Anchorage--
My hike yesterday up a mountain in Pete Kott’s legislative district delayed this posting but hopefully improved its quality. As announced last Friday, the new attorney for that convicted, imprisoned, but at least temporarily released former Republican State Representative from Eagle River has filed a motion to get his indictment dismissed and thereby end his case.
The pleading is a well-prepared catalogue of alleged discovery violations by the prosecutors in the federal public corruption trial of the former Speaker of the Alaska State House that ended in September of 2007 with guilty verdicts on three counts. Two key witnesses against Kott at the trial were long-time VECO CEO Bill Allen and his political lieutenant, VECO Vice President Rick Smith.
The filing is primarily based on more than 4,000 pages of documents that the Department of Justice gave access to the defense after the trial. You can read the filing at http://alaskadispatch.com/images/stories/files/kott%20motion%20to%20dismiss.pdf on the Internet.
Here are my additional thoughts on that pleading:
1. Unless the Department of Justice can somehow rebut the allegations of prosecutorial misconduct in the Kott trial, the government’s case is in big trouble.
Recall that in our system of justice prosecutors are held to special legal and ethical obligations that don’t apply to other lawyers. One of those obligations is the responsibility to turn over certain evidence to the defense before trial. Kott’s filing lays out a number of instances where documents provided to the defense post-trial show statements by witnesses that appear to cast doubt on—or even contradict—evidence and arguments presented at trial by the prosecution. One example offered in the pleading involves a payment by Allen of $5,000 to Kott that helped the former legislator buy a truck. While the government ridiculed at trial Kott’s assertion that the $5,000 payment was a loan from Allen and not a bribe, the prosecution never turned over before the trial a federal investigator’s report from an interview of Allen in which Allen allegedly said that the oil-services tycoon considered that payment a loan.
It will be very interesting to see how the government’s new lawyers address these allegations. As is common with pleadings of 58 pages (59 if you count the signature page), some of the allegations are stronger than others. (Kott’s attorney overplays, for example, the importance of allegedly suppressed evidence that the former 14-year legislator would have voted on oil taxes the way Allen wanted even in the absence of bribes, because legislators can be helpful to people interested in legislative outcomes in ways beyond their vote. Examples include intelligence-gathering and lobbying of other legislators.) Even given a little overreaching by the defense, the oft-stated axiom that prosecutors are supposed to turn square corners means that the Department of Justice attorneys will be sweating to come up with good responses as to why so many documents that look like they should have been turned over were not provided before the trial.
Just because there appear to have been some discovery violations, however, does not automatically mean that U.S. District Court Judge John Sedwick will dismiss the indictment and end the case against Kott. He may order a retrial—the more common remedy for discovery violations—and he may even allow the defense an opportunity to get more discovery. If the court doesn’t dismiss the case, the defense’s alternative request is for Judge Sedwick to order additional discovery, including depositions of some of the government’s witnesses. This mess is likely to grow.
It must be said that those faced with a particular mess include Nicholas Marsh, a trial attorney from the Washington, D.C.-based Public Integrity Section who served as the Department of Justice’s go-to guy in Alaska in the federal “POLAR PEN” probe into public corruption on the Last Frontier. In a bit caught by Rich Mauer of the Anchorage Daily News, the pleading shows that the investigation has been running since July of 2003, and Marsh served as a prosecutor in three of the trials produced by that probe. Marsh was on the in-court prosecution team against Kott as well against ex-State Rep. Tom Anderson (R.-Anchorage) and ex-U.S. Sen. Ted Stevens (R.-Alaska). Along with five other government attorneys, Marsh is the subject of two investigations into discovery violations in the collapsed prosecution of Ted Stevens. Marsh’s attorneys cannot be happy with the disclosure of Marsh’s e-mail to his supervisors that suggests what some will say represents insufficient attention to Marsh’s discovery obligations during witness coaching sessions with Allen. Memo to everybody: Even though some people tend to treat e-mail as the equivalent of a telephone conversation that disappears into the ether, electronic mail is instead a permanent record that lives forever.
2. Witnesses in criminal trials often have warts, but Bill Allen's warts are uglier than most.
The dominant feeling of jurors in criminal trials often is a sense of shock that there could be people who really lived the way the lay witnesses in criminal cases often do. As I told one friend, those witnesses frequently do not resemble the folks at his table at Rotary meetings. One extreme example came when I was a prosecutor: I had one witness in a sexual abuse of a minor case who some years previously had been drinking with two men in a house when one man shot the other to death. She just kept drinking with the killer—in the same room with the dead man’s body—for hours until the authorities showed up.
So as a former prosecutor of sex-crime cases I’ve seen some pretty bad stuff, and I’m also used to witnesses with dents and scratches on them.
Having said all that, the new Motion to Dismiss filed by ex-State Rep. Pete Kott’s new attorney alleges that the federal government apparently sat on—and even discouraged the Anchorage Police Department from pursuing—evidence of some unusually sordid crimes committed by Bill Allen. The allegations are gross—maybe even beyond gross. They include allegations that while in his 60s, the oil-services magnate had sex with as many as five underage girls. He allegedly even went to the mother of a 15-year-old girl and asked if he could date her daughter; the mother allegedly agreed and Allen supposedly then began taking care of the mother financially on a long-term basis.
Two points about these allegations, all of which Allen apparently denies. The first is that the charges make him look so evil and depraved that even their airing will tend to hurt him in the eyes of future judges and jurors. This is not good news for a man facing sentencing next month before the same judge who is reading all these allegations in Kott’s new pleading.
