Judge sides with family in hunting case

State trooper chastised for bullying, lying about hunting violation

Posted: Tuesday, July 01, 2003

ANCHORAGE - A state judge has issued a reprimand for state troopers' handling of a case in which members of a Russian Old Believer family were tried and acquitted of illegally shooting a bull moose.

A state Fish and Wildlife Protection officer bullied the family when searching their home and then lied about his evidence when swearing out his criminal complaint, District Judge M. Francis Neville of Homer said after a three-day trial ended June 16.

She said troopers also went far beyond the authority of their search warrant when searching the house at the head of Kachemak Bay.

"The improper actions of the law enforcement officers in this case are of sufficient concern that the court believes a written decision should be issued to document the irregularities," Neville wrote in her seven-page decision.

The case centered on allegations that an 11-year-old boy shot a moose whose antlers were smaller than the legal limit, then hid the meat and altered the antlers with the help of his older brother and father.

Troopers are investigating the law enforcement issues raised by the judge, said Maj. Jim Cockrell, acting director of the state's Fish and Wildlife Protection Division.

"Absolutely this is a concern to us," Cockrell said. "Our foundation is the public trust and integrity."

Richard Morris, a University of Oregon cultural anthropologist who testified about Old Believer beliefs for the defense, said after the trial that the Russians - who first settled in Alaska as a group in the 1960s - often say they feel police try to push them around.

"I know Old Believers have a sense that they are being victimized, that troopers are taking advantage of their authority," Morris said.

Most of Neville's complaints were aimed at Fish and Wildlife Protection officer Todd VanLiere, 33, a seven-year troopers veteran. VanLiere will continue to work out of the Homer post as the investigation proceeds, Cockrell said.

Troopers had charged Frank Martushev, who lives outside the village of Kachemak Selo, with the misdemeanor of possessing an illegally taken moose. His older son, Zahary, was similarly charged.

Alex Martushev, who pulled the trigger and was 11 during the September 2001 hunting season, was charged with lesser violations.

Villagers at the head of the bay have relatively easy access to the rich hunting grounds of the Fox River Valley, where the 2001 hunt took place.

The criminal charges, filed under oath by VanLiere, said that Frank Martushev had told him his son Alex had harvested a sublegal moose and that the antlers were cut with a chain saw to alter their appearance. During cross-examination in the trial, however, VanLiere said Martushev had never told him those things.

"While Trooper VanLiere may not have intended to mislead the court, it is clear that he did not make an honest and good-faith effort to review the facts before drafting, swearing to and filing the complaint," Neville wrote. She said troopers never questioned the two boys about the case.

She also noted contradictions between VanLiere's trial testimony and an audiotape made of the search of the Martushev house. She said the tape showed the Martushev family being "generally cooperative" and VanLiere "unnecessarily confrontational," for instance "loudly" threatening the father with felony obstruction of justice when a young daughter tried to retrieve her disposable camera from the troopers.

She said troopers confiscated photo albums and weapons, though the search warrant authorized only seizure of meat, butchering tools and bloodstained clothing used for field dressing.

Neville said this was a serious violation of the constitutional right against unreasonable searches and seizures.

"This court is appalled that four troopers took part in this extensive search of the Martushev home without ever looking at the warrant to determine the scope of their authority," Neville wrote.

Frank and Zahary Martushev were tried by a jury. Alex, with lesser charges, was tried simultaneously by the judge this month. All were acquitted.

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