Tuesday, November 17, 2009

Judge Sedwick Raises Concerns about Prosecutorial Misconduct

Anchorage—

I’m gunning to get ready for my class session on Alaska public corruption tomorrow. Accordingly, I’ll have only a few comments about this morning’s hearing on former State Rep. Pete Kott’s motion to get his convictions thrown out based on the former prosecutors’ failure to disclose evidence favorable to the defense:

1. The judge is clearly bothered about the federal government’s discovery failures, particularly regarding evidence that tends to undermine the credibility of key prosecution witness Bill Allen, former long-time CEO of VECO. Judge John Sedwick is disturbed that the defense did not get before the trial documents showing statements to FBI agents that would have allowed a more vigorous cross-examination of the multimillionaire confessed briber. (In comment that drew smiles in the courtroom, the judge said that the newly released documents show less concerns about ex-VECO Vice President Rick Smith, given that the major concerns about Smith had to do with him being a heavy drinker with a bad memory, “and I’m sure that Mr. Kott knew that as well as anybody in the courtroom.”

2. New defense attorney Sheryl Gordon McCloud is doing everything she can to put the government on the griddle over the failures to disclose evidence. She referred to the “4700 pages of suppressed documents” that the government provided the defense this year, more than 18 months after Kott was convicted and a year or so after he began his six-year prison term. (Kott got freed this summer while the judge sorts out the new allegations of prosecutorial misconduct based on the discovery problems.) She repeatedly claimed that the former government lawyers showed bad faith in withholding the documents, and argued that such deliberate misconduct justified a dismissal of the case with prejudice.

If the judge won’t throw out the case right now, McCloud asked for an evidentiary hearing where she can put various prosecutors—and presumably FBI agents—under oath to ask them about why they didn’t turn over various documents. With two investigations looking into why the Department of Justice had discovery failures in the collapsed prosecution of former U.S. Sen. Ted Stevens, such a proceeding would be the equivalent of a barbed-wire enema for the government.

3. The government wants to get the focus off Bill Allen’s trial testimony and get the judge looking more on the FBI’s surveillance tapes and Pete Kott’s pre-trial statements to FBI agents that were disclosed. After newly selected prosecutor James Trusty told the court that the 56 tapes played at the trial were the “linchpin” of the case, defense attorney McCloud told reporters outside the courtroom that the trial testimony of Allen and Smith was the linchpin. Trusty told the judge that Kott was convicted based on “overwhelming evidence” presented to the jury, and suggested that the prosecution’s failure to disclose certain evidence represented not bad faith but rather “errors” that looked imprudent in hindsight.

4. Judge Sedwick announced at the end of the hearing that the defense’s motion had posed “a very complicated problem” and that he would take his time in deciding it. Based on his comments this morning, he seems to be wrestling with the alternatives of ordering a re-trial for Kott or killing the case outright.

5. I’ll think about this more later and may have more. In the meantime, for more coverage head to Alaska Dispatch (which had three staff members in the courtroom), the Anchorage Daily News, and Steve Aufrecht’s blog at
http://whatdoino-steve.blogspot.com/ on the Internet.

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