Kott Catch-Up: Judge's Decision on Evidence Not Turned Over Is Followed Quickly By Prosecutors Turning Over Yet More Evidence

Washington, D.C.—



Now that I’m off vacation and finally back in blogging mode, I will address three things:



· the judge’s decision to uphold the verdicts against ex-State Rep. Pete Kott (R.-Eagle River) in the face of prosecutors’ admission that the government withheld evidence it should have disclosed to the defense;



· the racy nature of some of that withheld evidence, particularly the allegations of sexual abuse against key prosecution witness Bill Allen; and



· the way the judge handled the prosecution’s curious decision the day after the court’s order came down to turn over to the defense even more previously undisclosed materials.



The Judge’s Ruling: The Jury Verdicts Stand



The nickel version of Judge John Sedwick’s order is that while the prosecution should have turned over additional evidence before Kott’s trial in 2007, the jury would have convicted the former legislator even if the defense had gotten that evidence on a timely basis.



Let’s review the facts and the law that produces this result. In criminal cases, the law obligates prosecutors to turn over to the defense certain evidence. That evidence that must be disclosed to the defense—“discovered,” in legal lingo—includes evidence that is material to the guilt of the defendant and is in the possession of the government.



Following the collapse of the prosecution of U.S. Ted Stevens last year following revelations of failures in discovery, a new team of prosecutors replaced the former group of government lawyers overseeing the long-running federal probe into Alaska public corruption. These new prosecutors reviewed the evidence against the defendants already convicted and found some things that should have been disclosed to both ex-Rep. Kott and ex-State Rep. Vic Kohring (R.-Wasilla). Kott and Kohring were still in prison following jury verdicts against them in 2007, and both were appealing their convictions to the Ninth Circuit of Appeals, the federal appellate court for the western portion of the U.S.



When the new prosecutors found this undisclosed evidence, they took what Judge Sedwick has called the “extraordinary step” of asking the case to be sent back—“remanded”—from the Ninth Circuit back to the District Court in Anchorage, where Judge Sedwick sits as the trial judge who presided over the former legislators’ trials. The government also made the highly unusual request that Kott and Kohring be released while Judge Sedwick sorted out the extent and effect of the failures in discovery.



Kott’s case went first in front of Judge Sedwick last year, as Kohring has got a delay because he got new lawyers while he sues his former counsel for injuring him in a car accident. (As I keep saying, I can’t make up some of these twists.)



The new team of prosecutors reviewed the government’s files and turned over additional evidence that the court says provided materials that allowed attacks on the credibility of former VECO CEO Bill Allen and his political lieutenant Rick Smith. Those additional documents provided last year also included some statements by the two witnesses that the court says were inconsistent with their trial testimony.


The government took the position that despite its failure to disclose evidence, such evidence wasn’t truly material in that its disclosure wouldn’t have changed the result of the trial, so Kott suffered no prejudice from the non-disclosure.


The court reviewed the undisclosed evidence carefully because of its subject. Allen and Smith were the admitted bribers and were testifying for the prosecution against the people they admitted bribing in hopes that their cooperation would reduce their own sentences. Judge Sedwick quotes extensively from an appellate case that describes criminal informants such as the two former VECO executives as inherently untrustworthy people whom prosecutors and judges must watch carefully to insure that those witnesses don’t falsely accuse the innocent and manufacture evidence to help themselves. The government’s lawyers bear a special responsibility to guard against the subversion of the system by the “treachery” and “perfidy” of the shady informants desperate to try to twist their way out of the big trouble they’re in.


The court walks through each category of evidence and rejects the defense’s arguments. As to the prior inconsistent statements of Allen and Smith that were not disclosed pre-trial, the judge relied heavily on the extensive audio-visual recordings that federal agents made from phone calls and from the infamous Suite 604 at the Baranof Hotel. Judge Sedwick said that those tapes were so damning to Kott that the jury would have convicted him even if the defense could have thrown into the face of Allen and Smith the prior inconsistent statements the pair had made to federal investigators. The feds intercepted more than 17,000 conversations in the course of this investigation, and those tapes of crimes happening in real time were very powerful with juries—and with Judge Sedwick.


