Order on Compelled Testimony, Again

Anchorage--

I've reviewed the order issued by the court Tuesday allowing the special counsel investigating discovery failures by the prosecutors in the Ted Stevens trial. As noted yesterday, that court order grants that special counsel the power to issue subpoenas to those six prosecutors plus the lead FBI agent on the case, star prosecution witness Bill Allen, and Bill Allen's attorney. The six prosecutors are under the microscope to see if they committed criminal contempt.

Persons ordered to testify under oath have the right--subject to narrow exceptions--to claim the right not to do so under their Fifth Amendment right not to incriminate themselves, as Rich Mauer pointed out in yesterday's edition of the Anchorage Daily News. As Harper's blogger Scott Horton has noted, however, it would be odd indeed for Department of Justice lawyers to exercise that Fifth Amendment right and remain as federal prosecutors. (Horton' s post is at http://www.harpers.org/subjects/NoComment on the Internet, and is one of several he has written on the Ted Stevens case and the follow-on probe of the prosecutors. This lawyer's blog is also worth reading for his coverage of issues involving torture.)

Disclosure: I worked briefly with Bill Allen's attorney Bob Bundy back in the 1980s in the Anchorage District Attorney's Office, and both Bill Allen and Bob Bundy are my neighbors in the adjoining West Anchorage neighborhoods of South Addition and Bootlegger's Cove.

Judge Grants Request of Special Counsel Looking at the Ted Stevens Prosecutors the Power to Compel Testimony

Anchorage--

I was in Interior Alaska all day today with an Internet connection as sketchy as my record this month in posting. All I can do right now is point you in the direction of Rich Mauer's story in the Anchorage Daily News this morning. Mauer's article reports that the court has given the special counsel looking into the conduct of the prosecutors in the Ted Stevens trial the power to compel testimony from those six government attorneys as well as from the lead FBI agent in the case, star prosecution witness Bill Allen, and Bill Allen's attorney. That article is at http://www.adn.com/news/politics/fbi/stevens/story/879880.html on the Internet.

I'll have more analysis tomorrow. As a bonus, I'll have photos. Come on back.

Judge Sedwick Turns Up the Heat on the Feds and Suggests that Bill Allen and Rick Smith Will Go to Prison Soon

Anchorage--

It looks like it's time for the feds to put up or shut up.

Tired of long delays and apparently dismayed by the prosecution’s errors in other cases in the Alaska public corruption investigation, District Court Judge John Sedwick has set a date for sentencing admitted bribers Bill Allen and Rick Smith.

Orders issued this week name October 28 as the day that the two disgraced VECO executives will face justice for their bribery of Alaska legislators.

Since Allen and Smith pleaded guilty to several crimes in May of 2007, the judge had granted five requests by government lawyers to put off sentencing for the pair. The court allowed the delays so that the bribers could cooperate with the prosecution in building cases against other defendants in the “POLAR PEN” probe.

But now the judge has had enough, and has denied a request for a sixth extension. Judge Sedwick cited several reasons for putting his foot down now. The judge observed that the crimes of the pair are serious and “involve the integrity of the political process in the State of Alaska.” Those crimes occurred some time ago—some were back in 2002. The public has a substantial interest in seeing the imposition of sentence for these crimes.

The court pointed to practical factors as well. The federal government has had more than two years to get whatever they can get out of Allen and Smith to use in prosecuting others. What’s more, it appears that everybody who could get indicted was known at the time the two pleaded guilty.

Judge Sedwick didn’t say it, but at least one of those potential future indictees was named in sworn testimony. Allen and Smith have stated under oath that they bribed former State Senate President Ben Stevens (R.-Anchorage) while testifying in the trials of former State Reps. Pete Kott (R.-Eagle River) and Vic Kohring (R.-Wasilla).

Hanging over the judge’s orders announcing the sentencing date for the former VECO executives was his obvious exasperation with the errors of prosecutors that led to Kott and Kohring walking around free today along with former U.S. Sen. Ted Stevens (R.-Alaska). Failures to provide discovery of evidence to defense attorneys forced onto Judge Sedwick the task of sorting out what to do in the cases against Kott and Kohring, and prosecutorial misconduct famously produced the setting aside of the guilty verdicts against Ted Stevens.

