D  e  s  e  r  t     E  x  p  o  s  u  r  e     June 2005

The Quality of Mercy

When he put a trapped coatimundi out of its misery, James Oden became an unwitting criminal. Now, demanding to make his case before a jury, he's putting trapping on trial.

By David A. Fryxell

James Oden never set out to become, as he puts it, the "poster boy" of the movement to ban trapping in New Mexico. The 41-year-old former Colorado firefighter came here to recover from a nervous breakdown, to hike the wilderness and shed the tragedies that had overwhelmed him, in the starry swirl of southwest New Mexico's famously dark skies.

Yet here he sits, at a folding table on the corner across from the Silver City Food Co-Op, on a brilliant blue and blustery spring day. Before the incident that put him in the headlines, Oden surely would have spent a day like this out hiking. But he doesn't feel safe in the wilderness any more. "I feel naked out there now," he says. "I've been stripped. I don't even want to go out to the beautiful land that I love."

So instead he sits behind a crudely hand-lettered sign—"Stop Trapping on Public Land"—that's duct-taped to the table, gathering signatures on an anti-trapping petition. The roll of tape and a rusty leghold trap, borrowed from anti-trapping activist Jene Moseley, weight down the petition pages against the breeze. It's mid-afternoon, and Oden is closing in on 200 signatures.

At its legalistic core, the Jan. 19 incident that turned James Oden into both an activist and an accused criminal couldn't be much simpler. As Martin Frentzel, a spokesman for the New Mexico Department of Game and Fish, puts it, "This is pretty cut and dried. He killed a trapped coatimundi, which is a protected fur-bearer; there's no season on coatimundi. If you find an injured animal—not just from trapping, but also an animal hit by a vehicle, technically you are not authorized to dispatch or kill that animal."

James Oden gathers signatures on a petition to ban trapping on public lands.

Oden doesn't deny killing the coatimundi he stumbled upon, though he had no idea what the writhing animal was at the time. Killing a protected animal is a misdemeanor, punishable by a $500 fine, six months in jail or both. He could also be charged under a 1978 state law that prohibits "intentionally affecting the condition or altering the placement of personal property used for the purpose of killing or taking a game animal, bird or fish," a petty misdemeanor, but game officials have not yet cited him for interfering with traps.

Ordinarily, such an offender would quietly plead guilty and pay his fine. But Oden has vowed not to pay a single cent and has demanded a jury trial.

"I will fight this tooth and nail. The damage has been done to me already. At least maybe I can help prevent another animal or person from getting trapped," Oden says. He's shorter and stockier than the fictional firefighters you see on TV, with a mat of curly dark hair and eager, puppy-dog eyes. Sometimes as he talks, the passions well up inside until tears come, or he jumps up and down like a yo-yo. James Oden wears his heart on his sleeve—a risky thing in a world prickly with traps.

A pretrial hearing in his case has been set in Silver City Magistrate Court at 1:30 p.m. on June 3. Oden's attorneys expect his trial to begin in late July or early August. His case, which first came to public attention when a friend, Phil Ratzlaff, wrote to Desert Exposure (Letters, March 2005), has already garnered a sympathetic editorial in the Albuquerque Journal. Now the prospect of a headline-making jury trial, in which animal-rights attorneys will try to put the ethics of trapping on trial, promises a public-relations nightmare for the state's trappers and game officials.

Those officials seem befuddled, though, about the media frenzy Oden's case could excite. "Ordinarily these cases don't make the newspapers," grumbles Frentzel. "It's [Oden's] response to the situation that's causing this."

Jeff Lehmer of Pinos Altos, until recently the president of the New Mexico Trappers Association, states flatly, "He was trespassing on these guys' traps. What he did was against the law. I don't care how much compassion he had."

That argument is unlikely to appeal to ordinary citizens, however, who may be stunned to learn that it's against the law to put any regulated injured animal out of its misery—whether a coatimundi caught in a trap or a deer hit by your car. "Anyone unlucky enough to encounter a wounded animal that is suffering would likely react as Oden did," wrote the Albuquerque Journal. "That merciful motivation should be weighed in this 'illegal hunting' case. . . . As the law stands now, it's not just coatimundis finding themselves in a trap."

