HAZELWOOD CASE HAS 2ND GO IN APPEALS COURT

By T.A. BADGER
The Associated Press

FAIRBANKS- Lawyers for Joseph Hazelwood argued before the Alaska Court of Appeals on Tuesday that a negligent discharge of oil conviction against the former Exxon Valdez skipper should be tossed out because prosecutors wrongly used protected statements he made as the foundation for their case.

Anchorage lawyer Richard Friedman said the federal law that required Hazelwood to report the nation's worst-ever oil spill also granted him immunity from state or federal prosecution.

This is the second time the appeals court is considering the case. The first time around, nearly three years ago, the three-judge panel agreed that Hazelwood had immunity and overturned his 1990 misdemeanor conviction.

But in December 1993, the Alaska Supreme Court ruled that Hazelwood's protection from prosecution was limited because the 11-million-gallon spill in March 1989 would have inevitably been discovered. The high court returned the case to the appeals judges for another look.

Friedman stuck to the argument that the state violated Hazelwood's constitutional rights by using statements he made in the hours after the tanker impaled itself on a charted reef in Prince William Sound. The statements were used both as direct evidence at his trial and to gather other evidence, Friedman told the judges.

The immunized statements included the initial spill report; his answer "You're looking at it" when an Alaska State Trooper sent to the grounded tanker asked him what the problem was; and a lengthy interview with a Coast Guard investigator in which Hazelwood admitted he drank a beer in a bar before sailing and that he left the Exxon Valdez's bridge after turning the vessel outside the shipping lane without giving Third Mate Greg Cousins explicit instructions on when to return to the lane.

And because there is no way to ensure that Hazelwood's statements wouldn't be used again in the event he was granted a new trial, the entire case against him should be dismissed, Friedman said.

Cynthia Hora, an assistant attorney general, said the statements in question were given voluntarily and were thus admissible.

But in the event the appeals court felt otherwise, she also argued that using the statements constituted a "harmless error," meaning they didn't appreciably affect the negligent discharge verdict against Hazelwood, who was acquitted on three more serious charges, including operating a tanker while drunk.

Friedman relied largely on a 1993 Alaska Supreme Court ruling in the case State of Alaska vs. Gonzalez, which held that the state constitution prohibits prosecutors from using immunized statements.

"Gonzalez means not using a person's own words to convict them in any way," Friedman said.

Hora countered that Gonzalez is not applicable in Hazelwood's case, as his statements weren't made in a criminal context.

Reporting of an oil discharge in U.S. waters is required under federal regulatory law to make sure the oil is cleaned up, she said. Because there is no assumption of criminal conduct by the person doing the reporting, any statements made beyond a simple spill report are fair game, she said.

Hora also argued that Hazelwood forfeited his claim to complete immunity from prosecution under Gonzalez by not sufficiently challenging a ruling by Superior Court Judge Karl Johnstone, who ruled before trial that the skipper's immunity was limited under state law.

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