The judge offered one opening for the prosecutors to avoid the sentencing of the pair on October 28, but he signaled that opening is small indeed. If the government files a detailed request under seal giving the name and the date for each indictment that will rely on information from the VECO executives, the judge said that he would consider granting another delay past October 28.

The strong feeling you get from reading these orders, however, is that sentencing for Allen and Smith will occur on October 28. The pair can come in from prison and testify at later trials and still request reduced punishment based on that additional cooperation even after they have been sentenced.

Judge Sedwick’s tough new stand will tend to force the government’s hand regarding
additional prosecutions in “POLAR PEN.” The testimony of Allen and Smith figures to be critical in any trials of future defendants, and prosecutors might see the pair as likely to be more cooperative--and perhaps less unsavory--if they are not on temporary release from federal prison when they go on the witness stand. We will likely find out sooner rather than later whether the figures most frequently fingered as being the next to face criminal charges in that probe—including Ben Stevens, U.S. Rep. Don Young (R.-Alaska), and former State Sen. Jerry Ward (R.-Anchorage)—will actually be prosecuted.

I've Been Gone and Then Unexpectedly Busy, So...

Anchorage—

…my WOW! comes highly delayed. My Governor retains the capacity to shock and surprise.

Given this blog’s focus on actual criminality in Alaska public life, this is not the place to find wild speculation, sordid rumors, or blue-sky guesses regarding why Sarah Palin resigned or what her bold decision will mean for her, the state, or the country. That stuff is available all over the Internet.

I will say that Sarah Palin surged into the governorship in part due to her image as an ethically clean populist who was shaking up a grubby and tainted Old Boys’ Club. It was striking, then, that right after the sudden announcement of her intent to resign the FBI stated that she was not under investigation by the agency. This was a great departure from the federal government’s usual practice of not commenting on the status of anybody except those who have been charged, and it seemed that there was so much uncertainty and frenzy about the actual reasons for Governor Palin’s announcement of her intent to resign that the FBI felt compelled to make an exception.

Coming tomorrow: Judge Sedwick announces that the prison doors likely loom soon for Bill Allen and Rick Smith—and what that announcement means.

Ocean-Going Question on Teachable Moments

Anchorage--

The sun is shining, and I'm off to Alaska's jewel-like Prince William Sound, where I will kayak, eat good seafood, and watch some Fourth of July fireworks on the beach. I won't be back at a computer until Monday afternoon, July 6.

During any downtime in the celebration of our country's anniversary, readers might want to ponder the following question. Will the accumulating list of problems in the five-year-old federal investigation of Alaska public corruption combine with the Last Frontier's distance from our nation's capital to lead the Department of Justice to stop that investigation in order to give prosecutors around the U.S. a lesson on how to comply with discovery obligations? To put it another way, will Attorney General Eric Holder pull the plug on "POLAR PEN" to use it as a teachable moment for crime-fighters?

Bruce Weyhrauch Will Get His Day in the U.S. Supreme Court

Anchorage—

The prosecution has suffered another setback in the federal investigation of Alaska public corruption, as the U.S. Supreme Court has agreed to hear the pre-trial appeal of the one defendant whose guilt has not been adjudicated.

The Supreme Court has announced that it has taken the case of ex-State Rep. Bruce Weyhrauch (R.-Juneau) to decide whether the prosecution needed to prove that he violated a duty of disclosure under state law in order to convict him of the federal crime of honest services fraud through the mail.

Federal prosecutors have alleged that Weyhrauch was seeking paid work as a lawyer from the oil-services titan VECO at the same time he was heavily involved in legislation fixing tax rates on the major oil producers in Alaska, who were VECO’s most important clients. The Department of Justice’s position is that Weyhrauch’s failure in 2006 to disclose his letter to VECO asking for work as an attorney while working with VECO on a bill on which VECO was lobbying hard deprived the public of Weyhrauch’s honest services as a legislator. Weyhrauch, by contrast, asserts that his failure to disclose is only a crime if state law required him to disclose and that state law imposed no such obligation.

