HAZELWOOD LEGAL BATTLE CONTINUES
SUPREME COURT OPINION CLOUDS CONVICTION ISSUE

By LIZ RUSKIN
Daily News reporter

ANCHORAGE- Capt. Joseph Hazelwood's on-again, off-again conviction for spilling 11 million gallons of oil into Prince William Sound is on again maybe. The Alaska Supreme Court on Friday released an opinion that breathes new life into the nearly dead conviction and sent the case back to the Court of Appeals. That's the court that last year threw out Hazelwood's single misdemeanor conviction for polluting Prince William Sound.

"The bottom line for Joe Hazelwood is the fight goes on," said his attorney, Rick Friedman.

In 1990, a Superior Court jury acquitted him of drunkenly operating the tanker Exxon Valdez and of two other charges stemming from the 11 million- gallon oil spill. The jury convicted Hazelwood of only one pollution charge: negligent discharge of oil.

Last year, the Court of Appeals tossed out that conviction, saying the evidence used against him stemmed from his own report of the spill, so he was illegally prosecuted. Now, the Supreme Court says, evidence that would have surfaced without his report may be allowed.

Hazelwood, who was in his cabin when the Exxon Valdez hit Bligh Reef on March 24, 1989, radioed the Coast Guard about 20 minutes after the grounding in Prince William Sound that his ship was "hard aground" and "evidently leaking some oil."

A federal law, designed to encourage self-reporting of toxic spills, says prosecutors can't use a person's notification of a spill as evidence against that person. Nor can they use any evidence derived from that report.

Before Hazelwood's trial began, Superior Court Judge Karl Johnstone determined that if Hazelwood had not reported the spill, the Coast Guard would have discovered it in about 17 minutes anyway, so everything that happened afterward could be presented to the jurors as evidence.

The Court of Appeals decided that Johnstone erred, that the evidence had to be thrown out. But the high court reversed that panel's decision. The justices said the inevitable discovery of the spill can be considered as a basis for letting the evidence in.

"It means we're back in the Court of Appeals and it means he is not entirely immune from prosecution," said Cynthia Hora, the assistant attorney general who argued the state's case to the justices. "So now the question is: What evidence can be used?"

Prosecutors have maintained that the investigation into the spill would have proceeded along the same path without Hazelwood's report, so there's plenty of evidence.

But defense attorney Friedman said delaying the start of the investigation by 17 minutes would have changed everything.

"They have totime cleaning oiled rocks. Hazelwood is also appealing the sentence.

Supreme Court Justice Jay Rabinowitz wrote Friday's 3-1 opinion. Justice Allen Compton dissented, saying the Court of Appeals' decision should have been upheld. Edmond Burke, who recently retired from the high court, did not participate.

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