Pete Kott and Vic Kohring had hoped to convince the three judges overseeing their appeals to help the men get the full story about how and how often prosecutors not only withheld evidence during the former politicians' corruption trials, but also how decisions were made to keep secrets from the defense and who made them.
But in their quest for new leverage, Kott and Kohring are out of luck. In decisions handed down Friday, the three-judge panel from the 9th U.S. Circuit Court of Appeals said "no."
Kott and Kohring had asked for an evidentiary hearing to try to get to the bottom of things, but the request was denied. Had the men won the right to a evidentiary hearing and had they been able to show during the hearing that prosecutors acted "flagrantly, willfully, [or] in bad faith" during the course of the trials, the judges could choose to punish the prosecution by throwing out the cases.
Because Kott and Kohring had an ally going in, all they needed was to convince one more judge to lean their way. Earlier this year when the panel handed down its decision to reverse the convictions and grant the men new trials, Judge Betty Fletcher was the only of the three judges to believe the court should go a step further and throw the cases out.
The government "failed to fully grasp the egregiousness of its misconduct, as well as the importance of its constitutionally imposed discovery obligations," Judge Fletcher wrote in her opinion regarding the main appeals the men made. "Because a new trial, in my view, is insufficient to remedy the violation of Kott's constitutional right to a fair trial and to deter future illegal conduct, I would exercise our supervisory authority to dismiss the indictment with prejudice."
In deciding whether to grant a new evidentiary hearing, Fletcher was again outvoted 2-to-1. She was the only of the three judges who voted in favor of Kott and Kohring's latest efforts.
The decision squarely puts the ball back into the hands of the Justice Department, which must now decide whether to put itself and Kott and Kohring through a second round of trials. Given all that has happened in the years since the government won convictions against the men, new trials are certain to be much different. The star witnesses and the government itself have tarnished reputations.
Yes, the government still has the audio and video clips showing Kott and Kohring in less than flattering scenes. In one, Kohring accepts a fistful of money. In another, Kott boasts to oilman Bill Allen, who is still serving time for his role in the bribery schemes, "I had to get 'er done. I had to cheat, steal, beg, borrow and lie."
"I own your ass," quips Allen in response.
It has since come out that Allen, who cut a deal for himself then rolled at trial on the politicians he had greased, was under investigation for sexually exploiting minors, but for reasons not yet fully explained the investigations went nowhere.
Contact Jill Burke at jill(at)alaskadispatch.com