The plea deal agreed upon at Daniel Misner's January 5th sentencing minimizes his time served in prison.
KYUK, Bethel: On Thursday, the Bethel Superior Court concluded the case of Daniel Misner, a Bethel man who fired a gun at Bethel resident Charlie Smith last year on a public street.
After hearing a statement from the victim and reviewing the case, Judge Dwayne W. McConnell said that he was not happy with the deal Daniel Misner was getting.
"Having read this and thought about it, and understanding Mr. Smith, I’d want you to go away for twenty years," said McConnell.
The judge said that reforms to Alaska's criminal justice system by Senate Bill 91 left him no choice but to sentence Misner to time served and probation, though he felt that Senate Bill 91 was just one of several problems with the case.
Misner has already been in jail for less than a year, which will be all the time he'll serve,
although he will have to spend the next five years on probation.
Judge McConnell said that this sentence was in keeping with Senate Bill 91, a justice reform bill aimed at unburdening the state's over-taxed prison system with changes in required sentencing. The judge made it clear that he has problems with the legislation.
“SB 91 changed things a lot. It’s caused a fair amount of consternation by people that realize what the legislature did," said McConnell.
He went on to say that SB 91 was enacted purely to save the state money, though it has been championed by supporters as a measure to reduce the disparities in a system tilted against both the disadvantaged and minorities.
Regardless of SB 91, there have been significant problems with this case, one of which were accounts of the incident by two eyewitnesses that were not considered until after the deal was made. District Attorney Michael Gray said that had this information been available as evidence, it could have led to a different deal.
“Could another sentence have been justified? Sure. Can that sentence be justified? I think so," said Gray.
The DA says that he didn’t know about statements made by Mr. Gene and Mrs. Eirma Peltola, who saw the shooting and contended that there was intent to kill. Peltola said that he had contacted police to make a statement last year, but they never followed up. The Bethel Police Department confirmed this in a social media release.
“Had I known about the Peltolas in advance, would it have made a difference? I don’t know,” said Gray.
Gray says he never got to ask key questions to those witnesses, such as what angle they saw Misner shooting from, which he says can make all the difference. During the proceedings, Gray stood up before the court and pointed an imaginary gun towards a photographer in the room. He asked the judge to tell him where the gun was pointing.
“We’ll if that was a gun and I were sitting in her position, I would think it would be pointed at me, yes sir," said McConnell.
The DA, then told the judge he was actually aiming at a clock next to the photographer, demonstrating a different intent.
Charlie Smith, the victim, who connected with the court by phone, was more disturbed about another piece of evidence that the DA says he never saw: Smith's hat, with a hole from a bullet that Smith says touched his skin.
“I hear those six bullets pass right by me and I swear to God, I tell you the truth, the third bullet nicked the top of my head. My hat was evidence. Why was that not presented to the DA’s office?” said Smith.
Though Smith brought up the hat twice during the proceedings, Gray didn’t answer his question.
Following the DA's announcement of the deal, the Bethel Police Department posted a picture of the hat in response to the DA’s comments. The pictures showed the hat in police possession, and the department claims that they submitted it to his office.
This time it was Judge McConnell’s turn to step in, saying that he wasn’t sure the hat on its own was enough for a conviction. But McConnell also asked if the DA's office looked for bullet holes in buildings nearby the scene that might have helped clear up the question. Gray said that they had not.
The case of Daniel Misner leaves few satisfied, and members of the Bethel judicial system pointing fingers at one another, budget cuts, increasing caseloads, and changes in state law under SB 91. It also puts a man who originally faced attempted murder charges back on the street with five years of probation.