The other point is a question that is probably in the minds of a number of defense attorneys whose clients face prosecution heavily based on Bill Allen’s testimony: When did the federal government first talk about underage sex with Bill Allen, and who brought up the subject?
3. This story started out looking like it was all-American and particularly all-Alaskan, but now it has elements of a Russian novel as well as multiple Greek tragedies.
Showing posts with label Judge John Sedwick. Show all posts
Showing posts with label Judge John Sedwick. Show all posts
Monday, September 28, 2009
Saturday, August 29, 2009
The Government Will Keep Fighting to Hang on to the Kott and Kohring Convictions
Anchorage—
Pete Kott and Vic Kohring get to stay out of prison for the time being, but they still need to sweat getting sent back.
The prosecution and the defense announced in joint filings yesterday that they weren’t able to agree on what to do about the Department of Justice’s admitted failures to provide evidence before the trials of the two convicted state legislators. Given that what the defense would have wanted as a remedy for these discovery violations was the government to agree to drop the cases entirely, the lack of an agreement means that the Department of Justice has decided to keep fighting.
So former State Reps. Kott (R.-Eagle River) and Kohring (R.-Wasilla) get to continue to walk the streets, and their fates are now squarely in the hands of U.S. District Court Judge John Sedwick.
Judge Sedwick is in a bind, and you get the feeling he looks around in each case and sees on both sides a lot of conduct he doesn’t like from people who should have known better. Despite being veteran lawmakers, Kott and Kohring looked sleazy on numerous FBI tapes played in his courtroom during their trials. Despite being a long-time oil-services tycoon and Republican campaign fund-raising powerhouse, star prosecution witness Bill Allen is an admitted serial briber of state legislators.
It's of course common (and desirable) for the government to limit its prosecutions to defendants who seem guilty, and anybody who understands criminal law knows that the witnesses in those cases are often not model citizens.
Our system holds prosecutors to a higher standard, however, so what’s so odd in these two cases is what Judge Sedwick has called the government’s “admitted, and remarkable, failure to timely provide all of the discovery required….” This failure of the government to turn over evidence was the same problem that tubed the prosecution of U.S. Sen. Ted Stevens—in fact, the uncovering of the discovery violations in that case led the Attorney General to throw in the towel and ask the judge to dismiss it. With the government still fighting on in the Kott and Kohring cases, the Department of Justice presumably decided that the evidence not disclosed on a timely basis to the defense in the trials against those legislators must not be so damning that giving up was required.
In terms of what Judge Sedwick will do, a lot will depend on what the government did not disclose that it should have. We should get our chance to find out soon. In each case, the government and the defense jointly asked the court to require the defense to file no later than September 30 any motions based on the evidence newly turned over by the prosecution. The defense will need to set out the basis for its motions, and in doing so will likely reveal the juiciest stuff previously undisclosed. The proposed schedule would have the prosecution respond no later than October 30, and the defense would reply to that prosecution response no later than November 13. Hearings on the motions would presumably come in November or December. Once again, stay tuned.
Update--I clarified and cleaned up the language in this post to remove ambiguity.
Pete Kott and Vic Kohring get to stay out of prison for the time being, but they still need to sweat getting sent back.
The prosecution and the defense announced in joint filings yesterday that they weren’t able to agree on what to do about the Department of Justice’s admitted failures to provide evidence before the trials of the two convicted state legislators. Given that what the defense would have wanted as a remedy for these discovery violations was the government to agree to drop the cases entirely, the lack of an agreement means that the Department of Justice has decided to keep fighting.
So former State Reps. Kott (R.-Eagle River) and Kohring (R.-Wasilla) get to continue to walk the streets, and their fates are now squarely in the hands of U.S. District Court Judge John Sedwick.
Judge Sedwick is in a bind, and you get the feeling he looks around in each case and sees on both sides a lot of conduct he doesn’t like from people who should have known better. Despite being veteran lawmakers, Kott and Kohring looked sleazy on numerous FBI tapes played in his courtroom during their trials. Despite being a long-time oil-services tycoon and Republican campaign fund-raising powerhouse, star prosecution witness Bill Allen is an admitted serial briber of state legislators.
It's of course common (and desirable) for the government to limit its prosecutions to defendants who seem guilty, and anybody who understands criminal law knows that the witnesses in those cases are often not model citizens.
Our system holds prosecutors to a higher standard, however, so what’s so odd in these two cases is what Judge Sedwick has called the government’s “admitted, and remarkable, failure to timely provide all of the discovery required….” This failure of the government to turn over evidence was the same problem that tubed the prosecution of U.S. Sen. Ted Stevens—in fact, the uncovering of the discovery violations in that case led the Attorney General to throw in the towel and ask the judge to dismiss it. With the government still fighting on in the Kott and Kohring cases, the Department of Justice presumably decided that the evidence not disclosed on a timely basis to the defense in the trials against those legislators must not be so damning that giving up was required.
In terms of what Judge Sedwick will do, a lot will depend on what the government did not disclose that it should have. We should get our chance to find out soon. In each case, the government and the defense jointly asked the court to require the defense to file no later than September 30 any motions based on the evidence newly turned over by the prosecution. The defense will need to set out the basis for its motions, and in doing so will likely reveal the juiciest stuff previously undisclosed. The proposed schedule would have the prosecution respond no later than October 30, and the defense would reply to that prosecution response no later than November 13. Hearings on the motions would presumably come in November or December. Once again, stay tuned.
Update--I clarified and cleaned up the language in this post to remove ambiguity.
Saturday, July 11, 2009
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.
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.
Friday, July 10, 2009
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.
…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.
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