Voters previously unmoved by concerns over dogs and hikers being caught in leghold traps (see Desert Exposure's in-depth report on the pros and cons of trapping, "Catching Hell," Sept. 2004) may be more powerfully affected by the horrors of trapping that Oden's attorneys will try to present. In the spotlight of a jury trial, New Mexico's trapping regulations and enforcement may be exposed as both loophole-riddled and lackadaisical, serving trappers but not the outdoor-loving general public or the animals the rules are supposed to manage.

Before it's all over, Oden may not be the only one who wishes he'd kept right on walking that January day.

James Oden is all too familiar with pain. As a firefighter in northern Colorado, he lost a couple of friends in a fire, then watched his firefighting partner slowly succumb to cancer. After 9/11, that all added up to a nervous breakdown.

He shed everything he owned, got a little trailer and spent the next three years seeing America—starting with Catron County, which he noted, "Must come back and see." When his cross-country odyssey ended in Florida, the scenery and night skies—he's an astronomy buff—of Southwest New Mexico drew him back here. He spent eight months in Silver City last year, a few awful months in California, then moved to Glenwood in October. He picked the little Catron County town in part because of the nearby lightless region—"a big black sucker hole"—he'd seen on satellite images.

After a few months of exploration in person, Oden discovered some other
favorite spots, such as the southern Burro Mountains, especially the area
near C-Bar Ranch Road and Hwy. 90, southwest of Silver City. He'd hiked there with a friend on Jan. 16 and been struck by the beauty of the place. So, three days later, he returned alone.

"I wanted to go out there and have solitude," he says, "to meditate and talk to God. When you go through what I'd been through in the fire department, you have to talk to God."

He reached the trailhead in his red Ford pickup about 11:30 a.m. and set off hiking. Hardly the outdoor novice that trapping defenders have painted him, Oden says he's hiked thousands of miles—but he'd never come across a trap before. "My first experience, I'm sorry to say, was not a good one."

Unfamiliarity with traps is not as surprising as it may seem to long-time New Mexicans. Colorado, where Oden had lived, voted to ban leghold traps in 1996. Other states that have enacted some sort of trapping ban include Florida, Rhode Island, New Jersey, Massachusetts, California, Washington and Arizona. Most anti-trapping measures have been enacted by ballot initiatives, such as Arizona's Proposition 201, which banned leghold, instant kill and snare traps on public lands—80 percent of the state—except for rodent control, human health and safety and wildlife research and relocation. Proposition 201 passed in 1994 with 58 percent of the vote. New Mexico doesn't have the initiative, a legacy of the Progressive reform movement of the early 20th century, so trapping reform here is up to the legislature and the game commission. In response to concerns about pets being caught in traps, the commission held several emotionally charged hearings on trapping last fall, but ultimately left the state's patchwork of trapping rules largely unchanged.

Those rules prohibit setting traps within 25 yards of a trail—though not just any path used by hikers, only a "US Forest Service or Bureau of Land Management system trail designated by the agency on a map provided for the general public." Traps are also prohibited within a quarter-mile of an occupied dwelling (unless set or okayed by the landowner), public campground, roadside rest area, picnic area or boat launching area. They can't be set within 25 yards of the shoulder of a graded public road or within 50 yards of a man-made animal watering facility.

Game and fish officer Rey A. Sanchez would ultimately report that the first trap Oden came upon on Jan. 19 was legally set, 56 yards from Forest Service Road 837. But that measurement was made five days after the incident. Oden and Mike Byorick, who lives in White Signal and was the initial attorney to represent him, believe it could have been moved. Oden remembers the trap being more like 15 yards off the trail.

"Are you kidding?" is Colleen Britton's response to the suggestion that the trap had been moved. She and her husband Larry, who live in Williamstown, NY, had set the traps that Oden would discover. "He's really saying that? We placed that trap legally."

After Oden had been hiking about 45 minutes, he decided to use his GPS device to make his own way back to the truck. Now, Oden can't afford to buy a GPS—he sometimes relies on gifts of food from friends to make it through the month—but he'd found this gizmo on a hike and the Forest Service had said he could keep it.

