More Lessons and Nuggets from Pete Kott's Motion to Dismiss

Anchorage--

My hike yesterday up a mountain in Pete Kott’s legislative district delayed this posting but hopefully improved its quality. As announced last Friday, the new attorney for that convicted, imprisoned, but at least temporarily released former Republican State Representative from Eagle River has filed a motion to get his indictment dismissed and thereby end his case.

The pleading is a well-prepared catalogue of alleged discovery violations by the prosecutors in the federal public corruption trial of the former Speaker of the Alaska State House that ended in September of 2007 with guilty verdicts on three counts. Two key witnesses against Kott at the trial were long-time VECO CEO Bill Allen and his political lieutenant, VECO Vice President Rick Smith.

The filing is primarily based on more than 4,000 pages of documents that the Department of Justice gave access to the defense after the trial. You can read the filing at http://alaskadispatch.com/images/stories/files/kott%20motion%20to%20dismiss.pdf on the Internet.

Here are my additional thoughts on that pleading:

1. Unless the Department of Justice can somehow rebut the allegations of prosecutorial misconduct in the Kott trial, the government’s case is in big trouble.

Recall that in our system of justice prosecutors are held to special legal and ethical obligations that don’t apply to other lawyers. One of those obligations is the responsibility to turn over certain evidence to the defense before trial. Kott’s filing lays out a number of instances where documents provided to the defense post-trial show statements by witnesses that appear to cast doubt on—or even contradict—evidence and arguments presented at trial by the prosecution. One example offered in the pleading involves a payment by Allen of $5,000 to Kott that helped the former legislator buy a truck. While the government ridiculed at trial Kott’s assertion that the $5,000 payment was a loan from Allen and not a bribe, the prosecution never turned over before the trial a federal investigator’s report from an interview of Allen in which Allen allegedly said that the oil-services tycoon considered that payment a loan.

It will be very interesting to see how the government’s new lawyers address these allegations. As is common with pleadings of 58 pages (59 if you count the signature page), some of the allegations are stronger than others. (Kott’s attorney overplays, for example, the importance of allegedly suppressed evidence that the former 14-year legislator would have voted on oil taxes the way Allen wanted even in the absence of bribes, because legislators can be helpful to people interested in legislative outcomes in ways beyond their vote. Examples include intelligence-gathering and lobbying of other legislators.) Even given a little overreaching by the defense, the oft-stated axiom that prosecutors are supposed to turn square corners means that the Department of Justice attorneys will be sweating to come up with good responses as to why so many documents that look like they should have been turned over were not provided before the trial.

Just because there appear to have been some discovery violations, however, does not automatically mean that U.S. District Court Judge John Sedwick will dismiss the indictment and end the case against Kott. He may order a retrial—the more common remedy for discovery violations—and he may even allow the defense an opportunity to get more discovery. If the court doesn’t dismiss the case, the defense’s alternative request is for Judge Sedwick to order additional discovery, including depositions of some of the government’s witnesses. This mess is likely to grow.

It must be said that those faced with a particular mess include Nicholas Marsh, a trial attorney from the Washington, D.C.-based Public Integrity Section who served as the Department of Justice’s go-to guy in Alaska in the federal “POLAR PEN” probe into public corruption on the Last Frontier. In a bit caught by Rich Mauer of the Anchorage Daily News, the pleading shows that the investigation has been running since July of 2003, and Marsh served as a prosecutor in three of the trials produced by that probe. Marsh was on the in-court prosecution team against Kott as well against ex-State Rep. Tom Anderson (R.-Anchorage) and ex-U.S. Sen. Ted Stevens (R.-Alaska). Along with five other government attorneys, Marsh is the subject of two investigations into discovery violations in the collapsed prosecution of Ted Stevens. Marsh’s attorneys cannot be happy with the disclosure of Marsh’s e-mail to his supervisors that suggests what some will say represents insufficient attention to Marsh’s discovery obligations during witness coaching sessions with Allen. Memo to everybody: Even though some people tend to treat e-mail as the equivalent of a telephone conversation that disappears into the ether, electronic mail is instead a permanent record that lives forever.

2. Witnesses in criminal trials often have warts, but Bill Allen's warts are uglier than most.

The dominant feeling of jurors in criminal trials often is a sense of shock that there could be people who really lived the way the lay witnesses in criminal cases often do. As I told one friend, those witnesses frequently do not resemble the folks at his table at Rotary meetings. One extreme example came when I was a prosecutor: I had one witness in a sexual abuse of a minor case who some years previously had been drinking with two men in a house when one man shot the other to death. She just kept drinking with the killer—in the same room with the dead man’s body—for hours until the authorities showed up.

So as a former prosecutor of sex-crime cases I’ve seen some pretty bad stuff, and I’m also used to witnesses with dents and scratches on them.

Having said all that, the new Motion to Dismiss filed by ex-State Rep. Pete Kott’s new attorney alleges that the federal government apparently sat on—and even discouraged the Anchorage Police Department from pursuing—evidence of some unusually sordid crimes committed by Bill Allen. The allegations are gross—maybe even beyond gross. They include allegations that while in his 60s, the oil-services magnate had sex with as many as five underage girls. He allegedly even went to the mother of a 15-year-old girl and asked if he could date her daughter; the mother allegedly agreed and Allen supposedly then began taking care of the mother financially on a long-term basis.

Two points about these allegations, all of which Allen apparently denies. The first is that the charges make him look so evil and depraved that even their airing will tend to hurt him in the eyes of future judges and jurors. This is not good news for a man facing sentencing next month before the same judge who is reading all these allegations in Kott’s new pleading.

The other point is a question that is probably in the minds of a number of defense attorneys whose clients face prosecution heavily based on Bill Allen’s testimony: When did the federal government first talk about underage sex with Bill Allen, and who brought up the subject?

3. This story started out looking like it was all-American and particularly all-Alaskan, but now it has elements of a Russian novel as well as multiple Greek tragedies.