As noted above, U.S. District Court Judge John Sedwick today rejected ex-State Rep. Vic Kohring’s efforts to get relief based on the prosecution’s admitted failures to turn over before trial evidence favorable to the former Republican legislator from Wasilla.
It’s worth going over this 31-page ruling in bullet point style:
1. To Judge Sedwick, ex-VECO CEO Bill Allen was so obviously crooked as of the first half of 2006 that anybody around the legislature with a room temperature IQ could see it. On March 30, 2006, Kohring went to see the “notorious” Allen in the Baranof Hotel’s Suite 604, “the location which Kohring knew was the very center of Allen’s web of corruption in Juneau.”
2. The judge does not buy any argument that Vic Kohring was too clueless, too honest, or too powerless to commit the crimes for which he was convicted. As to the former lawmaker’s character, the court states that “While Kohring may not have been an inherently corrupt individual, at some point he became motivated to engage in political corruption.”
3. The judge believes that the FBI surveillance videotape showing Kohring’s meeting with Allen in Suite 604 on March 30, 2006 conclusively establishes Kohring’s guilt, notwithstanding any of the evidence the government wrongfully withheld. The judge focuses on Count 3 of the indictment of Kohring, which charged him with attempted extortion. Judge Sedwick looks at the videotape showing Kohring going over to Suite 604 to ask Allen to help with Kohring’s $17,000 credit card bill. The judge notes that this approach occurred during the legislature’s consideration of the proposed Petroleum Profits Tax (PPT) bill, oil-tax legislation Allen clearly was lobbying heavily. Add it all up, and the judge sees an obviously corrupt solicitation amounting to attempted extortion.
The court emphasizes the legal rule that a convicted defendant seeking relief based on the government’s failure to disclose evidence before trial must demonstrate a reasonable probability that the withheld evidence affected the jury’s verdict. (Although the judge would not use this term, this concept is similar to the cry of “No harm, no foul” you might hear in pick-up basketball.) The judge views the tape of the March 30 meeting as so incriminating that the prosecution’s failure to disclose did not make a difference in the outcome. “The court cannot bend or warp its understanding of the videotape into a shape that raises any reasonable probability that Kohring would not have been convicted on Count 3 by any jury which saw the videotape and contemplated what it saw in the context of Allen’s mission in Juneau and the inescapable inference from the evidence as a whole that Kohring understood and was willing to help with Allen’s corrupt mission.” The judge also points to Kohring’s recorded voice mail messages to Allen’s chief political lieutenant Rick Smith the next day detailing the legislator’s efforts on behalf of what he knew Allen and Smith wanted regarding oil-tax legislation. To Judge Sedwick, those recorded messages are the cherry on top of Vic Kohring’s guilty sundae.
4. In what Kohring’s lawyers must tonight be damning as unfair jiu-jitsu, the judge relies heavily on the fact that the jury acquitted the defendant of the charge of actual (not attempted) extortion to let stand the convictions on three other charges. Judge Sedwick reasons that the evidence wrongfully withheld by the prosecution could undermine confidence in convictions based on alleged cash payments by Allen to Kohring. As the judge notes, some of the previously undisclosed evidence shows that Allen sometimes told prosecutors that he made those cash payments as gifts or as expressions of pity and did not intend them as bribes. The judge also notes that those alleged cash payments would provide a basis to convict Kohring of extortion, but the jury acquitted Kohring of that charge.
The judge concludes, however, that the charge of attempted extortion in Count 3 was based on Kohring’s solicitation of help on his $17,000 credit card bill and not on any of the payments totaling up to $2,600 that Allen made to Kohring or the job at VECO worth $3,000 given to the lawmaker’s nephew. The judge rules that the March 30 videotape and the recorded messages of March 31 support the conviction for attempted extortion in Count 3. Judge Sedwick also announces that the same recorded evidence could provide the basis for the convictions for conspiracy to commit extortion and attempted extortion (Count 1) and bribery (Count 4).
Accordingly, confidence in those three convictions based on taped evidence cannot be shaken by any withheld evidence about Allen’s shaky memory, Allen’s evolving accounts of his past actions, or inconsistencies between Allen’s and Smith’s recollections of the circumstances or purposes of any payments to Kohring. Once again, the tapes trump, and undisputed evidence on the tapes can compensate for undisclosed evidence that was not taped.
Ironically, this means that the famous “Easter egg” shot of Allen giving cash to Kohring on March 30—the iconic image of the whole federal investigation into Alaska public corruption—is not even conduct for which Kohring was convicted.
5. Despite his denial of Kohring’s requests for dismissal of the charges, a new trial, or an evidentiary hearing, Judge Sedwick is letting the former legislator walk around free while his lawyers pursue an appeal to the Ninth Circuit Court of Appeals. “Although this court has not found a sufficient basis to order a new trial or dismissal of the indictment, it is certainly possible that the Circuit Court will see the matter differently.” Given that Kohring is neither a flight risk nor a danger to public safety, Judge Sedwick will let him remain on release pending appeal.