The 9th U.S. Circuit Court of Appeals on Friday threw out the 2007 conviction of former Alaska state Rep. Vic Kohring and ordered a new trial, further undermining the flawed federal investigation of public corruption in Alaska.
A three-judge panel from the San Francisco-based appellate court said prosecutors withheld critical information from Kohring's defense attorneys, the same issue that resulted in dismissal of the corruption conviction of U.S. Sen. Ted Stevens in 2008.
In the case of Kohring, a seven-term conservative Republican from Wasilla, the appeals court ruled 2-1 that the errors by government prosecutors weren't flagrant enough to warrant dismissing charges outright.
The dissent was from Judge Betty Fletcher, who said the entire case should be thrown out over "egregious violations of basic prosecutorial responsibilities." She said Kohring should be freed "from further anguish and uncertainty."
Chief among the undisclosed evidence, the judges said, was the Anchorage Police investigation of the FBI's chief witness over allegations he had sex with underage girls, then induced at least one to lie about it under oath. Kohring should have been allowed to use that evidence to challenge the credibility of the witness, multimillionaire Anchorage businessman Bill Allen, the court said.
Kohring began serving a three-and-a-half-year prison sentence in June 2008. He was freed on bail a year later to pursue his appeal.
A Justice Department spokeswoman in Washington, D.C., said attorneys there were reviewing the 9th Circuit order before deciding their next move.
The prosecutions of the Alaska public corruption cases were directed by the Justice Department's Public Integrity Section, which underwent a wholesale shake-up after the Stevens case. Three of its former attorneys, along with two prosecutors loaned to the investigation from the U.S. Attorney's Office in Anchorage, are under investigation for criminal contempt by a special prosecutor appointed by the judge who tried Stevens. A fourth former Public Integrity attorney committed suicide.
One of Kohring's attorneys, Seattle federal public defender Michael Filipovic, said he hopes the government will decide to dismiss the case, as it did with Stevens.
"This has really been a black mark on the Department of Justice," he said in a telephone interview. "At some point, as they did with Sen. Stevens, they should consider moving on."
The ruling is likely to be good news to former Rep. Pete Kott, also convicted in 2007. Kott, a former House speaker and an Eagle River Republican, is appealing to the 9th Circuit on similar grounds.
"It does make us hopeful in Kott's case," said his Seattle attorney, Sheryl Gordon McCloud.
In ordering a new trial, the appeals judges noted that a new prosecution team from the Justice Department turned over thousands of pages of documents to Kohring's defense team after the collapse of the Stevens case. Much of the significant undisclosed evidence involved former Allen, the star witness in all three cases -- Kohring, Kott and Stevens.
Allen was chief executive of Veco Corp., Alaska's leading oil-field services contractor. Over a long history in Alaska, he made a point of doing favors for politicians, whether it was renovating Stevens' house in Girdwood, giving Kohring cash to put in his stepdaughter's Easter eggs, or giving Kott sexual enhancement pills.
Allen, caught in secret FBI videotapes and wiretaps with conspiring to corrupt the state Legislature, began cooperating with the FBI in 2006 and later pleaded guilty to bribing Alaska officials to improve the climate for the oil industry. He's serving a three-year sentence at a federal prison near Los Angeles.
In addition to the undisclosed information about Allen's alleged sexual abuse, prosecutors also failed to turn over statements by Allen and another Veco official that contradicted testimony about bribes he said he paid Kohring. One document suggested he gave Kohring $200 in $20s instead of a wad of $100s, and that it was for pity, not influence, the 9th Circuit noted.
Last year, the 9th Circuit asked U.S. District Judge John Sedwick, who tried both Kohring and Kott, to review the evidence and determine its significance.
In August, he ruled in both cases that while the information should have been turned over to the defense, it wouldn't have changed the outcome of the trial. He said he wouldn't have allowed the Allen sex material to be introduced because of its prejudicial nature. And the videotape evidence was overwhelming, he said, and overshadowed questions about Allen's changing stories.
The 9th Circuit, while praising Sedwick's analysis, said he erred on both counts. The videotapes didn't show how much money Kohring received, they judges said -- the jury could only learn that from testimony. And the defense should have been allowed to show Allen had an extraordinary reason to cooperate with prosecutors if he thought it would keep the sex charges out of public view.
Also relevant to his credibility were the allegations that he directed one woman to commit perjury and sent another out of town to prevent her from testifying in an unrelated state court trial that could have exposed his conduct, the 9th Circuit said.
Among the issues facing prosecutors in deciding what to do next is the importance of Allen's testimony to a second Kohring retrial, and whether they can proceed without their now-tainted witness. In the only remaining corruption case to be tried, that of former Rep. Bruce Weyhrauch, R-Juneau, prosecutors have already said they won't call Allen. That case is scheduled to begin May 9 before Sedwick in Juneau.