"That way I don't have to stay on trails. I can let my mind wander," he says. "So, 40 or 50 feet into my own little world, I thought I heard something come out of the brush. I thought it was a javelina. Then I heard thrashing and whimpering and realized something was caught."

He worked up the nerve to get closer. When the creature saw him, it started to scream and "jump like a frog," Oden says, hopping up out of his chair to demonstrate. He realized it was caught in a trap, but thought it had yanked the trap loose and scrambled off where the trappers wouldn't find it. "I'm not an animal activist," he insists. "I figured trappers must be looking for this poor animal.

"I had no idea what it was, what a coatimundi was. I wasn't educated to know every animal out there."

The white-nosed coati (Nasua narica) is the only one of four species of what laymen call coatimundi to range as far north as New Mexico, Arizona and Texas. In New Mexico, according to Jason Roback, who's studied coatimundi under a contract with the Department of Game and Fish, they live in mountainous areas of Grant, Catron, Hidalgo and Luna counties. Related to the raccoon and the ringtail, coatimundi weigh 8-16 pounds and are distinguished by their white muzzle, long, upturned nose, foreclaws designed for digging, and long, ringed tail. Unlike their kin in the animal kingdom, they are mostly active during the day and live in bands of up to 20.

Though not an endangered species, coatimundi are nonetheless protected, which means neither trappers, hunters nor anybody else can kill them. That doesn't mean, however, coatis don't often get caught in traps: Larry and Colleen Britton, the trappers who set the trap Oden chanced upon, told officials they'd previously caught and released three coatimundi.

Trappers maintain that leghold traps (which they prefer to call "foothold traps") are "species specific" and seldom catch "non-targeted" animals. According to the National Trapping Association (NTA), "The selectivity of leghold traps has been documented in studies conducted by the International Association of Fish and Wildlife Agencies in 21 states. The capture of thousands of furbearers resulted in non-target capture rates as small as three percent of total captures, and included no threatened or endangered species." Bill Dunn of the New Mexico game department's wildlife division has cited statistics from "top-notch" researchers showing traps are 90 percent effective in targeting their quarry.

The reality in this case belies those claims. Traps designed to catch bobcats caught four coatis and a squirrel—quite a range of species sizes. That's more in line with a study by the California Department of Fish and Game, which found that to catch 42 bobcats, another 91 non-targeted animals also got trapped.

The truth is, veteran trapper Jeff Lehmer concedes, critters of all types can "screw around" and get trapped—"not everything is sure." The sensitivity of a leghold trap also depends on the trapper's preference in adjusting the "pan tension" for the target's weight. "I myself don't want to catch a squirrel," Lehmer says, "so I keep the pan tension up."

He adds, "If a group of coatis go through, you'll get a whole bunch of them in your stuff. But coatis are tough sons of guns."

Oden, who'd never seen either a trap or a coatimundi before, didn't know that. Nor did he know what the law says a citizen must do rather than take it upon himself to put an injured animal out of its misery.

"I know it sounds cold and heartless," says Frentzel of the game and fish department, "but that injured animal is still the property of the state of New Mexico and you're not allowed to kill it. You should call us, the state police or other law enforcement and let us assess the situation." The laws are designed to protect animals that might in fact be rescued and rehabilitated, he adds, as well as to keep people from using vehicles in effect as hunting weapons. "The intent is not to make an animal suffer."

Yet that's the effect—a result even Lehmer, however hardened to life and death in the outdoors, finds hard to stomach. He tells of calling game officials about an injured deer: "They said they would have had to bring somebody up from Lordsburg. Well, you've got two options then: Kill it and hope you get away with it, or drive away. They told me, 'Don't let nobody see you.'"

Opting to walk or drive away from an injured animal, after following the law and calling authorities, means sentencing that animal to hours or even days of suffering. "We're shorthanded like every other law-enforcement agency," game officer Leon Redman said in an interview last fall. "Our response time depends on the day, where we are, the time of day or night. It could be 10 minutes or the following day."

Redman and Sanchez are the only game and fish officers based in Silver City. Along with officers in Reserve, Socorro and Truth or Consequences, that adds up to five or six people—Frenztel couldn't confirm the exact number—to patrol and respond to any and all calls from the 3.3 million-acre Gila National Forest.

