Judge to decide what happens next with Kott and Kohring

STATUS REPORTS: Justice department won't go for dismissal.

August 28, 2009 

The Justice Department has apparently decided to not dismiss charges against convicted legislators Pete Kott and Vic Kohring as it did for U.S. Sen. Ted Stevens earlier this year, and may fight efforts by the men to get new trials.

In status reports filed Friday in Anchorage, the prosecution and defense said they couldn't agree on how the cases against Kott and Kohring should proceed, leaving it for U.S. District Judge John Sedwick to decide later this year or in 2010.

Attorneys for Kott and Kohring had sought dismissal of all charges based on the failure of prosecutors to turn over evidence favorable to the men. The status reports show the Justice Department is not acquiescing to that dismissal demand, as it did for Stevens earlier this year.

The reports show that even on the question of whether the government's conduct prejudiced the jury against Kott and Kohring, prosecutors and defense attorneys are not in agreement.

The corruption cases ran into a wall when the Justice Department admitted it had broken court rules on the favorable evidence question in the trials of Stevens, Kott and Kohring.

Stevens was found guilty by a jury of failing to disclose tens of thousands of dollars of gifts from an oil-field contractor and others. But the Justice Department dismissed his charges in April when the trial judge in Washington, D.C., accused prosecutors of misconduct.

Such a ruling has not been made in the cases of Kott and Kohring, convicted in Anchorage in 2007 of taking bribes from the same oil-field contractor, former Veco chief executive Bill Allen, who by then was helping the FBI. In June, with their cases before the 9th U.S. Circuit Court of Appeals, the Justice Department asked Sedwick to release Kott and Kohring from prison pending a determination of whether the government's failure to fully disclose information about Allen and others had tainted the trials.

Sedwick directed the sides to come up with a plan on how to proceed by the end of August.

The status reports, signed by all sides, suggest to Sedwick that he order Kott and Kohring to file motions arguing their cases by Sept. 30. Prosecutors would have a month to respond, with final defense replies by Nov. 13. The sides would then make oral arguments before Sedwick in November or December.

Based on instructions from the 9th Circuit, Sedwick would first have to rule on whether the government breached its obligations to turn over evidence, and, if so, whether the defendants were prejudiced. If the answer is no to either question, he could order the men back to prison. If yes, Sedwick would have to determine a remedy -- most likely new trials or dismissal of charges.

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