Why Wasn't the Tape Enough to Convict Vic Kohring?

Anchorage—

A commenter made the same point that I heard repeatedly Friday.

Why wasn’t the tape alone enough to convict Vic Kohring?

I deleted the comment because it included an obscenity (let’s keep it clean on this family site), but I want to answer the question.

The tape in question is a videotape the FBI made in the infamous Suite 604 of Juneau’s Baranof Hotel on March 30, 2006. It shows then-State Rep. Vic Kohring (R.-Wasilla) with long-time VECO CEO Bill Allen and his political lieutenant Rick Smith.

U.S. District Judge John Sedwick thought the tape alone was enough to convict Kohring, and a number of other Alaskans do as well. As the former legislator’s hometown newspaper editorialized about what is shown on the tape, “If that’s not a bribe, we need to redefine the term.”

You can look at the tape here—it’s less than 21 minutes long. It does make Vic Kohring look bad.

In the tape, the legislator is sitting in the hotel suite Allen and Smith are using as the
headquarters for their lobbying campaign on the oil tax legislation known as the Petroleum Profits Tax (PPT) bill. Kohring asks Allen and Smith for help paying off a delinquent $17,000 credit card bill. Near the tape’s end, Kohring takes some cash from Allen—ostensibly so that Kohring can put it in a gift to his daughter with Easter eggs—and then almost immediately asks how he, the legislator, can help the oil-services tycoon get the Legislature to pass Allen’s preferred version of the oil tax bill.

Judge Sedwick said back in August that in his analysis the only conduct the jury convicted Kohring of was the solicitation of Allen for help in paying off the lawmaker’s credit card bill while the Alaska Legislature was considering the oil tax legislation that Allen was lobbying so heavily on. After seeing the tape during the trial in 2007 and reviewing it again during the appeal, Judge Sedwick concluded that the tape alone was enough to convict Kohring of a corrupt solicitation.

The key sentence in Judge Sedwick’s decision was this: “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 [the count that charged him with attempted extortion] 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.”

Essentially, Judge Sedwick was conducting a thought experiment. He was saying that even if you imagine that Bill Allen did not testify, looking at that videotape in conjunction with other evidence presented by the prosecution left “Guilty” as the only verdict on the attempted extortion charge and two other related charges.

The Ninth Circuit Court of Appeals looked at it differently, however, in the decision issued Friday reversing Judge Sedwick and ordering a new trial for Kohring. The Court of Appeals announced that the jury might have convicted Kohring based on the several cash payments Allen made to the legislator and noted that Allen did in fact testify at the trial. Based on its analysis, the Court of Appeals declared that evidence about Allen’s views of the purposes and effect of those payments and evidence that could shed light on Allen’s motivations for testifying as he did both became highly relevant. Thus both kinds of evidence, said the Court of Appeals, should have been turned over to the defense by the prosecution before trial. Since that didn’t happen, the convictions were reversed and Kohring would get a new trial.

Evidence that was particularly important to be disclosed to the defense, according to the Court of Appeals, was evidence of Allen’s “past conduct” in terms of alleged sexual relations with minors. The defense was entitled to present to the jury evidence that Allen might be tempted to shade his testimony to help him escape prosecution for sexual offenses, said the Court of Appeals, as well as use that evidence to question him in ways that would suggest that Allen was a liar. As the Court of Appeals noted, “Evidence that Allen attempted to suborn perjurious testimony from one of the minors and attempted to make another unavailable for a trial would have been highly probative of his ‘character for truthfulness.’”

The Court of Appeals stated that “Indeed, if the evidence of Allen’s past conduct had been disclosed, there is a reasonable probability that the withheld evidence would have altered at least one juror’s assessment regarding Allen’s testimony against Kohring.” (Internal quotation marks are omitted.) The Court of Appeals is suggesting here that if the prosecution had provided the defense the evidence regarding Allen’s past conduct, the result would have been a hung jury instead of a conviction.

So for the Court of Appeals, the tape didn’t trump—the fear of prosecution over sexual offenses and the alleged attempted cover-ups did. But we may get a chance to see Judge Sedwick’s apparent thought experiment of “Imagine if Bill Allen never testified at Vic Kohring’s trial” become a reality. Now that the convictions have been overturned in what one defense attorney has labeled “the Vic Kohring Catastrophe,” the federal government needs to decide whether it will re-try the former lawmaker. In a trial of Kohring’s former colleague ex-State Rep. Bruce Weyhrauch (R.-Juneau) on corruption charges involving the oil tax debate in 2006—a trial set to start May 9—the prosecution has announced it does not plan to call Allen, now imprisoned on convictions for bribery, conspiracy, and tax violations. Will the Department of Justice take the same “No Bill on the stand” approach in a re-trial of Vic Kohring?

(Disclosure: I have had both personal and professional contacts with Bruce Weyhrauch, but I have never discussed this case with him and we have not had a conversation since his indictment in 2007.)