"Ignorance of the law is no excuse"—James Oden must be getting pretty sick of hearing that phrase. But he was ignorant of New Mexico's sometimes-arcane hunting and trapping laws, which fill a 60-page booklet.

Instead, what Oden knew was what he'd learned as a firefighter: "The worst thing you can do is nothing. Assume the worst."

If possible legal consequences flitted through his head at all, well, "Good Samaritan laws" protect people who do the right thing from lawsuits or prosecution if something goes wrong. Unfortunately, those laws don't apply to helping animals.

"I thought it would have been killed anyway if the trappers had found it," Oden explains. "I wanted it to die from someone who had good intent in his heart.

"I thought this animal might be out here suffering for three or four days, so the best thing to do was kill him," he adds. Study of that 60-page booklet would have told him that trappers are required to check their traps every 24 hours—a rule admittedly hard to enforce with one game officer for every 660,000 acres or so of the Gila. In any case, a Web site for the People for the Ethical Treatment of Animals quotes a Wesley E. Burris of the New Mexico Trappers Association as saying, "There is no way a trapper can maintain a trapline in a 24-hour time frame and get his/her job done and stay legal. He has two choices, trap illegally, or not trap at all."

What Oden did next makes it hard for some people to sympathize with him: Having no weapons at hand and not daring to get too close to the writhing, clawed creature, he picked up three or four rocks and pelted the coati with them. Some rocks missed their target. It took more than one blow to finish the job.

"He was more cruel than what was going on with the traps," Lehmer says, adding, "The damn fool ought to pay his little-bitty fine and be done with it."

While a trapper coming upon a coatimundi would presumably have released it or called authorities, the fate of targeted animals in traps is no less awful than Oden's stoning. Trappers want to preserve the pelt, so instead of shooting or stabbing a trapped animal, they opt for some variety of what the NTA euphemistically calls "blunt-force trauma." Bludgeoning, for example, similar to how Oden dispatched the coati, is recognized as a humane euthanasia technique by the American Veterinary Medical Association, according to the NTA (which admits the procedure is "not esthetically pleasing"). Several anti-trapping Web sites quote these instructions from a 1979 book by Bill Musgrove and Gerry Blair, Fur Trapping: A Complete Guide: "Hit the trapped animal just forward of the eyes with a stick. While it is unconscious, use your knee or the heel of your shoe to come down hard behind the front leg. This ruptures the heart and the animal never regains consciousness."

Margot Wilson, conservation chair for the Rio Grande Chapter of the Sierra Club in Las Cruces, points out that if you did to a cat or a dog what trappers do to an animal in the wild, it would be a fourth-degree felony.

The other strike against Oden's actions—legal issues aside—is the question of whether the coatimundi he killed might have been released and rehabilitated. "An animal may have ended up dead that didn't need to," Frentzel says. "It's hard for us to determine what its condition was."

"It was nuts," says trapper Colleen Britton. "There was no reason to do it. We'd released coatimundis before—they're not difficult to release from a trap—and they're not hurt when you let them go. I don't understand why he felt he had to bludgeon it with rocks."

In any case, Oden's goal was not, however, to "mess with" anyone's traps. After killing the coati, he carefully laid it 10-15 feet away on some rocks, so it would be easy for the trappers to spot. "I thought it was sad that people do this, and prayed to God they'd find another way to make money," he says. "Before laying the animal on the rocks, I held it and asked God to take its spirit and help the animal to somehow understand that I didn't do this because there was anger in my heart."

Shaken and "traumatized," Oden made his way back toward his truck. About 50 feet from the trailhead, though, for the first time he did start to feel anger in his heart: He saw a second trap, pinning an injured squirrel.

"I asked God, 'What are you trying to do?'" he recalls, raising his arms as if in supplication. "See, this is the type of person I am. I hope maybe this whole experience will be the biggest spiritual thing in my life, because I will help change these laws."

After the coatimundi incident, Oden was "so pumped up, my adrenaline was so pumping, I opened that trap like a rubber band." Deciding that the squirrel was beyond any other help, he again took a rock and put it out of its misery. "To me, all creatures great and small are equal," he says.

