New Judge, New Trial Dates Coming Up, but Still No Guarantee of Trials for Kott and Kohring

Anchorage--

I'm engaged in pressing personal business that will limit my blogging for a few more days. Today's news is that the move of U.S. District Judge John Sedwick to senior status (semi-retirement) later this year has resulted in the transfer of the cases of former State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla) to Judge Ralph Beistline.

None of the recent developments have shaken my belief that neither of those former lawmakers will be retried on the federal corruption charges which put them in prison before discovery problems produced the reversals of their convictions.

I'm been lax lately on the posting. To compensate, here's a copy of my column in this month's edition of the Alaska Bar Rag, the quarterly publication for the Last Frontier's lawyers:

What Does the Federal Probe into Public Corruption Mean for Alaska?

by Cliff Groh

(First of several installments)

Born in the Territory of Alaska in 1954, I grew up in a skinny Anchorage media environment in which there was no live TV until the first moon walk occurred when I was 15.

Reading newspapers and magazines as a boy in the 1960s, I noticed occasional stories of public corruption—of police on the take, government officials who accepted bribes—in states like Massachusetts, New Jersey, and Illinois. I really didn’t see that in Alaska, so I asked my father about it. He was a former President of the Alaska Bar Association who had served as both a prosecutor and criminal defense attorney; he had also been on the City Council, the Borough Assembly, and the School Board.

My father said “Well, son, there’s not enough money to steal.”

Back in the mid-1960s, Alaska was a young state with a thin economy. Although people on the Last Frontier felt poor, there was still some of that aura of idealism and optimism that remained from the excitement of achieving statehood in the late 1950s.

The announcement in 1968 of the discovery of a super-giant oilfield at Prudhoe Bay on the North Slope brought billions and billions of dollars to Alaska, both to the private economy in paychecks and to the state government’s coffers in taxes and royalties on oil development.

The long-running federal investigation into Alaska public corruption has underscored some of the changes seen in the 49th State, and that probe has also caused some. Most of the cases produced by the federal investigation involved alleged efforts to influence public officials regarding the state’s taxes on oil development.

This probe electrified Alaskans. Think back to the wild days between the late summer of 2006 and the fall of 2008. In those 27 months, 11 people got charged with federal felonies. Those 11 included:

Ø legendary U.S. Senator Ted Stevens (R.-Alaska);
Ø five state legislators (some of whom had left office)—State Sen. John Cowdery (R.-Anchorage) and State Reps. Tom Anderson (R.-Anchorage), Bruce Weyhrauch (R.-Juneau), Pete Kott (R.-Eagle River and a former Speaker of the Alaska House of Representatives), and Vic Kohring (R.-Wasilla);
Ø Jim Clark, the chief of staff to former Alaska Governor Frank Murkowski;
Ø Bill Allen, a political kingmaker who was the long-time CEO of the multinational oil-services giant VECO, a billion-dollar company;
Ø Bill Weimar, the multimillionaire former head of the private corrections corporation Allvest;
Ø Rick Smith, a VECO vice president who served as Allen’s chief political lieutenant; and
Ø Bill Bobrick, a prominent lobbyist working on municipal issues in the Municipality of Anchorage.

At the end of 2008, 10 of those 11 people had pleaded guilty or heard juries deliver guilty verdicts on all or almost all counts they faced. FBI surveillance tapes—many made at the VECO-rented Suite 604 in Juneau’s Baranof Hotel—greatly aided the prosecutors in their cases at trial. Alaskans were mesmerized by iconic images of Allen telling Kott “I own your ass” and Allen handing cash to Kohring, and many citizens were stunned by how little it seemed to take to get some public officials to sell their offices.

Long accustomed to serving either as a sugar daddy or a political punching bag on the Last Frontier, between late 2006 and late 2008 the feds seemed to be on a roll straightening out a mess in Alaska.

Back in 2008, those 11 defendants seemed very likely to increase by a lot. Multiple sources told Alaska journalist Bill McAllister that 26 people would be indicted in the federal investigation into public corruption in the state. Speculation on potential additional defendants centered on U.S. Rep. Don Young (R.-Alaska) (identified in media reports as being under investigation for alleged campaign fund-raising violations, among other things) and former State Senate President Ben Stevens (R.-Anchorage) (whom federal prosecutors got Bill Allen and Rick Smith to say that they had bribed).

