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Kenai judge sets former guide’s original sentence aside

Posted: August 30, 2012 - 7:36am  |  Updated: August 30, 2012 - 5:15pm

A former hunting guide who was prosecuted for illegally shooting wolves from the air outside a state-prescribed area in 2004 failed during two oral arguments to prove the Alaska court system wrongfully convicted him, according to a Kenai judge.  

In a 35-page judgment issued July 23, Superior Court Judge Carl Bauman concluded David Haeg did not present sufficient evidence to overturn his conviction. Bauman decided the Funny River resident’s sentence should be set aside, however, due to “an appearance” of improper behavior by the trial judge and an investigating Alaska Wildlife Trooper. 

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. He alleges personnel at the Board of Game instructed him to do what was necessary for the sake of the new program. 

Alaska State Troopers seized his Piper Super Cub plane outfitted for his game-hunting business early in the investigation. But the Federal Aviation Administration refused to transfer title of the plane to the state during Haeg’s prosecution — the plane is owned by Bush Pilot Inc. and the court judgment was against Haeg. 

An oral argument on March 13 at the Kenai Courthouse centered on the plane and Haeg’s allegations of misconduct surrounding its forfeiture. The plane is now a “rust bucket,” Haeg said during the hearing. 

An April 30 court hearing centered on claims of ineffective counsel by attorneys, as well as allegations of dishonesty by Judge Margaret Murphy and Trooper Brett Gibbens during Haeg’s 2004 trial in McGrath.

On many trips, Haeg said, himself, family, friends and other individuals involved with his case flew to McGrath at the same time. And not once did he see Murphy walk to the courthouse. Instead, she was picked up and chauffeured by Gibbens. 

Haeg has argued the two likely discussed case details while together. 

The contact between Murphy and Gibbens, Bauman wrote in his judgment, appeared to be a matter of convenience and necessity in McGrath due to the absence of public transportation. 

He continued, however, and decided, “The acknowledged contact, notwithstanding innocent intentions, is sufficient to set aside the sentence.”

The court moved the re-sentencing back to McGrath’s district court. Bauman ruled another trial or hearing about the chauffeuring is not warranted; the evidence would be cumulative, he wrote. 

“This is strange because if chauffeuring during my trial meant my sentence was unfair it would also mean my conviction was unfair,” Haeg wrote in an email. 

Witness testimony would prove this, he added. 

Haeg filed a motion to change the re-sentencing judge and venue to Kenai. He also filed an appeal to Bauman’s post conviction relief (the two oral arguments) dismissal. 

It took Haeg about three years to complete his appeal before the aforementioned oral arguments occurred. 

Bauman followed decisions previously set by Alaska Court of Appeals for most of Haeg’s arguments. Here are some of his rulings:

* Haeg argued a Board of Game official told him to take wolves outside wolf control program area. Haeg refers to a board member as the state in a briefing, but private statements do not qualify as state action. 

* Haeg submitted no substantial evidence that his counsel failed to communicate a formal plea offer to him or advised him not to accept a deal offered by the state. The contrary happened, as his attorneys recommended accepting an offer. Haeg chose to reject the offer, as he had the right to do. 

* Alleged ineffective assistance about retrieving the seized plane is outside the scope of the post conviction relief hearing. 

Haeg plans to continue his fight against the state. He said the cover up of impropriety by the court system “gets bigger and bigger and more and more obvious as time goes on.”

Jerzy Shedlock can be reached at jerzy.shedlock@peninsulaclarion.com.

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