Seeing how the squirrel had been trapped made him realize that the coati's setting had been intentional, with the trap enmeshed in bushes. That made him mad. "I took the trap and threw it in anger. This time I was angry. This was the second time in a single day I'd had to kill an animal!"

By releasing the squirrel and throwing the trap, Oden was again violating state game laws. As several area hikers and homeowners have learned to their surprise, tampering with a trap that's caught your dog or even with an illegal trap is a misdemeanor. Anti-trapping activist Jene Moseley, whose German shepherd, Banjo, came home with its leg in a trap in January 2004, tells of reporting the incident to Redman at the game and fish department: "He lectured me on the illegality of taking traps. If I found traps on my property, I was supposed to call them. I did call, and they didn't show up."

Outdoor lovers like Oden and Moseley are encountering traps with increasing frequency because fur is once again fashionable. US fur sales jumped eight percent to a record $1.8 billion in 2003, according to the Fur Information Council of America. The number of designers showing fur creations has increased tenfold from a decade ago, and celebrities from Jennifer Lopez and Renee Zellweger to Chris Rock and Cuba Gooding Jr. are sporting fur.

Prices for bobcat pelts have responded by jumping from $30 in 1997 to $200 or more. As trapping has grown more lucrative, New Mexico's 300-400 active trappers have collided with ever more of the state's 40,000 hikers.

Out-of-state trappers like the Brittons have also been attracted to New Mexico's population of bobcats and other furbearing animals. The 2004-05 bobcat season ran from Oct. 15 to March 15, putting Oden's ill-fated hike right in the middle of it.

Although trappers defend their sport as "wildlife management," bobcats are the only target species that New Mexico bothers to count—because they fall under federal laws covering spotted cats. Within 30 days of getting a bobcat pelt, you have to obtain an official tag; about 1,000 are issued annually. The toll of other species is measured only by a random survey of trappers. Based on comparison with the actual number of bobcat tags, those self-reported figures represent less than one-third of the actual "wildlife management" from trapping. The truth is, nobody knows the true impact of trapping, because the regulations are so loose—unlike hunting or fishing—that the killings don't even get tallied. Angling for crappies is more closely regulated in New Mexico than trapping foxes, badgers or beaver. It's also more expensive: A resident trapping license costs $12, a fishing license $17.50.

No wonder trappers like Larry and Colleen Britton are attracted to New Mexico; the Brittons spent roughly four of the five-month 2004-05 trapping season here, living in a home in Gila. "They're pros," says Lehmer. "They come out here and spend long days. You have to admire their tenacity. You have to work sunup to sundown if you want to make real money trapping."

It was about 1 p.m. on Jan. 19 when, according to her written statement, Colleen Britton was checking traps up a wash off trail 4233M and noticed Oden's red F-150 parked in the wash. About two hours later, checking a trap off trail 837, she states, "It was apparent that I had captured something. Except the animal was gone. There was a lot of coarse black hair in the trap. Blood on the ground that was very fresh and the same boot prints that were at the red pickup I seen earlier in the day. The black coarse hair meant to me that I had captured a non-target animal and enough blood to know someone had killed it and it had just happened."

Strangely—and here the neat and tidy case against Oden begins to get tangled, though not necessarily in a way that will keep him out of jail—she insists she didn't see the coati carcass, which Oden says he'd arranged prominently only 10-15 feet away. Instead, she somehow assumed that the interloper was carrying the animal—possibly "a bear or a lion"—back to his truck. She and her husband decided to hop in their own vehicle and beat him there. With the culprit thus trapped on a dead-end road, the Brittons then went on out to Hwy. 90 to try to "flag down a police officer."

"As if by magic," as attorney Byorick puts it, New Mexico State Patrolman David Neal appeared. This was about 3 p.m. by Oden's account, after 4 p.m. by the Brittons'. According to Oden, Officer Neal would later tell him that he knows the Brittons and that they're "good people," and that though he doesn't trap himself, others in his family do. (Officer Neal did not respond to Desert Exposure's request for comment on this article.) As the subsequent confrontation between Oden and the Brittons would suggest, the trappers may have been watching for someone they thought was tampering with their traps. Did the swift appearance of the state patrolman mean that Oden had unwittingly walked into some sort of "sting" meant to catch someone else?

