The Ninth Circuit Court of Appeals today overturned the conviction of former State Rep. Vic Kohring (R.-Wasilla) and granted him a new trial.
The appellate panel ruled that the prosecution’s failure to disclose certain information to the defense before trial violated Kohring’s rights. The 33-page decision focuses on evidence in two areas of evidence not provided to the defense before the trial:
(1) the investigation into Bill Allen’s alleged sexual misconduct with minors, particularly his alleged attempt to suborn perjury from one of those underaged girls to hide his crimes; and
(2) the poor memory and confusion exhibited by former VECO CEO Allen and his one-time political lieutenant Rick Smith about the amounts of cash paid to Kohring.
The opinion also notes that the prosecution also failed to disclose evidence that Allen told federal agents that he had never asked Kohring to do anything in exchange for the cash the VECO tycoon paid the needy lawmaker.
The panel was unanimous in vacating the conviction, but split 2-1 on what should happen now. The majority stuck with the normal rule that the remedy for prosecutors’ violations of its obligations to disclose (“discover”) evidence is to give the defendant a new trial.
A sharply worded dissent argued, however, that the court should have gone further and thrown out the case altogether by dismissing the indictment against Kohring.
Dissenting Circuit Judge Betty Fletcher characterized the prosecution’s conduct in the discovery failures as “flagrant, willful bad-faith misbehavior” and “an affront to the integrity of our system of justice.” The dissent said that “The prosecution failed to disclose thousands of pages of material documents—including FBI reports, memoranda, and police reports—until after Kohring’s conviction.” (Emphasis in original.) Calling the government’s current attitude “unrepentant,” the dissent urged a dismissal of the indictment both to deter future prosecution misconduct and as a way “to release Kohring from further anguish and uncertainty.”
In an unusual footnote to the majority opinion, the majority’s two judges responded to the dissent’s argument based on the defendant’s “anguish and uncertainty” by observing that relying on such a basis to dismiss an indictment would be unprecedented. Although it overturned District Judge John Sedwick’s decision upholding the former lawmaker’s conviction, the majority also noted the trial judge’s analysis that the suppressed evidence would not have affected the verdict even if the jury had heard it and also cited the position of public trust Kohring held.
The decision is marred by some errors. The most serious is the repeated references to Kohring’s trial testimony, which does not exist as the former legislator never took the witness stand. The court’s references to Kohring’s trial testimony must be to his interview with the FBI.
The decision also raises the question of whether the federal government will choose to re-try Kohring, given the substantial problems it faces in putting Bill Allen and Rick Smith on the witness stand now and the generally bad odor the federal probe into public corruption has gotten in the last two years. (The government could theoretically appeal this decision to the U.S. Supreme Court, but it is highly unlikely that the Supreme Court would take the case.) As Mark Regan has pointed out, however, the government’s decision to go ahead with the trial of former Rep. Bruce Weyhrauch (R.-Juneau)—a case that appears to a number of observers to be much weaker than the case against Kohring—suggests that the Department of Justice might proceed with a new trial against Kohring. (Disclosure: As I have repeatedly said, I have known Bruce Weyhrauch for years, but he and I have never discussed this case.)
Former State Rep. Pete Kott (R.-Eagle River) has also got to be smiling today, as this decision in Kohring’s case bodes well for the appeal of former Speaker of the Alaska House of Representatives. Like Kohring, Kott was also convicted of several charges arising out of the federal probe into Alaska public corruption, and—like Kohring—Kott was released from prison while the courts sorted out the issues flowing out of the disclosures of important evidence not turned over to the defense.