Anchorage Daily News

After months of backtracking in its prosecutions of the Alaska corruption cases, the Justice Department said Friday that former House Speaker Pete Kott received a proper trial in 2007 and his conviction on bribery, extortion and conspiracy charges should stand.

The government's response was a flat-out rejection of a motion filed last month by Kott's attorney seeking dismissal of charges because prosecutors failed to turn over favorable evidence before his trial.

"Kott has not established a constitutional discovery violation warranting a new trial, much less dismissal," the Justice Department said in its reply to Kott. "This court should therefore deny his motion."

The Justice Department has been on the defensive since it won guilty verdicts in October in its seven-count corruption case against former U.S. Sen. Ted Stevens.

That had been the government's 11th consecutive success at that point in its Alaska investigation, with no failures. But even as prosecutors were cheering their success in Washington, their case was unraveling.

Weeks later, a key Stevens prosecution witness said his testimony wasn't truthful and that prosecutors had mischaracterized some evidence. Then, an FBI agent in Anchorage complained the investigation had been conducted improperly and that Stevens was unfairly tried. Finally, under unrelenting pressure from Stevens' defense team and an increasingly skeptical judge, the Justice Department acknowledged it failed to provide favorable evidence to Stevens and asked for all charges to be dismissed.

The Stevens judge impaneled a special prosecutor to investigate the government lawyers for criminal contempt and the Justice Department began an internal investigation. Both investigations are ongoing.

Kott, an Eagle River Republican, and another former legislator convicted in Anchorage, Vic Kohring, a Wasilla Republican, were told by the Justice Department that they also didn't get all the favorable evidence they should have had before their trials. They were released from prison in June while U.S. District Judge John Sedwick considered what to do.

The 9th U.S. Circuit Court of Appeals in San Francisco directed Sedwick to review the evidence and decide whether to dismiss the cases entirely, retry them or declare the original trials were fair, likely sending the men back to prison.

'KOTT'S OWN ADMISSIONS'

With its new filing Friday afternoon, the Justice Department signaled it is not backing down and and is gearing up for a fight if Kott wants to bring one.

The prosecutors asserted that the evidence against Kott at trial, including secretly recorded video, was so overwhelming it took the Alaska jury but one day to convict him.

"Even though some of the information that the government recently disclosed could be considered favorable to the defendant, none of this information would have affected the jury's verdict when weighed against the compelling evidence introduced at trial, including Kott's own admissions," prosecutors said. "The undisclosed information therefore was not material to either guilt or punishment, and Kott could not have been prejudiced by any nondisclosure of the information upon which he now relies."

The 48-page response was jointly submitted by the Justice Department's criminal division in Washington and the U.S. Attorney's office in Alaska.

For much of the investigation, started in 2003, and for all the trials, the U.S. Attorney's office here was excluded out of concern that the powerful Alaska politicians being targeted could present a conflict of interest. But after the collapse of the Stevens investigation, partly blamed on poor supervision, the U.S. Attorney's office was brought into the still-active cases.

Over the last few months, the prosecutors said they turned over thousands of pages of documents, handwritten notes and other material to Kott and Kohring. In a normal case, much of that material would be properly withheld, they said. But they cited "unique circumstances" that made it necessary "to assure the defendant, the Court, and the public that the Department of Justice takes its discovery obligations seriously and to allow Kott the fullest possible opportunity to evaluate the fairness of his trial."

Under Supreme Court decisions, the Justice Department said "the prosecutor is not required to deliver his entire file to defense counsel, but only to disclose evidence favorable to the accused that, if suppressed, would deprive the defendant of a fair trial."

'TITILlATING HEADLINES'

While some of the previously undisclosed evidence was capable of producing "titillating headlines" -- a reference to an open Anchorage police investigation of government witness Bill Allen for sexual abuse of a minor -- it wouldn't have changed the outcome of the case, the prosecutors said.

"Indeed, the jury observed Kott on no less than 56 audio and video recordings brazenly taking money from oil executives in exchange for official acts," they said, referring to Allen and Rick Smith, former executives of Veco Corp. "The jury heard Kott boasting that he 'had to cheat, steal, beg, borrow, and lie,' and would 'sell his soul to the devil' in order to pass legislation favorable to a company whose two principals had promised him a future job, and had given him over $11,000 in cash and other things of value. The jury also heard Kott admit that he and one of these oil executives ordered hats with the emblem, 'CBC,' which stood for 'Corrupt Bastards Club.'"

Kott, in his motion to dismiss, said he could have done a better job challenging Smith's credibility if he had suppressed evidence of Smith's heavy drinking. But the prosecutors said Smith's drinking should have been no surprise to Kott.

"Kott had personal knowledge of Smith's drinking habits because he was one of Smith's drinking partners," they wrote. "The tapes, which the government provided to Kott before trial, reveal numerous instances of Allen, Smith, and others, including Kott, drinking heavily in Room 604 of the Baranof Hotel (in Juneau), where much of the corruption at issue in this case took place. Therefore, Kott already knew about Smith's drinking habits -- likely in better detail than the government -- and Kott could have cross-examined Smith on that point if he wished to do so."

Find Richard Mauer online at adn.com/contact/rmauer or call 257-4345.

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