Colleen Britton dismisses such notions as sheer craziness: "There was nothing conspiratorial about it." Yes, she says, they'd had trouble with their traps every now and then, but she laughs at the idea of a "sting." They'd never met Officer Neal before. Sure, they were waiting for Oden, but only because she'd found that "messed-with" trap and they knew the perpetrator would have to come out right past them and the officer they'd flagged down.

Depending on who's telling it, at about 3:15 or 5 p.m. Oden emerged to find Neal and the Brittons waiting for him. "These people are accusing you of messing with their traps," the officer told the still "freaked-out" Oden. According to Oden, Neal also said to him, "James, you were in the wrong place at the wrong time." (Sanchez' written report says he told Oden the same thing.)

The officer proceeded to interview Oden—without reading him his Miranda rights—and, with Oden's permission, search his truck. Neal failed to find any trace of an accomplice that the Brittons claimed was involved ("Where's your buddy?").

"His constitutional rights were violated by being held for several hours by the highway patrolman," argues Byorick. "By taking James' driver's license, he was in effect held in custody."

During this time, as Oden relates it, he was confronted by the armed, finger-wagging trappers and their accusations: "What did you do with the body of the animal you killed?" "We've got you now. Keep talking, buddy, you're digging your grave deeper." For his part, Oden says, "I tried to connect with those people in my heart."

He also confessed everything he'd done to the state patrolman. Says Colleen Britton, "This was all his own admission. This was not us making accusations. This was him telling the police officer what he'd done."

Officer Neal seemed sympathetic but nonetheless called the game and fish department in Santa Fe. Game and fish officer Rey A. Sanchez says he got the dispatcher's call about 5:30 p.m., just as he was leaving Bill Evans Lake. Sanchez arrived at the scene about 6 p.m., and Neal brought him up to speed. Sanchez went to question Oden and—finally—Mirandized him.

Says Byorick, "Since James is not denying killing the coatimundi, the Miranda issue is a technicality, but it goes to the overall picture." A defense attorney could argue, he adds, that since Neal's questioning would have to be disallowed and the patrolman told Sanchez what he'd learned, the game officer's subsequent questioning based on this information would likewise be "poisoned."

Talking to Sanchez, Oden was adamant that he'd left the coatimundi by the trap. After Oden drew a map of the location, Sanchez told him he was free to go, although an investigation would be conducted. Sanchez then interviewed the Brittons, checked their furbearer license and made certain their traps were legally set.

By now it was getting dark, and evidently Sanchez decided it was too late to drive the three miles to the crime scene. It had been a long day for everybody.

Shaken, Oden contacted Mike Byorick, who's actually a semi-retired patent attorney. "I was the only guy in town available to represent him," Byorick says. Ultimately, the case attracted the help of Larry Weiss, a retired animal-rights lawyer, and Kat Albright Hummell, an attorney with Animal Protection of New Mexico.

Meanwhile, Sanchez continued his investigation. (He declined to be interviewed for this article, referring questions to higher-ups.) On Jan. 23, he arranged to meet Colleen Britton back at the scene the following day. During that phone call, she admitted to him that "while checking her trap she had found the coatimundi." It's not clear whether this was before or after telling authorities she had seen only fur, that she thought Oden was carrying the animal to his truck, and that it could be a bear or a mountain lion.

On Jan. 24—five days after the incident—Sanchez finally went to the actual crime scene, accompanied by the Brittons. According to the officer's report, "Mr. Britton removed some brush and showed me a dead coatimundi on the ground." Sanchez took pictures and GPS measurements, then retrieved the carcass for safekeeping in the department's evidence freezer.

If you've watched your share of TV crime shows, you probably have several questions by this point: Who covered the coati with brush? Exactly when did the Brittons find the dead animal? Were they watching while Oden (who says he heard a car door slam) put it out of its misery? Was the coati found on Jan. 24 even the same critter? After five days sitting out in the wild, following the "chain of possession" for the carcass in this case would make the troubled Albuquerque police evidence lab look like Sherlock Holmes.