The issue to be decided in the U.S. Supreme Court only relates to one count of a four-count indictment brought against the former legislator in May of 2007. The prosecution obviously considered the question important enough, however, to appeal the trial judge's ruling against the government on that issue just before the trial was set to begin. That interlocutory appeal kept Weyhrauch's trial from starting, and has sidetracked the case for almost two years.

Due to the government’s decision to make the pre-trial appeal, Weyhrauch’s case is the only one arising from the investigation in which there has been neither a trial nor a plea agreement. The decision by the U.S. Supreme Court to hear this appeal likely adds at least another six months before Weyhrauch’s case is finished.

The case has wound its way through the federal appellate system during the last 22 months. After District Court Judge John Sedwick ruled for the defense on the disclosure issue, the Ninth Circuit Court of Appeals reversed the trial judge's ruling, and the defense appealed the Ninth Circuit's decision to the Supreme Court.

It was a significant feat for Weyhrauch’s lawyers to even get the Supreme Court to take the case. The U.S. Supreme Court only takes a tiny fraction of the cases that are appealed to it. A big factor in the defense’s favor is that federal circuit courts of appeal around the country have decided this issue in different ways, and alleging such an “inter-circuit conflict” is one of the best ways to get a case in front of the highest court in the land.

This is a good place to note that I fished and picked up trash with Bruce Weyhrauch in the late 1980s. As suggested by other disclosures I have made on this blog, before the investigation started I had contacts of various significance over the years with various defendants in these cases. I watched a movie with Ted Stevens in the mid-1960s and watched more films and played poker with him in the mid-1970s, discussed politics with Pete Kott in the late 1990s, exchanged e-mails about Alaska fiscal policy with Vic Kohring in the late 1990s, interviewed Bill Weimar in the early 1970s, and talked about the practice of law and legal matters with Jim Clark in the late 1980s and late 1990s. In terms of lawyers involved in these cases, I sat around a cabin in the mid-1990s with Doug Pope, who has represented Bruce Weyhrauch and Bill Bobrick. During various periods in the late 1980s and early 1990s I worked at the Anchorage District Attorney's Office with Acting U.S. Attorney Karen Loeffler as well as with Paul Stockler (attorney for Tom Anderson) and Kevin Fitzgerald (attorney for John Cowdery).

Hat tip: Erika Bolstad, Anchorage Daily News.

Catch-Up II

Anchorage--

1. In a further sign of the turmoil that rolled over the Justice Department’s Public Integrity Section following the post-trial meltdown of the Ted Stevens case, William Welch has been taken off his duties as supervisor of another case arising out of investigation of Congressional corruption. The Associated Press reported last week that Welch is no longer overseeing the prosecution of former lobbyist Kevin Ring, a former associate of jailed uber-lobbyist Jack Abramoff. Now one of the subjects of two investigations into prosecutorial misconduct in the Ted Stevens case, Welch is apparently still at least nominally the chief of the Public Integrity Section despite the reported shifts in his work assignments flagged by the Washington Post and noted in this blog yesterday.

2. Additional fall-out from the prosecutors’ problems in the Alaska public corruption cases showed up in District Judge John Sedwick’s order addressing former State Rep. Pete Kott’s request that the public pay for his attorney in the unusual post-trial review of his conviction. Judge Sedwick said that while it was a close question as to whether Kott’s financial situation made him eligible for court-appointed and taxpayer-funded counsel, the federal prosecutors’ unusual screw-up in this case tipped the balance. “[T]he expansion of this case arising from the United States’ admitted, and remarkable, failure to timely provide all of the discovery required…stretches Mr. Kott’s modest means too far.” For a judge in mid-litigation to call one party’s past action “remarkable” is itself fairly remarkable. (Hat tip: Anchorage Daily News.)