Alaska News

Kott corruption convictions thrown out by 9th Circuit

Score a victory for Pete Kott. The former speaker of the Alaska House of Representatives, once convicted and jailed on corruption charges, has won the right to a new trial. Kott is among the Alaska lawmakers caught up in a wide-sweeping political corruption probe centered on the activities of businessman Bill Allen and Allen's efforts to help determine new tax rates the Legislature was establishing for the oil industry.

"When the phone rang I was certainly apprehensive," Kott said of the early morning call he received from his attorney who was about the share the good news. "I was pleasantly elated that it worked out in my favor. At least at this point."

Kott's reserve in celebrating an all out win comes from a huge unknown still hanging over his head -- whether the government will in fact put him through a second trial. If he does find himself in court a second time, will he be able to better defend himself, armed with the information prosecutors were forced to hand over in the post-trial battles? "Oh absolutely," Kott said. "I think that the government's case was extremely weak to begin with and I think that has now been exposed."

In the midst of serving out his federal sentence on corruption charges, Kott was released in June 2009 at the request of the U.S. Justice Department. The move came after a federal judge threw out the case against former U.S. Sen. Ted Stevens citing bad trial conduct from government attorneys who repeatedly withheld information about Allen and other evidence that could have helped Stevens mount a stronger defense.

Lawyers for Kott and other defendants whose cases hinged on testimony from Allen and other witnesses then argued that their clients had also not received fair treatment.

"We are pleased that the 9th Circuit recognized all of the errors in the government's case," said Kott attorney Sheryl Gordon McCloud, reached at her office in Seattle Thursday. "We're sorry that it took this long to try to correct the errors, but we are glad that it finally did happen."

Will feds retry former Alaska lawmakers?

Three "Polar Pen" corruption cases in which the government won convictions later imploded as a result of the government's own trial mistakes. Ted Stevens, Vic Kohring and Kott eventually had their convictions tossed because prosecutors withheld evidence helpful to the defense.

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With Kohring and Kott it is not clear whether the government will attempt to salvage its battered track record by seeking new convictions against the former Alaska lawmakers. Alaska U.S. Attorney Karen Loeffler on Thursday would only say that retrials are "under consideration."

But if the cases do go to trial again, McCloud thinks problems with witnesses will continue to plague the government's efforts.

"They threw out all of the convictions of Pete Kott not on a technicality, but because the government's evidence was not trustworthy. If they retry him again, the government's evidence still won't be trustworthy," she said.

A three judge panel for the 9th U.S. Circuit Court of Appeals heard arguments in the case last October. On Thursday, judges Betty Binns Fletcher, A. Wallace Tashima and Sidney R. Thomas handed down their ruling. "We vacate Kott's conviction and remand to the district court for a new trial," wrote the circuit judges in their decision. "There is no doubt … that the prosecution suppressed evidence favorable to the defense."

The higher court disagreed with the district court in Anchorage about whether the withheld evidence –- which included information about investigations into Allen's sexual engagements with young women and his efforts to hide those associations, and information revealing inconsistent statements about the payments Kott received and why he received them -– would have changed the outcome of the trial.

U.S. District Court Judge John Sedwick ruled the newly discovered information would not have prejudiced the outcome. But the 9th Circuit judges came to a different conclusion.

"The newly disclosed evidence of Anchorage Police Department files suggesting that key prosecution witness Bill Allen sexually exploited minors, and attempted to conceal that behavior by soliciting perjury, would have been admissible and was not needlessly cumulative. Such evidence could have been used, at a minimum, on cross-examination to impeach Allen's testimony," the judges wrote. "Additionally, the newly-disclosed evidence documents numerous prior inconsistent statements about the payments Kott allegedly received and the reasons for such payments. Much of the evidence was not cumulative of what was presented at trial, and could have been used to undermine Allen's credibility while bolstering Kott's.

"When viewed 'collectively' … we hold that 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'"

And therein lays the underlying, and still present, problem with the cases, according to McCloud. "You can bet that they will have a hard time calling Bill Allen given how discredited his testimony is now," she said.

Only one of the three circuit court judges, Betty Binns Fletcher, thought that the prosecution acted "flagrantly, willfully, or in bad faith." Had a majority of the judges agreed with her that the prosecution's screw ups regarding evidence were intentional, the indictment -- and not just the convictions -– could have been thrown out. McCloud said it was clear at the oral arguments in the case in October that Fletcher's follow up questions to the attorneys made it clear that the judge felt the government's behavior was "reprehensible." (Listen to a recording of the hearing here.)

"I am deeply troubled by the government's lack of contrition in this case. Despite their assurances that they take this matter seriously, the government attorneys have attempted to minimize the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair trial -- despite the government's failure to disclose thousands of pages that reveal, in part, prior inconsistent statements by the government's star witnesses, Bill Allen and Rick Smith, regarding the payments Kott allegedly received," Fletcher wrote in a dissenting opinion that also expressed concerns with information about the investigation into Allen's alleged sexual exploitation of minors as well as information regarding the mental health of another witness, Rick Smith.

"The government's stance on appeal leads me to conclude that it still has failed to fully grasp the egregiousness of its misconduct, as well as the importance of its constitutionally imposed discovery obligations," Fletcher continued. "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."

"Decisions like this underscore the need for legislative change in this arena," McCloud said, referencing the rules of evidence that attorneys are required to follow.

McCloud believes the rules need to be changed. Her suggestions? "Disclose early, err on the side of caution, and impose real punishments if (prosecutors) don't," she said, adding that the citizens of Alaska have suffered because the rules are too lax to force the government to do what it's supposed to. "You guys in Alaska have just lost a ton because of the government's ability to attack these individuals -- (Stevens, Kohring and Kott) -- and not play fair."

Kott adamant he did nothing wrong

Looking back, Kott does have some regrets, he said. Allen and Smith were his friends, and he wishes he would have had more insight about what they were really up to, and maybe chosen better people to keep close to him. "They were trying to take advantage of me and I certainly didn't know it," he said.

Kott is adamant that he didn't do anything wrong, and that the flooring work the government claims Allen overpaid for as a way to get money to Kott was undervalued, as Kott had actually, he claims, given Allen a break on the bill because of their friendship.

When asked whether he should have avoided such relationships to begin with -- a sitting legislator taking paid work from a businessman lobbying the state on issues that were coming up for a vote -- Kott, who makes a living installing hardwood floors, was indecisive. "That's a tough line to cut through," he said. "I've probably done work for a half dozen people that have lobbied the Legislature over the years. That's just a business arrangement. As long as it remains a business arrangement I don't think you're crossing the line."

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These days, Kott said he's living in Juneau and staying home a lot, taking care of his dog and working around the house. He's lost touch with a lot of his former associates from the "Polar Pen" era, and maintains what he calls a "fairly quiet" existence. His ups and downs with the justice system have helped him learn to "mellow out," and gone are the days of alcohol-fueled bravado, some of which was captured on video during the federal investigation into his ties to Allen and Smith.

If there is relief in the decision vacating his convictions, it's that after nearly two years of appealing the trial outcome he finally has some resolution. He's hoping the wait to learn whether he'll have to again face trial won't take nearly as long.

"Sitting around is for the birds. It's anguishing," he said.

Contact Jill Burke at jill(at)alaskadispatch.com

Jill Burke

Jill Burke is a former writer and columnist for Alaska Dispatch News.

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