Traffic Cop in the Ocean State: Kott Talks to the Alaska Dispatch About Dropping His Not Guilty Plea

Warwick, R.I.--

Jill Burke of Alaska Dispatch gets an interview with Pete Kott about the ex-legislator's decision to change his plea of not guilty to a bribery charge.    Consistent with my observation yesterday about his world-weariness, the former seven-term Republican lawmaker from Eagle River told Burke that "I'm just trying to bring finality to this whole thing.  It's been five years."    Asked whether his move to change his plea means that he is in fact guilty, the former Speaker of the Alaska House added that "Maybe it's just time to put it behind me and move forward in life regardless of what [I] think the outcome should be."  

Kott indicated that he had been in some turmoil about the decision:   "I've been like a windshield wiper on a car--back and forth."

We'll learn a lot more about the difficulties that played on Kott's mind when we see the actual plea agreement and sentence on that plea.

Pete Kott Will Plead Guilty to Bribery Charge

Warwick, R.I.--

So I'm here visiting my son in college, and Pete Kott's lawyer announces that the former Speaker of the Alaska House will plead guilty to a charge of accepting a bribe from VECO executives Bill Allen and Rick Smith. All indications would be that the defense and the prosecution have made a plea agreement in which the government will dismiss the other three counts against Kott: conspiracy; extortion; and honest services wire fraud.

Given that my location thousands of miles away from Alaska, I feel even more free to speculate than usual:

1. It would appear that the former seven-term Republican State Representative from Eagle River is more concerned about the cost, hassle, and risk of a trial scheduled for Fairbanks in December than he is bothered about the prospect of becoming a felon again.

2. The logic that seems to be working here is consistent with my understanding of the defendant and what it seems likely he understands from his conversations with his attorneys. Pete Kott strikes me as a sensible realist who had become afflicted with world-weariness and an alcohol problem, and when he heard--as he probably did--that he is highly unlikely to spend more time in prison, he decided to cop a plea and cut his losses.

3. As suggested above, I think it likely that Pete Kott believes that his guilty plea will not lead to more prison time, probably because the plea agreement either specifically guarantees that result or because the prosecution has promised not to ask for it and the defense believes that under all the circumstances the judge would not impose it.

4. Note that my prediction that the government would not re-try Pete Kott and Vic Kohring now looks to be at least half-correct. Just like Lincoln seized upon the partial Union victory at Antietam to issue the Emancipation Proclamation, I will take this opportunity to offer a new motto for this blog based on the football columnist Gregg Easterbrook's repeated disclaimer: "All Predictions Wrong or Your Money Back." I'm going one better than Easterbrook: Here, it's "All Predictions Wrong or Double Your Money Back."

Court Denies Pete Kott's Motion to Dismiss Alleging "Egregious Government Misconduct"

Anchorage--

Continuing a path towards a re-trial that I have repeatedly predicted wouldn't happen, District Judge Ralph Beistline today entered in U.S. v. Kott an "Order Denying Defendant's Motion to Dismiss Indictment Due to Intentional Prosecutorial Misconduct." In the order, the court describes the core of Kott's argument as an allegation that the federal government "suppressed information relevant to Bill Allen's predatory sexual conduct and subordination of perjury in order to protect Allen's reputation as a witness in a white collar trial."

The court said that evidence that the lead FBI agent allegedly had a practice of not writing down information that was not favorable to the government was useful material for cross-examination of that agent, not grounds for dismissal of the indictment. The court also said that even if the defense was accurate in its allegation that the Justice Department made "a conscious decision to 'sacrifice the child victims of [Allen's] predation and perjury'" to pursue public corruption charges against Kott, such a decision would be within the broad discretion in prosecution the law gives to the government.

Pete Kott Gets the Same Remedies of Curative Instruction and Special Verdict Form that Vic Kohring Did

Anchorage--

U.S. District Judge Ralph Beistline handled the duplicity issue with Pete Kott the same way he did for Vic Kohring.

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.