In another shocking development in Alaska's political corruption investigation, the U.S. Justice Department on Thursday asked that two former state legislators be released from prison because their trials were tainted by the failure of prosecutors to disclose information favorable to the defense.
In filings with the U.S. 9th Circuit Court of Appeals, the Justice Department said Pete Kott and Vic Kohring should be set free while their cases are sent back to U.S. District Court in Anchorage for further consideration. They were both convicted in that court in 2007.
The Justice Department didn't describe the new information it discovered. But the issue is similar to the problem that led to dismissal of charges against U.S. Sen. Ted Stevens in April after he was convicted on seven counts of failure to disclose gifts and services.
In a written statement issued just after 5 p.m. on the East Coast, Attorney General Eric Holder said he has asked the Justice Department's Criminal Division "to review the department's public corruption investigation in Alaska to ensure that all other discovery obligations have been met."
The move by the Obama administration's reconstituted Justice Department "is enough to make Vic Kohring become a Democrat," lawyer John Henry Browne joked about his arch-conservative client.
Gov. Sarah Palin, who sat in on part of Kott's trial, said this in an e-mail:
"Until I get more information on this newest twist, I can't comment beyond saying I am wildly curious what went on in DOJ back then, and what is going on in DOJ now that's resulted in these stunning turn of events. I agree with the attorney general that the Department of Justice should be about justice, not just about winning cases but I will withhold further comment until we see how this plays out."
"Wow, wow, wow," said Sen. Fred Dyson, the Eagle River Republican who helped the FBI in its investigation. "I'm surprised, to say the least. I sat all the way through the Kott trial and watched the video," said Dyson, referring to secretly made recordings by the FBI.
The videos, secretly taken from a lamp in a Juneau hotel suite in 2006, captured Kott and Kohring talking oil-tax strategy with officials from the now defunct oil-field service company Veco Inc. The government presented evidence that those officials, chief executive Bill Allen and vice president Rick Smith, also made illegal payments to Kott and Kohring. Allen and Smith have pleaded guilty to bribery and are awaiting sentencing.
"Particularly with Kott, I thought the evidence was compelling," Dyson said.
SIDES IN AGREEMENT
Kott's Seattle attorney, Sheryl Gordon McCloud, said Thursday afternoon she was trying to contact Kott in federal prison to tell him the news. She had earlier sought his release while he appealed his conviction, most recently in April, but the government opposed it at that time.
McCloud said she got a call from a Justice Department attorney shortly before the government filed its motions with the 9th Circuit in San Francisco. It will take an order from the 9th Circuit -- most likely from the three judges hearing the appeals -- to get the men out of prison. She said she expected the court to act quickly, given the fact that all sides are in agreement.
Kott and Kohring, both Republicans, were convicted by Anchorage juries in 2007. Kott, a former House speaker from Eagle River, began serving a six-year prison sentence in January 2008. He is being held at the Federal Correctional Institution in Sheridan, Ore. Kohring, from Wasilla, was sentenced to 3 1/2 years and reported to prison in June 2008. He is being held at the privately run Taft Correctional Institution in California.
Both filed their appeals before the collapse of the Stevens case in Washington. When the government admitted it had violated Stevens' rights to receive information that was favorable to him, Kott and Kohring demanded the government turn over information that might have been favorable to them as well and that wasn't disclosed at trial. Kott and Kohring argued their appeals April 14, just a week after Stevens' case was dropped. At the time, prosecutors said they hadn't had a chance to review their files for Brady material and that issue was left unresolved.
In the call, McCloud said the Justice Department attorney told her the review was still continuing, but enough undisclosed information had already been found to warrant release of Kott and Kohring and to send the cases back to the trial court to sort out what happens next.
McCloud said she hadn't seen the new documents, but they were being sent to her overnight. She was under an order to not publicly reveal the information, she said.