Code-named “POLAR PEN” (apparently for its origins in an examination into corruption regarding private prisons), this federal investigation has had big effects, both for people and for policy.

Eight defendants ultimately went to prison, and one served a sentence of home confinement. The executions of the search warrants on the offices of six state legislators beginning in August of 2006 helped fuel the gubernatorial campaign of insurgent Republican candidate Sarah Palin, already running on a platform of “I’m not one of the good old boys.” The oil tax legislation in 2006 that sent some lawmakers to prison was amended the next year to increase taxes substantially on the oil companies after the first indictments frightened some legislators into avoiding even the appearance of being in the pocket of the petroleum industry.

And after almost 40 years in the U.S. Senate, Ted Stevens got defeated for re-election in November of 2008 eight days after a jury returned guilty verdicts on seven felony counts of failing to disclose gifts on U.S. Senate forms. At the Senator’s insistence, the trial started only 55 days after the indictment instead of eight months or so later as would normally have occurred in this kind of case. Given the small margin in the voting, it’s clear that Stevens would have been re-elected if the trial had either not started or still been in progress on election day.

But now—about eight years after the investigation started—it’s all different. The POLAR PEN probe has fizzled out in ways that are both surprising and disappointing.

The case against Ted Stevens collapsed in the wake of revelations of prosecutors’ substantial failures to share evidence with the defense; the seven guilty verdicts got overturned, and Attorney General Eric Holder elected not to seek a retrial. The meltdown of the Ted Stevens case led to the federal government finding discovery failures in the cases against former Reps. Kott and Kohring, and the Ninth Circuit Court of Appeals has reversed their convictions. (Although as of this writing the federal government could retry Kott and Kohring, I predict that this will never happen. Note that this forecast comes from the same analyst who confidently predicted that Ted Stevens would never testify in his own defense.)

Following a U.S. Supreme Court decision that substantially narrowed the scope of the honest-services fraud statute—a law that provided a favorite arrow in the quiver of federal prosecutors—the Department of Justice dismissed the federal felony charges against Weyhrauch and let him plead guilty to a unique state misdemeanor that resulted in no jail time. (Weyhrauch’s lawyers have also gotten permission from the U.S. District Court to forward to the Alaska Bar Association evidence that they allege shows “serious misconduct by government prosecutors appearing before the grand jury,” including the suborning of perjury.) Clark was also allowed to withdraw his guilty plea in the wake of that Supreme Court decision.

The prosecutors charged a 12th defendant in 2009—former State Rep. Beverly Masek (R.-Willow)—who pleaded guilty and served a prison sentence, but she is clearly the last defendant in the POLAR PEN probe.

It is the probers who are now on the griddle. The federal government is conducting two probes of the conduct of the prosecutors and investigators who worked on the federal government’s investigation of Alaska public corruption. The Justice Department’s internal watchdog unit—the Office of Professional Responsibility (OPR)—is holding one of the two satellite probes; the other investigation is a highly unusual criminal probe run by a special counsel selected by the trial judge in the Ted Stevens case. Fingerpointing among various prosecutors over the discovery and handling of allegations against Bill Allen involving sexual abuse of minors appears to have contributed to the delays in wrapping up the two probes, which have each gone on for more than two years.

A story that seemed to start out with white hats and black hats has picked up a lot of shades of gray. The arc of some Alaskans’ feelings went from the bumper stickers of “We don’t give a damn how they do it Outside” to “Thanks FBI for cleaning up Alaska”—now it’s more like “How could the feds foul this up?”

This is the first in a series of columns to examine the causes, effects, and significance of the federal investigation into Alaska public corruption. It will rely on my extensive experience in Alaska, which brings both knowledge of how the state works and a number of other associations that might be seen as conflicts of interest when writing about this subject. (The full list of disclosures can be found at my blog at http://alaskacorruption.blogspot.com/2011/05/even-more-updated-biography-with-still.html on the Internet.) There are some lessons here and some elemental human stories, and this series of columns will have some of both.