"They can't correlate the animal, the trap or the location," says Byorick. "It proves bias on their part—they didn't look for the evidence initially."

But this isn't an episode of "CSI" and, remember, Oden confesses to killing a protected animal. "All this is not of interest to the court," Byorick concedes with a shrug.

"That's what hurts," Oden agrees, hanging his head. "I'm stuck."

For a time, though, Oden and his attorney both began to believe the whole mess had simply been dropped. Two weeks later, Sanchez told Byorick that his client had yet to be charged with a crime. Almost a month after the incident, Oden happened to check his mailbox—he doesn't get much mail, so this is infrequent—and found a letter waiting for him. He opened it to find an official criminal complaint, with less than a week remaining before a warrant would have been sworn out against him.

His lawyer sputters with disbelieving exasperation. "They used first-class mail to serve a criminal complaint! Not even registered or certified mail!" Byorick exclaims. "That's not constitutionally viable."

He's also at a loss to understand why authorities would go forward with a case that's so self-admittedly a matter of being in "the wrong place at the wrong time," with such potential public-relations downside. "If game and fish is so strapped that they can afford only two employees here, why tie up one in court and tie up the court system unless there's some larger issue in their mind? I'm dying to know." The best explanation he's heard, Byorick says, is that the department wants to make an example out of Oden, to show trappers that officials really will safeguard their traps from tampering.

Game and fish spokesman Frentzel insists the prosecution is simply a matter of fairness. "Five years or so ago we prosecuted a trapper for killing a coatimundi," he says. "So if this guy [Oden] whacks a coatimundi, we have to prosecute him, too. We have to keep the playing field level. We don't look at intent. We do our best to apply the law equally."

Byorick also wonders about the Sixth Judicial District Attorney's office, which he says could opt not to pursue the case. "I can't see why they'd spend their resources on this." Clearly the DA's office does have more important crimes to pursue: The assistant DA originally on Oden's case, Byorick says, pulled herself off to handle child abuse and child pornography cases.

"Why are these two allegedly independent agencies, with clearly limited resources, going full speed ahead toward at best a pyrrhic victory?" Byorick asks.

At Oden's arraignment, Judge Ron Hall observed, "This case is going to be very interesting." Oden pleaded not guilty and exercised his right to request a jury trial. "I refuse to give in to the injustice that's being done to me," he says.

Expect Oden and his attorneys to eschew any legal technicalities—despite the many oddities of the case—and focus instead on that "injustice" and what they believe is the injustice of trapping itself. Activist attorney Weiss' strategy, as Byorick puts it, "is to make the larger issue the issue."

Trapper Colleen Britton says, "It's just a shame to spend taxpayer money to put on a trial for something the man says he did, to let him have this stage so he can push his views on people. It's sad when people use the legal system like that."

Turning this into a show trial against trapping doesn't mean his attorneys will simply let Oden go to jail without a fight once they've grabbed some headlines, however. New Mexico doesn't allow "jury nullification," wherein juries do what they think is right despite the letter of the law—and Byorick expects the prosecutor will make sure the judge reads the jury instructions to that effect. "You can't decide based on your heart," he explains. "We will have a sympathetic jury, and this case will put them in a real bind. But we hope to enable them to comply with the law while recognizing that in their hearts they would have done exactly the same thing in James' place."

Guilty or innocent, jailed or not, Oden just hopes some good comes out of his ordeal. Still, he confesses forlornly, "This has not been easy at all. Please remember that I came here to be at peace. This has been a traumatic experience. Something in me has been bruised."

"We all make mistakes," says Frentzel of the game and fish department. "Sometimes you get a ticket for speeding. You can fight it and go to court or pay the fine and try to do better. This case has certainly raised a lot of awareness, but I wish it could have done it some other way."

So what would James Oden do if he came upon a trapped animal another time? The former firefighter's eyes seem to fill with smoke as he ponders this for a long minute. At last he answers softly, head hanging down, "I hope God never puts me in that situation again. I'm educated now.

"As hard as it is, I'd leave it alone. I'd walk right by and get in my truck."

David A. Fryxell is editor of Desert Exposure.

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