Tuesday, February 9, 2010

Judge Denies Pete Kott's Renewed Request for Relief, and Tantalizing Facts about the Government's Internal Probe Are Revealed


The court yesterday turned down the motion of former State Rep. Pete Kott (R.-Eagle River) for reconsideration of the court’s rejection of the ex-legislator’s attempt to use allegations of prosecutorial misconduct to stay out of prison. The latest flurry of filings contains interesting nuggets on the scope and progress of the investigations into the former prosecutors for failure to turn over evidence to the defense.

Recall the history: After getting convicted on public corruption charges following jury verdicts in 2007, the former lawmaker and his long-time colleague ex-State Rep. Vic Kohring (R.-Wasilla) were released from prison while U.S. District Court Judge John Sedwick was asked to sort out what effects the government’s admitted failures in providing evidence should have on those defendants. Kohring’s case is moving slower because he got new lawyers last year, so Kott is going first.

Based on the prosecutorial misconduct, Kott asked Judge Sedwick to either dismiss his case outright and overturn his convictions. Short of that, Kott requested the court at least order that the defense get additional evidence (known as “discovery” in legal lingo) and an evidentiary hearing to find out just what the government has not turned over to the defense.

The judge ruled last month against Kott’s requests. The day after Judge Sedwick’s order was issued, however, the government’s new set of attorneys e-mailed to the defense 105 pages of additional discovery, triggering a motion for reconsideration of the judge’s order denying Kott’s request.

That timing looked curious, but the government’s opposition explains what happened. The 105 pages of discovery are not--as I previously assumed--the notes of government investigators or lawyers sitting in on interviews of key prosecution witness Bill Allen. Instead, those notes were made by Bob Bundy, the attorney for the long-time CEO of VECO and confessed serial briber, while FBI agents and prosecutors interviewed his client. Bundy gave the handwritten notes to the Department of Justice’s internal watchdog, the Office of Professional Responsibility (“OPR”), in the course of OPR’s probe into misconduct by the original government lawyers, and OPR gave them to the new team of prosecutors shortly before the judge issued his order last month.

Judge Sedwick reviewed the Bundy notes and announced yesterday that the newly disclosed documents did not change the court’s mind. The judge noted that some of the documents “are not particularly helpful to Kott.” Observing that the government did not have those notes before trial and thus could not have produced them, the court also concluded that in the context of all the evidence the failure to produce them before trial did not compel giving the ex-lawmaker any relief.

What is also striking, however, is something that the court’s new order does not address. As the government’s opposition to Kott’s request for reconsideration notes, “It is extraordinarily unusual for the government to come into the possession of notes written by an attorney for a cooperating witness.” The provision of these notes to the investigators of the trial prosecutors suggests—as Fairbanks attorney and friend of this blog Mark Regan has pointed out—that OPR is going to great lengths to find out just what was said at the government’s interviews of Allen to see if the trial prosecutors either encouraged or condoned perjury. Stay tuned.