The court also turned away the defense’s claims regarding the withheld evidence of Smith’s substantial personal problems. Judge Sedwick notes again that Kott didn’t need the federal investigators’ evidence that the former VECO VP was an alcoholic as the former legislator was “among Smith’s drinking partners.” The court did say that the prosecution should have disclosed evidence that Smith was suicidal in the months before trial, but concluded that this failure was essentially harmless error in light of the lethal nature of the tapes and the testimony of Allen and Kott himself.



The Judge Has the Toughest Time Getting Past the Potential Attacks to Allen’s Credibility Contained in the Withheld Evidence Regarding the Allegations of Allen’s Sex Crimes with Minors, But the Judge Does So



Judge Sedwick spent about a third of his 20-page order examining the question of whether the case against Kott because the prosecution withheld information about Allen’s alleged sex crimes on the theory that the defense could have shown the ex-VECO CEO’s motivation to tailor his testimony to the government lawyers’ desires to avoid prosecution for those offenses involving minors. The court started with noting that the Anchorage police had files on allegations of sexual exploitation of minors that exposed Allen to serious federal and state charges. This paragraph is such that it’s worth quoting almost in full (footnotes are omitted):



Anchorage Police Department (“APD”) files reflecting detailed information implicating Allen in the sexual exploitation of minors and efforts to conceal that behavior were released by the government to Kott pursuant to the Ninth Circuit’s order. The documents before this court confirm that there was an extensive investigation into these matters at least as early 2004. The APD documents establish, among other things, that Allen engaged in solicitation of one individual, “VICTIM 5," and sexual exploitation of “CHILD VICTIM 1" in approximately 1997. Both Assistant United States Attorney Frank Russo and FBI Agent John Eckstein were present at the interviews in which this information was revealed by VICTIM 5. These documents also establish that Allen paid for VICTIM 5's drug rehabilitation and “wrote it off on his taxes.”


Although Judge Sedwick is clearly bothered by both how bad this evidence makes Allen look as a human being and how bad the withholding of it makes the government’s previous lawyers look as prosecutors, the court ultimately decides that the defense wouldn’t have been able to introduce the evidence at Kott’s trial. The judge comes to this conclusion for multiple reasons. First, the “sordid and reprehensible” conduct alleged is so awful that it is too powerful, and the judge said that this evidence would be excluded because otherwise it would overwhelm the jury and shift the focus away from determining whether Kott was guilty of crimes involving public corruption. The court also cited Allen’s significant exposure to prison for bribery to say that the defense already had room to argue that the long-time powerbroker had motivation to shade his testimony to aid the prosecution even without being able to point to the inflammatory allegations of sexual abuse.


Judge Sedwick was even able to reject the defense’s argument based on the role of Allen and his attorney in soliciting a false affidavit from “CHILD VICTIM 1” that she had never had sex with the long-time VECO CEO. The court reasoned that under the rules of evidence Allen would just deny the allegation without fear of having the jury hear from “CHILD VICTIM 1,” which meant that such a line of inquiry would not significantly aid Kott. Once again, the court essentially ruled “No harm, no foul.”


The Prosecution’s Curious Handling of Discovery the Day After the Court’s Order, and the Court’s Response


The day after the prosecution won a victory in the court order denying the defense’s motion for relief based on discovery violations, the prosecution e-mailed defense counsel more than 100 pages of additional documents that had not been discovered. Judge Sedwick was clearly disturbed by this course of events, and now dozens of handwritten interview notes have been placed in the record as the case goes back to Ninth Circuit on appeal. In a continuation of the unusual events in this case, Kott remains free while his appeal is being decided.