HAZELWOOD CONVICTION REINSTATED

By LIZ RUSKIN
Daily News reporter

ANCHORAGE- Capt. Joe Hazelwood's misdemeanor conviction for negligent discharge of oil -- the only criminal conviction to arise from the massive Exxon Valdez tanker spill -- has been reinstated.

The Alaska Supreme Court, in an opinion released Friday, ruled that Superior Court Judge Karl Johnstone did not err in 1990 when he told a jury to hold Hazelwood to the standard of negligence found in civil law, rather than the tougher standard of criminal negligence. The opinion reverses a 1996 Court of Appeals decision that threw out the conviction.

It is only the latest step down the long appellate path for Alaska's most notorious criminal defendant. Hazelwood's misdemeanor now has been the subject of two Court of Appeals decisions, both of which tossed out the conviction, and two Supreme Court decisions reinstating it.

And the end may not yet be in sight: In Friday's opinion, the Supreme Court sent the case down the worn path to the Court of Appeals for yet more proceedings, which virtually assures another trip back up to the Supreme Court.

The Exxon Valdez ran aground on Bligh Reef shortly after midnight on March 24, 1989. About 20 minutes later, Hazelwood radioed the Coast Guard.

''We've fetched up hard aground ... and, uh, evidently leaking some oil,'' the skipper reported.

Eventually, 11 million gallons poured into Prince William Sound.

State prosecutors lost most of the criminal case against Hazelwood at a three-month Superior Court trial in 1990. The jury found him not guilty of drunkenly operating the tanker and two other charges. It convicted him of only one pollution charge: the negligent discharge of oil. Johnstone sentenced Hazelwood to 1,000 hours of community service cleaning oiled beaches and ordered him to pay $50,000 in restitution.

Hazelwood appealed both the conviction and the sentence. In the first round, his lawyers argued that he was entitled to immunity because he reported the spill himself.

The Court of Appeals agreed. In a 1992 decision now referred to as Hazelwood I, it threw out the conviction, saying Judge Johnstone erred when he decided before trial that the spill would have been discovered by a Coast Guard traffic controller anyway within 19 minutes of Hazelwood's report, so all evidence collected afterward could be admitted.

The Alaska Supreme Court, however, reversed the 1992 decision the next year. The inevitable discovery of the spill can be considered as a basis for letting the evidence in, the high court said in Hazelwood II.

The high court then sent the case back to the Court of Appeals.

In Hazelwood III, the Court of Appeals, now conceding that the Coast Guard would have eventually discovered the spill, still rejected Johnstone's conclusion about the timing. Therefore, the Court of Appeals decided, Johnstone was wrong to allow the jury to hear evidence about tests performed on samples of Hazelwood's blood and urine collected hours after the spill.

The judges also said Johnstone shouldn't have let the jury hear the statements Hazelwood made to investigators that night.

The state's attorneys say that if Johnstone erred by letting the evidence in, the errors were harmless, meaning the jury's verdict would have been the same.

The Court of Appeals hasn't decided whether the errors were harmless. In Hazelwood III, it threw out the conviction based on the jury instruction Johnstone gave regarding the definition of ''negligence.'' The judges said Hazelwood is entitled to a new trial.

In the latest ruling, Hazelwood IV, the Supreme Court came to the opposite conclusion. Justice Jay Rabinowitz, who formally retired this year but still is working for the court system, wrote the 2-1 opinion. He was joined by Justice Warren Matthews. Two justices, Dana Fabe and Robert Eastaugh, sat out the ruling.

They sent the case back to the Court of Appeals to decide the remaining questions, such as whether it was harmless error to let the jury hear Hazelwood's statements and the evidence about his toxicology tests.

Justice Allen Compton wrote a dissent, saying he agrees with the Court of Appeals on the appropriate definition of negligence.

Deputy attorney general Cindy Cooper said the state will continue to oppose Hazelwood's efforts to get the conviction thrown out. Even though it's only a misdemeanor, she said the case raises important constitutional questions that should be decided because they have broader implications. Hazelwood's infamy, she said, isn't driving the state's decision.

''He's symbolic of something, but that doesn't play into it,'' she said.

She's taken other misdemeanors up and down through the state appeals courts and then over to the federal system, she said.

Hazelwood, now 51, lives on Long Island and commutes to work in the Manhattan office of one of his lawyers, Michael Chalos, where he is a maritime consultant. His former employer, Exxon, has been paying his legal bills.

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