Cliff Groh is a lifelong Alaskan who has worked as a prosecutor and represented some criminal defendants in his private practice. He maintains a blog on the federal investigation into Alaska public corruption at www.alaskacorruption.blogspot.com on the Internet. He is a lawyer and writer in Anchorage whose law practice focuses on the writing and revision of briefs and motions.

Traffic Cop in the Subarctic Summer: Pete Kott's Trial Scheduled for Aug. 8; Impoverished Vic Kohring Gets Court-Appointed Lawyer

Anchorage--

A conflict kept me from attending a pre-trial hearing yesterday in the case of U.S. v. Victor Kohring, but fortunately Richard Mauer of the Anchorage Daily News did show up at that proceeding regarding the former Republican member of the Alaska State House from Wasilla. Mauer's article covers both that hearing and some procedural events in the case of former State Rep. Pete Kott, R.-Eagle River. You can find Mauer's story here.

Nuggets from Mauer's piece:

1. The court has set Kott's trial to start August 8 in Anchorage.

2. Despite what you may heard from other media sources, the question of whether retrials of Kott and Kohring will actually happen is still up in the air. Mauer's article says that Assistant U.S. Attorney Kevin Feldis told him that "the Justice Department hadn't yet decided whether it would retry Kohring, but as in Kott's case, prosecutors were moving ahead as if it would. The decision would be made by a high-level official in Washington, Feldis said."


The higher up that decision-maker, the less likely Kott and Kohring will be retried. I maintain my previously expressed prediction that those two disgraced ex-officeholders will not face trial again on these public corruption charges.


3. Vic Kohring is still poor. The famously broke former legislator announced yesterday that he came to court in a borrowed vehicle carrying a borrowed $40. In a successful bid to get a court-appointed defense attorney, Kohring testified that his four bank accounts hold less than one dollar combined.

Pre-Trial Fencing Starts Regarding Pete Kott's Re-Trial

Anchorage--

A court hearing in the re-started Pete Kott case this morning resulted in some judicial decisions on procedural matters, but left open the question of whether the United States government will ever re-try the former Speaker of the Alaska House of Representatives.

The magistrate granted the defendant's motion to appoint an attorney to defend him in the possible re-trial, and then went ahead and selected the lawyer who has already represented Kott on appeal. The court provisionally denied, however, the request for a second defense attorney more experienced in trials to represent the former Eagle River Republican lawmaker, now a Juneau resident.

Looming over the hearing was the issue of whether the prosecution would press ahead after all that has happened. U.S. Attorney Karen Loeffler told U. S. Magistrate John Roberts that "for now" the feds plan to re-try the former legislator, but that "things could change." The government made moves that protected its options on a re-trial--Loeffler named two additional prosecutors in Washington, D.C. who are set to work on the Kott case, one of whom was among the lawyers in four cities participating in the teleconferenced hearing.

Printing your roster is of course not the same thing as playing the game, however, and I adhere to my previously expressed belief that the federal government will never re-try either Kott or his former legislative colleague, ex-State Rep. Vic Kohring (R.-Wasilla). I predict with even more certainty that neither man will ever spend another day in prison for their roles in Alaska's public corruption scandals.

The pressures on the prosecution and the defense in each of those cases may lead to Kott and Kohring resolving their cases against them by pleading guilty to that same unique state misdemeanor of knowingly consorting with unregistered lobbyists that the feds got former Rep. Bruce Weyhrauch (R.-Juneau) to plead guilty to in a deal to make the multiple federal felonies go away. Although the evidence is stronger against Kott and Kohring than it was against Weyhrauch, the incentives for the prosecution to avoid airing in a courtroom the federal government's interactions and decisions regarding convicted briber and accused sex abuser Bill Allen are very strong in the cases of all three former legislators.

Whatever happens, it looks like the decisions on the re-trials of Kott and Kohring will come before the leaves fall. U.S. District Judge John Sedwick has ordered that the lawyers agree on a proposed re-trial date that is no later than August 9 of this year in the Kott case, and it looks like the schedule will run about a week later in the Kohring case. Stay tuned.