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, according to a story published by KYUK Public Media.


After hearing a statement from the victim and reviewing the case, Superior Court Judge Dwayne W. McConnell said that he was not happy with the deal Misner was getting.


“Having read this and thought about it, and understanding Mr. Smith, I’d want you to go away for 20 years,” McConnell said.


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. 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.


McConnell said that this sentence was in keeping with SB 91, a justice reform bill aimed at unburdening the state’s overtaxed prison system with changes in required sentencing. The judge made it clear that he has problems with the legislation.


Judge Dwayne W. McConnell openly criticized Senate Bill 91 at the sentencing for Daniel Misner in Bethel on Jan. 5. Photo: Katie Basile / KYUK


“SB 91 changed things a lot,” McConnell said. “It’s caused a fair amount of consternation by people that realize what the Legislature did.”


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,” Gray said. “Can that sentence be justified? I think so.”


The DA said that he didn’t know about statements made by the witnesses, who saw the shooting and contended that there was intent to kill. One of the witnesses said he contacted police to make a statement last year, but they never followed up. The Bethel Police Department confirmed that it did take some kind of statement in a social media release, but no statement showed up in any documents to which KYUK had access.


“Had I known about the Peltolas in advance, would it have made a difference? I don’t know,” Gray said.


Gray said he never got to ask key questions to those witnesses, such as what angle they saw Misner shooting from, which he said 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.


“Well if that was a gun and I were sitting in her position, I would think it would be pointed at me, yes sir,” McConnell said.


While defending a plea deal, District Attorney Michael Gray (far right), points an imaginary gun over the head of Daniel Misner. Photo: Katie Basile / KYUK


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 said 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,” Smith said. “My hat was evidence. Why was that not presented to the DA’s office?”


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 claimed that it submitted the hat to his office.


This time it was 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 near the scene that might have helped clear up the question. Gray said that they had not.


The case of 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.


Classification: The description of Bethel PD’s media release has been lengthened to better explain the nature of the statement. 


Correction: In the original version of this story that appeared on KYUK Public Media’s website, an attribution was incorrectly made to Judge McConnell. This correction has been made.