A federal judge in Anchorage on Wednesday ordered the U.S. Marshals Service to bring former Alaska Reps. Pete Kott and Vic Kohring from prison into his court "as soon as reasonably possible" to set their release pending further hearings.
U.S. District Judge John Sedwick filed his orders shortly after the 9th U.S. Circuit Court of Appeals in San Francisco sent the corruption cases back to his court with directives that both men be released from prison. The three-judge appeals panel left it to Sedwick to determine conditions of release, though they noted that prosecutors had recommended the men be set free without bond. In a pair of one-paragraph orders, Sedwick said he would schedule hearings for both men as soon as the Marshals Service told him when Kott and Kohring would be in Anchorage. An official for the Marshals Service in Anchorage said she hadn't seen a copy of Sedwick's order yet and couldn't comment on the specific situation but said it sometimes takes weeks to arrange transportation for a prisoner from the Lower 48 to Anchorage.
Kott is serving a six-year sentence at the federal correctional institution in Sheridan, Ore. Kohring is doing 3 ½ years in Taft, Calif.
Late Wednesday afternoon, Kott's trial attorney, Jim Wendt, asked Sedwick to clarify whether he wanted a marshal to escort Kott back to Alaska. He said Kott would prefer to be released in Oregon and given a ticket for a flight back to Alaska.
"Doing so would save the government the funds required to transport a U.S. marshal along with the defendant," Wendt said. He said Sedwick had already determined that Kott was neither a flight risk nor a danger to others.
The remand follows a motion to the 9th Circuit brought last week by a new team of federal prosecutors requesting the return of the cases to the lower court in Anchorage. The prosecutors said the Justice Department had recently discovered favorable evidence that should have been turned over to Kott and Kohring before their trials in 2007. The new prosecutors have not said yet what the evidence is, nor have they suggested a remedy.
Both legislators were convicted on bribery and other charges.
In cases when undisclosed favorable evidence could have had a significant effect on a trial, the usual remedy is a new trial, though in the recent case of U.S. Sen. Ted Stevens, all his charges were dismissed at the request of the Justice Department.
Unlike Stevens' case, secretly recorded videos by the FBI showed Kott and Kohring accepting money from former oil services company executive Bill Allen, who was the chief witness against all three men.
In sending the cases back to Sedwick's courtroom, the 9th Circuit panel resoundingly rejected one point of Kohring's appeal -- that Sedwick should have removed himself from the case because of alleged bad blood between Sedwick's wife, a former state official, and Kohring.
Kohring raised that issue months after he was convicted and demanded a new trial with a different judge. Kohring said he didn't get a fair trial because of a public feud that began in the late 1990s with the judge's wife, Deborah Sedwick, a former state commissioner whose agency budget he tried to cut and whose department and job he said he eliminated.
Sedwick asked another federal judge for help, but that judge sent it back to him. Sedwick then ruled Kohring's complaint was late and without merit.
The 9th Circuit judges said Sedwick was right. "Kohring did not make this motion when the district judge was assigned the case, nor before the commencement of his criminal trial, nor at the conclusion of it," the 9th Circuit panel wrote. "He waited until three months after the jury entered its verdict, just prior to the sentencing date."
That was too late, the judges said.
"The underlying facts were known to Kohring many years before the trial. He claims he did not understand the significance of the facts until the last day of the trial. Nonetheless, with the exercise of the slightest amount of diligence, he could have ascertained the significance long before trial."
As for the substance of Kohring's complaint, the appellate panel said that Sedwick "handled all matters judiciously and fairly" and that a reasonable person with knowledge of the facts "would not reasonably question the judge's impartiality."
In sending both cases back to Anchorage, the 9th Circuit judges said Sedwick should rule only on the matters related to the undisclosed evidence. In doing so, they asked Sedwick to conduct a three-part test: to determine whether the government breached its obligation to provide favorable evidence; if so, whether the defendants were prejudiced by the violation; and if the defendants were prejudiced, what the remedy should be.
If the remands to District Court don't result in new trials or dismissal of charges, the cases go back to the 9th Circuit on other points of appeal raised by both defendants.