A dozen Kenai Peninsula residents stood in front of the Kenai Courthouse on Monday afternoon. Their picket signs touting alleged systemic corruption originating from the government building 20 feet away.
They stood in support of David Haeg, a once-prominent hunting guide fighting against the Alaska court system. During an April 30 court hearing that fight crept forward, but the state argued its opposition at length.
The hearing centered on the claims of ineffective counsel of Haeg’s attorneys, as well as allegations of dishonesty by Judge Margaret Murphy and Trooper Brett Gibbens during Haeg’s 2004 trial in McGrath.
Haeg said he hopes his conviction is overturned and he receives financial compensation.
It was the state’s second motion to dismiss Haeg’s post conviction relief, a last resort challenge to conviction. Assistant Attorney General Andrew Peterson attended the hearing in person.
The predator-control program approved by the Alaska Board of Game in 2003 was still in its infancy when Haeg and Tony Zellers applied for and were granted a permit allowing them to kill wolves in an area near McGrath, Game Management Unit 19D.
Haeg originally was charged with violating the terms of his aerial wolf-control permit for shooting nine wolves 20 to 30 miles outside the unit. Those charges against Haeg unexpectedly were changed. Using statements made during a five-hour plea-agreement interview, the state instead charged Haeg with the crime of same-day aerial hunting to benefit his guide business.
Arguing the state had discussed some type of immunity — that his statements would not be used in court — for the five-hour interview is a key defense of Haeg’s. During the April 30 hearing, he reiterated this belief, which he also has submitted in many affidavits.
Peterson, who commenced arguments before the court on Monday, said immunity was never granted or discussed. Immunity is given from the attorney general or his designee. The trial’s involved parties, including Haeg’s first attorney Brent Cole, also have said such privileges were not granted, he said.
“In affidavits, (Scot) Leaders and Gibbens have said the same,” Peterson said. “Cole, in hearings before the bar association said the same. Haeg alleges the state used his statements unfairly, but rule 11 was in place.”
Alaska’s criminal rule 11 centers on pleas of guilty or no contest. It says the court shall not accept either of those pleas without addressing the defendant personally and determining if the nature of the charges is understood, among other things.
Kenai District Attorney Leaders was the prosecutor during Haeg’s trial in McGrath.
Judge Carl Bauman asked Peterson to comment on the relevance of the State of Alaska v. Gonzalez, a 1993 Alaska Supreme Court case Haeg has cited in his affidavits. In the case, it was ruled state law prohibits prosecution for anything a person talks about during a statement given due to the grant of immunity.
Peterson said he was unfamiliar with the case so Bauman inquired as to Peterson’s understanding of Zellers’ attorney Kevin Fitzgerald’s comments that he thought some type of immunity was in place for Haeg and his client during their plea-agreement interviews.
Zellers pleaded guilty and testified against Haeg as part of his plea agreement. Leaders confirmed the statements would not be used during trial, Peterson said.
“You can deduce from that that Fitzgerald wouldn’t have Zellers come in, make a statement and then plead guilty to (the charges) if he was going to be granted immunity,” he said.
Peterson argues the men were never granted immunity, but, regardless, their statements were not used.
Haeg, during his rebuttal, said he has tape recordings of Cole and Fitzgerald “testifying under oath” that the state specifically gave him transactional immunity.
Gibbens said during the interview that kill sites found in Game Management Unit 19C benefited Haeg’s guide business. He asked Haeg to mark the locations of the wolves’ carcasses on a map, Haeg said.
The map showed up at trial, Haeg said.
“Those are the marks I made during my immunized interview, and now it shows up at (the 2004) trial,” he said. “The use of the map was not objected to by my lawyer.”
Attorney Chuck Robinson was representing Haeg during that time. Cole had been terminated after Haeg refused the state’s plea agreement offer and the trial shifted to open sentencing. Ultimately, the jury found Haeg guilty. His plane was seized and his guiding license was revoked.
However, upon cross-examination during the 2004 trial, Gibbens withdrew his statements about the location of the wolves. Murphy ruled that Haeg was not to guide for five years and reasoned it was a sufficient judgment because wolves had been killed in his guiding area.
The court ignored the evidence, Haeg said.
Failing to mention the improper use of the map during the trial and ignoring Haeg’s allegation that a Board of Game official told him to shoot wolves wherever it was needed are central to the argument of incompetent counsel by his hired attorneys.
The tail ends of both party’s arguments focused on alleged chauffeuring by Gibbens of Murphy during the 2004 trial.
The Alaska Council on Judicial Conduct found no evidence to support even the appearance of impropriety by either the trooper or judge, Peterson said.
“There were no rides (during the trial), no meals eaten together and no socializing,” he said.
One ride did occur, but it took place after sentencing, he said.
Not many flights travel to and from Aniak, a small community located on the south bank of the Kuskokwim River. Planes land there then fly back to McGrath to drop off additional passengers.
On many trips, Haeg said, himself, family, friends and other individuals involved with his case flew at the same time. And not once did he see Murphy walk to the courthouse. Instead, she was picked up and chauffeured by Gibbens.
“Never once did I see her walk to the courthouse,” he said. “Every single time she was in the truck with Trooper Gibbens.
“We saw it. Day in and day out.”
After receiving his sentence in 2004, Haeg filed a complaint against the chauffeuring. Marla Greenstein, the sole judicial investigator for Alaska, investigated the complaint.
Greenstein found a single incident of chauffeuring occurred after the trial’s sentencing. She concluded no misconduct happened during the chauffeuring.
As part of the investigation, she supposedly contacted people on both sides of the case, including Haeg’s wife and paralegal. She reported the parties did not recall seeing multiple instances of chauffeuring. Greenstein did not contact the people she reported to have called, they said. A total of 15 witnesses have submitted affidavits alleging the contact did not occur.
Bauman asked Haeg how he thought this contact affected his case.
Every decision handed down by Murphy was against him, Haeg said.
“She said I couldn’t bring up that the wolf-control law would protect me,” he said. “So, there was no jury instruction that I had a wolf-control permit in my pocket. And Gibbens committed perjury (by back tracking on the location of the kill sites) right in front of her, and she didn’t even lift a finger.”
Haeg’s temper flared throughout the hearing, letting expletives slip time and again.
The judge sat patiently through the two hours of arguments, asking questions to both parties and offering his understanding of the claims occasionally.
Bauman did not offer an immediate judgment. He said his decision will be rendered in writing in the near future. If he sides with Haeg an evidentiary hearing will be scheduled, and the former guide will edge closer to accomplishing a parcel of his eight-year goal.