ILWACO — The Washington Appeals Courts Division II has denied a request from the Pacific County Prosecutor’s Office to reinstate the 2019 convictions of charter boat skippers David and Robert Gudgell. However, one of the men faces the possibility of a new trial.

In March 2020, Pacific County Superior Court threw out the convictions, which were reached in South Pacific District Court.

The two were convicted of high-grading while conducting halibut charters on their respective boats the Westwind and Katie Marie during a 2017 season by allegedly fishing over the limit and tossing dead smaller fish overboard before returning to port.

Pacific Salmon Charters, which also included fishing boats Pacific Dream, Sarah Kay and MarB II, booked passengers for fishing trips when the alleged illegal activity took place on the Westwind and Katie Marie.

Eighteen counts of unlawful recreational fishing

During their 2019 district court trial, a jury found David guilty of 10 counts of second-degree unlawful recreational fishing and one count of wasting. Robert was found guilty of eight counts of second-degree unlawful recreational fishing.

David served 27 and a half days in jail and completed 220 hours of community service. He was fined $13,000. Robert served 20 days in jail and completed 160 hours of community service. He was fined $8,000. The brothers may now be able to recoup some of what they paid in fines.

According to court records and the appeal, key trial witnesses including Timothy Barry, who fished on Westwind, and a Washington State Department of Fish and Wildlife officer who took an undercover charter trip on the Pacific Dream.

“Barry had reported: that an over-limit of seven halibut was discarded from the boat, and at least three of those fish were already dead,” the Washington Appellate letter issued on Nov. 23 said regarding the initial investigation.

In total, 13 passengers from the boats testified during the trial, along with one of David’s former deckhands. The initial investigation concluded that high-grading was likely a standard practice on some Pacific Salmon Charters boats.

However, the appeals court determined the evidence did not substantiate that claim, according to the appeal letter dated Nov. 23.

Reversal

While both the Westwind and Pacific Dream were observed high-grading, the appeals court determined that there wasn’t sufficient evidence to suggest additional boats were conducting the illegal activity as well, including the Katie Marie under Robert’s control.

“The obvious purpose of high-grading is to ensure customers go home with the largest fish. It is a reasonable inference that this is the goal on all halibut trips on those two boats, and it is similarly reasonable to infer that it is a standard practice on those two boats,” the appeals letter stated.

“However, in regard to Robert Gudgell’s boat, the Katie Marie, there are no facts or circumstances — apart from the officer’s belief that high-grading is a common practice on all boats associated with PSC — to support an inference that the records are evidence of a crime. This bare belief is simply not enough,” the letter added.

Court upholds dismissal

The 20-page appeals court ruling concluded with Judges Bernard F. Veljacic, Rebecca Glasgow and Anne Cruser upholding the Superior Court’s decision to toss the original convictions.

“We also conclude that, although the warrant was overbroad as written, the warrant was severable.” In other words, although the warrant was flawed, some of the evidence gathered under it can still be used in court. “Accordingly, we affirm the superior court’s decision reversing Robert Gudgell’s conviction, which dismissed his charge for unlawful recreational fishing in the second degree,” the appeals judges determined.

“We further conclude that the superior court did not err in reversing David Gudgell’s conviction for unlawful recreational fishing in the second degree based on instructional error [to the jury by the district court judge]. Accordingly, we affirm the superior court’s reversal of the David Gudgell’s conviction, but remand for a new trial,” they added.

It will be up to the new Pacific County prosecutor whether to continue pursuing the case with a new trial for David, or a possible appeal to the state’s top-tier Supreme Court.