HAZELWOOD CONVICTION TOSSED OUT
DEFINITION OF 'NEGLIGENCE' CRITICIZED; STATE TO APPEAL

By LIZ RUSKIN
Daily News reporter

ANCHORAGE- Capt. Joseph Hazelwood's on-again, off-again conviction for spilling 11 million gallons of crude into Prince William Sound is off. Again.

The Alaska Court of Appeals on Friday tossed out Hazelwood's misdemeanor conviction for negligent discharge of oil, ruling that the jury was given the wrong definition of ''negligent.''

Hazelwood, the Court of Appeals said, is entitled to a new trial.

The case, stemming from the 1989 Exxon Valdez oil spill, has been the subject of three appellate decisions. And it's not over yet. Deputy attorney general Laurie Otto said the state will appeal Friday's decision to the Alaska Supreme Court. If the state is successful in the highest court, the case would go back to the Court of Appeals for another round.

''I can't imagine why they're pursuing this,'' said Rick Friedman, Hazelwood's lawyer.

The tanker 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.

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. Superior Court Judge Karl 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, arguing that, under a federal law, he was entitled to immunity because he reported the spill himself.

In 1992, the state Court of Appeals 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.

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

In Friday's decision, the Court of Appeals conceded that the Coast Guard would have eventually discovered the spill, but rejected Johnstone's finding that it would have inevitably happened within 19 minutes. Therefore, the Court of Appeals decided, Johnstone was wrong to allow the jury to hear evidence about the amount of alcohol found in Hazelwood's blood and urine, which would have changed if the samples hadn't been collected exactly when they were.

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

The Court of Appeals didn't say whether it thought these mistakes alone would be enough to toss out the conviction. Rather, the court based its reversal on the jury instruction Johnstone gave regarding the definition of ''negligence.''

State prosecutors had argued, and Johnstone agreed, that they need only prove Hazelwood acted with simple negligence that night -- that his conduct amounted to ''a deviation'' from the standard of care that a reasonable person would have observed in the same situation.

Hazelwood's lawyers said, and the Court of Appeals concluded, that the state should have been required to prove that he acted with criminal negligence -- committing ''a gross deviation'' from the reasonable-person standard.

Otto, the deputy attorney general, said Friday that the Alaska Legislature would have specified criminal negligence when it created the pollution law if that's what it intended.

If the Supreme Court decides she is right, the Hazelwood case would still have to go back to the Court of Appeals to decide whether the evidence errors it found were sufficient to justify a reversal of the conviction.

The state's persistence astounds Hazelwood's lawyer.

''At this stage,'' Friedman said, ''why is it important to have 1,000 hours of community service of Joe Hazelwood?''

The jury, he noted, acquitted Hazelwood of all the serious charges, leaving only one low-level misdemeanor.

''And ever since, the state has let this tiny little tail wag this big dog,'' he said.

Otto said the state is pursuing the case in part because it needs a ruling on what is meant by ''negligence,'' a term that is used in many statutes besides the pollution law, and because Hazelwood should be prosecuted.

''I think this is a case of great importance to Alaskans . . . and I think it's important to cases like this that the law is applied appropriately,'' she said.

Hazelwood, of Long Island, N.Y., has been working for his Manhattan lawyer, Mike Chalos, as a consultant in marine affairs.

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