Prosecution Announces Preliminary Intent to Put Bill Allen on Witness Stand in Vic Kohring Re-Trial

Anchorage--

The notice filed by the United States this afternoon states that government lawyers will ask the court to declare off-limits certain questions on cross-examination "to prevent confusion of the jury and the creation of irrelevant and improper side-trials on collateral issues," such as Bill Allen's alleged sexual crimes with minors and any alleged efforts to cover them up.

Judge Orders Curative Instruction and Special Verdict Form in Kohring Trial to Address Duplicity Issue in Bribery Charge

Anchorage--

To remedy a problem with charging too much bribery in one count of an indictment, the court has ordered that the jury in the Vic Kohring re-trial get a curative instruction and a special verdict form to insure that any conviction reflects unanimous jury agreement on what act constituted a bribe.

U.S. District Judge Ralph Beistline quoted the government's characterization that the court had decided that the indictment charges five bribes involving the former Wasilla Republican legislator and VECO executives. The government has described those five alleged bribes as:

1. the acceptance of approximately $1,000 in cash on February 23, 2006 ("the Island Pub incident")

2. the solicitation and securing of a job for Kohring's nephew beginning in February, 2006

3. the acceptance of cash payments on March 30, 2006 ("the Easter egg and Girl Scout uniform incident"

4. the solicitation of $17,000 on March 30, 2006 ("the credit card incident")

and

5. the acceptance of between $500 and $1,000 on June 8, 2006 ("the McDonald's incident").

For a variety of reasons--including the unfairness and uncertainty involved in not knowing exactly what conduct the jury would be convicting on--the defense asked the court either to dismiss the bribery count or force the government to choose in advance which conduct it would be relying on in seeking a conviction for bribery in the re-trial.

The government countered by requesting that the court issue a special jury instruction ordering the jury to agree on what act of bribery it was convicting on as well as a special verdict form in which the jury would specifically identify that conduct.

The court sided with the prosecution, ordering a special jury instruction and a special verdict form. Citing "expediency" and "public accountability," the court rejected the defense's requests for either dismissal of the bribery count or an order requiring that the prosecution elect in advance which of the five acts it was relying on. The court announced that the special instruction "would allow the jury to try Kohring on all the acts of alleged bribery" and that the special verdict form "would forestall any possible double jeopardy or unanimity problems."

This is a significant victory for the prosecution if there is a re-trial. The government lawyers will get to present to the jury what they have called "the full range of Kohring's corrupt conduct."

I'm Back, and Judge Beistline Tells the Prosecutors that They've Alleged Too Many Crimes Against Pete Kott in Too Few Counts

Anchorage--

With another writing project mostly completed, I can return to blogging and announce that the court has agreed with Pete Kott's defense lawyers that two of the counts in his indictment are duplicitous.

The law prohibits charging two or more distinct offenses in a single count of an indictment. This rule against duplicitous charging is based on a criminal defendant's Sixth Amendment rights to know what she is charged with and to be only convicted of a crime in a jury trial in federal court if the jury is unanimous. (The logic is that if a count charges Crime A and Crime B, allowing the jury consider that count could unfairly produce a conviction on that count even if only five jurors concluded that the defendant was guilty of Crime A and the other seven jurors concluded only that the defendant was guilty of Crime B.)

The court observed that another argument against duplicitous charging was that it violated the Fifth Amendment's protection against double jeopardy in that it created a lack of clarity over the offense for which the defendant was charged or convicted.

One count of the indictment against ex-State Rep. Pete Kott (R.-Eagle River) charges him with at least separate acts involving bribery: a bogus flooring invoice; a political poll; and a promise of employment. Similarly, another count charges him with "Interference with Commerce by Extortion Induced Under Color of Official Right" for committing those same three acts.

The court ruled that as to both counts, the three acts described different facts--different days, different amounts of money, different locations. Accordingly, both counts are duplicitous.

The court laid out three possible remedies for the duplicitous nature of the two counts: (1) an announcement by the prosecution for each count of the specific act upon which the prosecution will seek conviction; (2) an instruction from the court requiring the jury to agree on the specific act for which the defendant is being convicted; or (3) dismissal of the duplicitous count. The court gave the prosecution and defense a week to submit suggestions on what should be done.