Capt. Joseph Hazelwood's radio message that his impaled tanker was "leaking some oil" is not what sent state and federal investigators racing toward Bligh Reef on March 24, an assistant district attorney said Monday in Anchorage Superior Court.
What galvanized the Alaska State Troopers, the state Department of Environmental Conservation and the U. S. Coast Guard was his startling announcement that the 987foot Exxon Valdez had "fetched up hard aground," said prosecutor Bob Linton.
If Hazelwood had not radioed the Coast Guard at 12:27 a.m. and mentioned spilled oil, if he had remained totally silent about his plight, the investigation that eventually led to the filing of charges against him would have proceeded pretty much as it did and turned up the same evidence, Linton said.
Including, apparently, the conclusion of an Alaska State Trooper, who arrived on board the Exxon Valdez about seven hours after the collision, that there was insufficient probable cause to test or arrest the nowfired skipper for drunken driving. He was eventually tested by the Coast Guard.
Hazelwood is charged with operating a vessel while intoxicated, reckless endangerment and negligent discharge of oil, all misdemeanors, and three felony counts of criminal mischief.
In a pretrial hearing that could last up to two weeks, lawyers for Hazelwood and the state have squared off over an issue with a Star Trek story line. The question under debate is, how different would history have unfolded if Hazelwood had not reported the nearly 11milliongallon spill?
The defense claims that Hazelwood is immune from prosecution and Linton conceded in opening statements that state and federal laws grant a limited kind of immunity to polluters who turn themselves in.
But there are cases where the immunity doesn't apply, he told Judge Karl Johnstone, who must decide whether to dismiss the charges.
There is no immunity when discovery of the spill was inevitable, Linton said, and prosecution is possible when evidence supporting charges against the responsible party was developed independent of his report.
All information discovered after the moment of inevitable discovery is admissible against Hazelwood, he argued. It's up to the judge to decide just when that moment occurred. For instance, Linton said, a man who could see the grounded tanker from his home said he would have reported it at about 6 a.m., except that it was already on the radio.
Defense attorney Rick Friedman said that kind of "might have . . . could have . . . should have" theorizing cannot be used to avoid giving Hazelwood his "congressionally granted immunity."
It's impossible now to figure out what would have been, impossible to theoretically extract isolated bits of information from the investigation and conclude that prosecutors would still have a good case.
For instance, Friedman said, without Hazelwood's radio message, state and Coast Guard investigators certainly would have arrived at the stricken ship several hours later than they did. By then, the smell of liquor would have been gone from the captain's breath and perhaps he would not have said, "You're looking at it," when asked what problem caused the disaster.
"His calls clearly precipitated everything that came after," Friedman said.
Not so, said Linton. No matter what Hazelwood did, the grounding and spill would inevitably have been discovered by an inbound Chevron tanker, by fishermen or a pilot in the area, or by residents of Ellamar, an old mining camp that overlooks Bligh Reef.
No one needed to be told the ship was probably leaking, Linton said, and his witnesses supported him.
"There is no place you can send a ship aground in Prince William Sound where it won't leak oil," said Dan Lawn, chief DEC investigator in Valdez. "It's a series of submerged mountain ranges."
"Right from the beginning, I realized this was going to be a big thing," said Michael Fox, a Fish and Wildlife Protection trooper who arrived at Bligh Reef about seven hours after the grounding, thinking he had been summoned to subdue a rowdy drunk. "It was just amazing to me that there was a tanker on Bligh Reef."
Fox arrived on board the Valdez at about 7 a.m. only to discover that the Coast Guard expected him to take blood samples from the crew, something troopers cannot legally do. The only evidence supporting a drunken driving allegation against Hazelwood were reports that some people had smelled alcohol on his breath, which was not enough legal cause for an arrest, or even to wake Hazelwood up after he went to sleep, Fox said.
Fox said he was frustrated that the Coast Guard, which did not need probable cause to test the sailors, took another three hours to get someone out to the ship who could take blood when he could have gotten someone faster.
Six hours of testimony from the three witnesses called to the stand Monday focused in numbing detail on who did what that day, and when and why. Nothing new or unexpected emerged. Linton got the witnesses to say they would have done what they did regardless of Hazelwood's radio call. Friedman got them to say they got most of their investigative leads from observing aboard the Valdez and talking to Hazelwood himself.
Hazelwood is attending the hearing, but Friedman said he probably will not testify.
A hint of the emotions and frustrations that beset those who arrived early on the disaster scene did seep through in the testimony of Fox, Lawn and nowretired Coast Guard investigator Mark Delozier.
Lawn, who learned of the grounding at about 1 a.m., an hour after it happened, said his superiors at DEC seemed to think he should wait until more information was available about the severity of the spill before mobilizing. "I knew intuitively . . . we had a major catastrophe," Lawn said.
And Delozier was frustrated when he discovered that Fox "wasn't going to be any help." Delozier testified that he "observed a strong odor of alcohol" on Hazelwood's breath at about 3:30 a.m. But by 10 a.m., when blood and urine tests were finally taken, Hazelwood's blood alcohol level tested out at .06, above permissible Coast Guard levels but below the .10 level that makes a driver drunk under state law.
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