As summer approaches, it will bring to nearly five years the length of time that has passed since the federal government raided the Anchorage offices of several state lawmakers, exposing publicly for the first time and in a big way that Alaska politicians had been under scrutiny for abusing their power in exchange for money.
The inquiries yielded federal criminal charges and convictions against businessmen, lobbyists and six politicians, including the late U.S. Sen. Ted Stevens. But of the dozen criminal cases brought forward, three have been thrown out as a result of the government’s decision to keep hidden from view evidence that could have helped the defense teams. Mistakes were so bad in the Stevens case that the Justice Department chose to drop the case altogether. And, it’s unknown whether the government will make a second attempt at convictions against Pete Kott and Vic Kohring, who were freed from jail over the evidentiary mess and earlier this year won the right to new trials from an appeals court.
Yet Kott and Kohring are not alone in waiting for some semblance of closure in an investigation and series of cases that has not only had dramatic upheavals but also saw two people on opposing sides die waiting for final vindication.
Strange though it may seem, Kott and Kohring are hoping to avoid a second chance to prove their innocence. They’d much prefer the cases simply go away once and for all. While the justices of the higher court did indeed call for new trials for the men, attorneys for Kott and Kohring are pushing for a chance to have the court rule that prosecutors screwed up so badly that the only way to make things right is to throw the cases out.
The standard for making such decisions is whether the government's attorneys acted "flagrantly, willfully, or in bad faith," something only one judge on the 9th Circuit's three-judge panel thought had occurred. Kott and Kohring’s defense teams say there’s a good reason the court’s majority didn’t find enough evidence of bad prosecutorial conduct to toss the case: Prosecutors continue to hide the very evidence that could prove why and how frequently they failed in their duties, according to the men’s attorneys.
In an effort to get the full picture, Kott and Kohring have gone back to the 9th Circuit Court of Appeals and asked to revisit the issue. Only through an evidentiary hearing will the answers come out, they argue.
The list of Kott and Kohring’s unanswered questions largely hinge on whether a star witness had reasons to lie on the stand and what lengths prosecutors went to keep information that could have discredited him under wraps. Bill Allen, the government's main witness in the cases, was at one point investigated for sexually exploiting minors and encouraged at least one of the young women to lie about it. But according to the defense teams, evidence exists that suggests federal prosecutors told Anchorage police to back off the case.
Had Kott or Kohring had the opportunity to question Allen about this revelation during their trials, it could have discredited his testimony.
Allen and another trial witness, Rick Smith, also gave inconsistent statements about how much money traded hands and the reasons behind it. Yet investigators only shared with the defense interviews that reinforced the prosecution’s corruption and bribery narrative, according to an analysis of the cases by the appeals judge who thought the cases should be thrown out.
At issue now is how much the trial team knew about any withheld evidence and how far up the chain of command that knowledge went. To find out, Kott and Kohring's defense teams want the government to hand over any information relating to how the trial team made its decisions to suppress information the defense feels it was entitled to.
An example cited by Kott attorney Sheryl Gordon McCloud details an email between prosecutor Nicholas Marsh and his superiors in the Justice Department's Public Integrity Section warning that Allen had, on the eve of trial, begun making statements about how "Pete was my friend" and "He never extorted me." But the full exchange remains heavily redacted, and McCloud wants to know more about the advice Marsh received.
McCloud also raised suspicions about the failure of the FBI to keep notes when its interviews with Allen didn’t go well.
"…the reason that the record might lack ‘sufficient evidence' of willful, flagrant, bad faith, suppression of evidence is that the government is still withholding that evidence – not because such evidence does not exist," McCloud wrote in her motion asking for the hearing.
If the higher court agrees to a hearing, and the defense teams successfully show a sustained and calculated effort to suppress evidence that could have helped Kott and Kohring, the court does have the discretion to punish the prosecution by dismissing the cases outright.
If, given the chance, the Justice Department will haul Kott and Kohring back to court a second time in search of another set of convictions remains to be seen. U.S. Attorneys in Alaska have been silent on the issue, and the Justice Department declined to comment, citing the fact that the cases weren’t yet fully resolved at the 9th Circuit.
Meanwhile, findings from two separate investigations into the conduct of the prosecution's trial team that went after the late U.S. Sen. Ted Stevens--many of whom were involved in the Kott and Kohring cases--have yet to be made public. Two years ago, U.S. District Court Judge Emmett Sullivan ordered an inquiry into whether prosecutors committed any crimes in their mishandling of the case. And the Justice Department ordered an internal investigation into the conduct through its Office of Professional Responsibility. The Justice Department declined to comment on its internal investigation, and the attorney handling the inquiry for Judge Sullivan said only that he is "not at liberty" to discuss the matter.
Last year, Marsh, a young and ambitious attorney with a fast-rising career, took his own life. Many speculated he had suffered greatly under the stress of the inquiries.
Operation Polar Pen continues, kind of
Another figure whose fate has yet to play out publicly is Ben Stevens, Ted Stevens' son. Allen testified in court that the younger Stevens was among the people he had bribed, and his was one of the offices the FBI raided in August 2006. Yet Stevens, who was identified as a conspirator in indictments, though never named, has never been charged.
Most federal corruption crimes have a five year statute of limitations -- a time clock that starts ticking when a crime is committed, raising questions of whether Stevens may have successfully avoided criminal proceedings. U.S. Rep. Don Young, also at one time under investigation, declared last summer that he had been notified by the Justice Department that they would not be prosecuting him. John Wolfe, Stevens' attorney, did not return an inquiry about whether Stevens had received similar notice.
The FBI also declined to comment about Stevens, and would only offer regarding operation "Polar Pen"--the government's name for its Alaska corruption probe--that "It is still an ongoing case."
"The case is still open and still active, still pending," said Eric Gonzalez, a spokesperson in the bureau's Anchorage office.
Gonzalez would not say whether "Polar Pen" remained open because the Kott and Kohring cases are unresolved, or for other reasons, like whether any uncharged individuals continue to be targets of the investigation.
Contact Jill Burke at jill(at)alaskadispatch.com