"It's always a good development when the government comes forward, discloses materials, is transparent, admits when it was wrong, tries to correct its errors and comes forward with evidence of innocence," McCloud said. "Of course, it's even better when they don't hide the ball in the first place and cause a man to spend time in prison on flaky evidence. But I certainly applaud the current government lawyers on the case for doing what they've done so far."
So far, the Justice Department's actions in the Kott and Kohring cases are more limited than what it did in the Stevens case. Rather than seek a new trial for Stevens, Attorney General Holder asked that all charges be permanently dismissed in the "interest of justice." Stevens' age -- he was 85 -- was frequently cited in commentary at the time to explain Holder's decision.
With Kott and Kohring, the government has not moved to dismiss the indictments, though presumably the defense lawyers will seek dismissal when they get back to U.S. District Court in Anchorage. The more common remedy in this kind of situation is a new trial.
"I don't know what 'sort everything out there' is going to mean," McCloud said, referring to her conservation with the Justice Department attorney. "It's an odd procedure because it's odd for the government to come forward with this sort of evidence this late in the game."
Kohring's attorney Browne, also of Seattle, said that if the government doesn't seek full dismissal of charges, he will. He also wants a new judge, someone other than U.S. District Judge John Sedwick, who heard Kohring's and Kott's cases.
After Kohring's trial, Browne accused Sedwick of having a conflict because the judge's wife, a former state commissioner, had an "extremely antagonistic relationship" with Kohring when he was in the Legislature. Kohring didn't realize that Judge Sedwick was married to Deborah Sedwick until after the trial, Browne has said.
The four Justice Department attorneys who prosecuted Kott and Kohring were also involved in the Stevens case. They, and two supervisors in the Justice Department's Public Integrity Section, are the subject of a criminal contempt investigation ordered by U.S. District Judge Emmet Sullivan, who presided over the Stevens case.
Sullivan's order establishing the contempt investigation by a special prosecutor, Henry Schuelke, deals solely with potential violations of his own orders to prosecutors, so the Kott and Kohring cases would be outside his jurisdiction.
The Justice Department's Office of Projection Responsibility, which does have jurisdiction, is also looking at the conduct of the prosecutors and of FBI agents involved in all the cases.
Family members and friends of Kott and Kohring stressed, in interviews after Thursday's announcement, that the news doesn't mean the cases are dismissed outright.
No matter what happens now, Kohring has lost everything, said Robert Hall, a witness for Kohring at his trial, owner of Gorilla Fireworks in Houston and a lawyer.
"His reputation has been pretty tattered. He cashed in all his retirement. His parents sold half the property they had to pay for his defense. He's broke. And his wife has divorced him," Hall said.
Kott's daughter, Pamela, said she didn't want to say too much with the case still pending. She is visiting her father at Sheridan this weekend on an already planned trip.
"That would be so nice if I could just take him home," Pamela said.
Meanwhile, lawyers for two defendants who pleaded guilty in the long-running corruption investigation say they want to re-examine their clients' cases in light of the latest twists.
Bob Bundy, a former U.S. attorney who represents Allen, said he needs to learn more about the new developments. Allen pleaded guilty to bribery and conspiracy charges in May 2007 and testified for the government against Kott, Kohring and Stevens. Allen is awaiting sentencing.
Former state Rep. Bev Masek is the most recent to plead guilty, admitting in federal court in March that she accepted a bribe to kill a bill that would have raised oil production taxes.
"We'll have to review what's going on now. This is breaking news for today, so I'll have to look at it and see," said Rich Curtner, Masek's federal public defender. Curtner said he will need to talk with government lawyers about the substance of the information being newly disclosed to Kott and Kohring's defense. "I don't know if there is anything there that pertains to our case or not."
Masek is scheduled to be sentenced June 25. That could be delayed in light of Thursday's developments, Curtner said.
Amid everything else, the FBI's investigation remainS ongoing, said Eric Gonzalez, the FBI's chief division counsel in Alaska.
"Just know that this case continues. We'll address these issues as they come up," he said.