From Mark Regan:
Late Friday afternoon, the Government filed its opposition to dismissing the corruption case against former State Representative Pete Kott (R.-Eagle River) or giving Kott a new trial.
After the Ted Stevens prosecution collapsed, a new set of Government attorneys reviewed the records of the past prosecutions, including the prosecutions of Pete Kott and of former State Representative Vic Kohring (R.-Wasilla) and determined that a lot of information had not been turned over to the defense in those two cases. The Government agreed that Kott and Kohring should be released from jail while Judge Sedwick considered motions to dismiss their cases, or to give them new trials. Pete Kott’s attorney filed that motion in late September; Vic Kohring’s attorney is supposed to file his motion next Friday. In its opposition to Kott’s motion, the Government doesn’t defend its failure to turn over information; instead, the Government says that its not turning over information before trial didn’t deprive Pete Kott of a fair trial.
The Government’s main line of argument is that its failure to give Kott various things before trial didn’t make any difference: none of the materials it initially failed to turn over to the defense, it says, would have prompted the jury to acquit Pete Kott. Part of the argument is that at trial the judge would have excluded most of the Bill Allen sexual-abuse-investigation records as irrelevant and prejudicial, so the Kott jury would never have heard about that investigation during Kott’s cross-examination of Allen. Another part of the argument is that while some withheld information might be relevant, it is outweighed by other withheld information in the same document or by other information presented at trial. For example, while parts of an FBI 302 interview-notes form might support Kott’s defense that a $7,993 payment was meant genuinely to compensate him and his son for flooring work on Allen’s home, the 302 form taken as a whole—and testimony at trial—support the Government’s theory that the payment was instead meant to compensate the son for time the son was putting in running Kott’s reelection campaign. A third part of the argument is that Kott had some of the information before trial anyway, and so failure to turn additional information over before trial didn’t make any difference.
One example the Government uses to support this third part of its principal argument sheds some light on what the POLAR PEN team’s disclosure practices might have been. One of Kott’s defenses is that Bill Allen and Rick Smith were giving him financial help not because they were bribing him, but because he was a longtime friend of Allen’s who needed the support. Not long before Kott’s trial, the prosecutors sent Kott’s trial attorney a letter, which read:
“We write to provide you notice of the following information. Potential government witnesses Bill J. Allen and Richard L. Smith, if they testify at trial, would testify that with regard to many of the benefits they and VECO provided to Peter Kott before and during the conspiracy (including but not limited to storage space at the “Toy Store,” flooring tools, auction items, assistance for political campaigns by Kott’s relatives, and assistance with the purchase of a truck), Allen and/or Smith and/or VECO provided such benefits partly so that Kott would continue to take official actions on the part of VECO and Allen and partly because Allen and Smith considered Kott a friend.
“If you have any questions please do not hesitate to contact us.”
This letter, the Government now says, adequately conveyed to the defense that one of Allen and Smith’s motives was friendship; so, the Government now says, the fact that it didn’t initially turn over FBI 302 forms saying much the same thing (according to the Government) didn’t harm the defense.
Presumably the Kott defense will now say in its reply memo that this brief statement wasn’t good enough: it would have done a better job cross-examining Allen and Smith at trial if it had been able to use the much more detailed FBI 302 interview summaries.
A larger question is whether this prosecution practice—of withholding the FBI 302 interview summaries but providing individual items of information to the defense in a less usable form, such as a cryptic letter—is a practice it systematically followed in the Ted Stevens case and other cases. If so, one would expect the people now investigating the prosecution team’s conduct to reach some conclusions about whether that practice amounted to an ethical violation on the prosecutors’ part. It would also tend to undercut the prior prosecutors’ defense that their mistakes were a matter of oversight and haste, not deliberate decision-making.
Note that in Kott’s case the Government is not now defending its initial failure to turn over information to the defense. It does say in a footnote that it has now turned over a lot of information that it didn’t have to turn over, but it doesn’t say that any particular item shouldn’t be considered now because it wasn’t something that it was legally required to turn over before. This is consistent with the replacement prosecution team’s distancing itself from the things the prior team did. Pete Kott and Vic Kohring are out of jail because the second group of prosecutors decided to disclose information that the first group of prosecutors had failed to disclose. The second group of prosecutors will now be defending the convictions the first set of prosecutors obtained—at least the convictions of Kott and Kohring—but they apparently will not be defending the first team’s failure to turn over information to the Kott and Kohring defenses.