The Department of Justice has filed its opposition to Vic Kohring’s motion seeking a dismissal of his convictions or—short of that—a new trial. The government’s message can be boiled down to four points:
1. We screwed up. The government admits “regrettable missteps” in the original prosecution team’s sharing of evidence with the defense before the trial of the former Alaska legislator.
2. We didn’t mean to mess up on the discovery. The government says it doesn’t seek to make “excuses” while asserting that “There are many reasons for these errors” in providing evidence to the defense before the trial. The prosecution's filing does not discuss or elaborate on those "many reasons." Knowing that a belief by the court that the trial prosecutors showed bad faith in the handling of discovery makes it particularly likely that the convictions will go away, however, the Department of Justice wants the court to know that those “many reasons” do not include any malice on the part of the original government lawyers. Accordingly, the Department of Justice stresses that Kohring’s lawyers are long on “overheated rhetoric” alleging that the government’s original lawyers intentionally withheld evidence but have not pointed to any evidence of “any plot to violate his rights.”
3. Even though we made some “mistakes,” we have sure cleaned up our act now. While acknowledging the “missteps” made in this case, the government insists that the failures have resulted in reforms. “In an effort to avoid these problems in the future, the Department has taken significant steps to establish clear guidelines and better training” for all federal prosecutors in the handling of discovery. Specifically, the reforms triggered by last year’s high-profile collapse of the prosecution of former U.S. Sen. Ted Stevens include improved training and the promulgation of more discovery policies within the Department. The government wants the court to believe that there is no need to deter future misconduct by dismissing this case, because the Department of Justice’s post-Stevens reforms will prevent that misconduct.
4. Most importantly, the “mistakes” in the provision of discovery do not mean that Vic Kohring’s case should be dismissed, because the surveillance tapes of his interactions with Bill Allen prove that the former legislator is a criminal irrespective of any screw-ups in providing discovery. Once again, the government’s twin arguments are “The tapes trump” and “No harm, no foul.” The government asserts that the evidence against Kohring—particularly on the FBI’s tapes—was so strong that the ex-Republican lawmaker from Wasilla would have been convicted even if the defense had received all the materials that should have been turned over. The government particularly focuses on the meeting where Rep. Kohring asked former VECO CEO Bill Allen for help regarding his $17,000 credit card bill and ended up by getting cash from the powerbroker, ostensibly for an Easter gift for the legislator’s stepdaughter. This incident occurred in front of VECO VP Rick Smith in the infamous VECO-rented Suite 604 of the Baranof Hotel during the 2006 legislative session, and was all caught on videotape made by an FBI bug. The government points out that the most Kohring should get is a new trial, but with all its other problems in the “POLAR PEN” probe into Alaska public corruption the prosecution particularly does not want to re-try this case. The government’s position is summarized thusly: “Kohring was a corrupt public official who betrayed the public trust in exchange for cash handed to him by businessmen seeking to buy his official acts, exchanges captured on tape for the jury.”
The defense gets the final word on this motion before U.S. District Judge John Sedwick will make his decision. The judge has already rejected the similar arguments made by former State Rep. Pete Kott (R.-Eagle River).