Pete Kott and Vic Kohring get to stay out of prison for the time being, but they still need to sweat getting sent back.
The prosecution and the defense announced in joint filings yesterday that they weren’t able to agree on what to do about the Department of Justice’s admitted failures to provide evidence before the trials of the two convicted state legislators. Given that what the defense would have wanted as a remedy for these discovery violations was the government to agree to drop the cases entirely, the lack of an agreement means that the Department of Justice has decided to keep fighting.
So former State Reps. Kott (R.-Eagle River) and Kohring (R.-Wasilla) get to continue to walk the streets, and their fates are now squarely in the hands of U.S. District Court Judge John Sedwick.
Judge Sedwick is in a bind, and you get the feeling he looks around in each case and sees on both sides a lot of conduct he doesn’t like from people who should have known better. Despite being veteran lawmakers, Kott and Kohring looked sleazy on numerous FBI tapes played in his courtroom during their trials. Despite being a long-time oil-services tycoon and Republican campaign fund-raising powerhouse, star prosecution witness Bill Allen is an admitted serial briber of state legislators.
It's of course common (and desirable) for the government to limit its prosecutions to defendants who seem guilty, and anybody who understands criminal law knows that the witnesses in those cases are often not model citizens.
Our system holds prosecutors to a higher standard, however, so what’s so odd in these two cases is what Judge Sedwick has called the government’s “admitted, and remarkable, failure to timely provide all of the discovery required….” This failure of the government to turn over evidence was the same problem that tubed the prosecution of U.S. Sen. Ted Stevens—in fact, the uncovering of the discovery violations in that case led the Attorney General to throw in the towel and ask the judge to dismiss it. With the government still fighting on in the Kott and Kohring cases, the Department of Justice presumably decided that the evidence not disclosed on a timely basis to the defense in the trials against those legislators must not be so damning that giving up was required.
In terms of what Judge Sedwick will do, a lot will depend on what the government did not disclose that it should have. We should get our chance to find out soon. In each case, the government and the defense jointly asked the court to require the defense to file no later than September 30 any motions based on the evidence newly turned over by the prosecution. The defense will need to set out the basis for its motions, and in doing so will likely reveal the juiciest stuff previously undisclosed. The proposed schedule would have the prosecution respond no later than October 30, and the defense would reply to that prosecution response no later than November 13. Hearings on the motions would presumably come in November or December. Once again, stay tuned.
Update--I clarified and cleaned up the language in this post to remove ambiguity.