Sunday, August 30, 2009

Bonus Quiz on Odd Facts


Recently my postings have not been exactly frequent, so here’s a little compensation in the form of two of the most surprising things I learned this summer.

1. How much does it cost to go to Harvard Business School for a year?

2. When did the British Navy end its prize system, in which a captain and crew of a ship could claim a share of the take from a captured vessel?

If you answered “more than $76,000” and “1948,” give yourself a prize by telling someone you love why you care. Even if you got one or both answers wrong, you should do the same thing. You’ll feel better for it.

Saturday, August 29, 2009

The Government Will Keep Fighting to Hang on to the Kott and Kohring Convictions


Pete Kott and Vic Kohring get to stay out of prison for the time being, but they still need to sweat getting sent back.

The prosecution and the defense announced in joint filings yesterday that they weren’t able to agree on what to do about the Department of Justice’s admitted failures to provide evidence before the trials of the two convicted state legislators. Given that what the defense would have wanted as a remedy for these discovery violations was the government to agree to drop the cases entirely, the lack of an agreement means that the Department of Justice has decided to keep fighting.

So former State Reps. Kott (R.-Eagle River) and Kohring (R.-Wasilla) get to continue to walk the streets, and their fates are now squarely in the hands of U.S. District Court Judge John Sedwick.

Judge Sedwick is in a bind, and you get the feeling he looks around in each case and sees on both sides a lot of conduct he doesn’t like from people who should have known better. Despite being veteran lawmakers, Kott and Kohring looked sleazy on numerous FBI tapes played in his courtroom during their trials. Despite being a long-time oil-services tycoon and Republican campaign fund-raising powerhouse, star prosecution witness Bill Allen is an admitted serial briber of state legislators.

It's of course common (and desirable) for the government to limit its prosecutions to defendants who seem guilty, and anybody who understands criminal law knows that the witnesses in those cases are often not model citizens.

Our system holds prosecutors to a higher standard, however, so what’s so odd in these two cases is what Judge Sedwick has called the government’s “admitted, and remarkable, failure to timely provide all of the discovery required….” This failure of the government to turn over evidence was the same problem that tubed the prosecution of U.S. Sen. Ted Stevens—in fact, the uncovering of the discovery violations in that case led the Attorney General to throw in the towel and ask the judge to dismiss it. With the government still fighting on in the Kott and Kohring cases, the Department of Justice presumably decided that the evidence not disclosed on a timely basis to the defense in the trials against those legislators must not be so damning that giving up was required.

In terms of what Judge Sedwick will do, a lot will depend on what the government did not disclose that it should have. We should get our chance to find out soon. In each case, the government and the defense jointly asked the court to require the defense to file no later than September 30 any motions based on the evidence newly turned over by the prosecution. The defense will need to set out the basis for its motions, and in doing so will likely reveal the juiciest stuff previously undisclosed. The proposed schedule would have the prosecution respond no later than October 30, and the defense would reply to that prosecution response no later than November 13. Hearings on the motions would presumably come in November or December. Once again, stay tuned.

Update--I clarified and cleaned up the language in this post to remove ambiguity.

Thursday, August 6, 2009

Jim Clark Looks Likely to Be Free for Another Year


Here is some news and some rank speculation concerning the closed hearing this morning about the timing of the sentencing of Jim Clark, former Chief of Staff to former Gov. Frank Murkowski.

The news is short enough to print in full. Judge John Sedwick issued an order reading "The sentencing in this case is CONTINUED until October 15, 2010 at 8:30 a.m. ...If the case of U.S. v. resolved at the trial court level prior to September of 2010, the court will move Mr. Clark's sentencing to an earlier date."

Now for the rank speculation.

This order makes it look like the government said today that it was going to call Clark as a witness against former State Rep. Bruce Weyhrauch (R.-Juneau), whose case has been sidetracked on a pre-trial appeal that will be considered by the U.S. Supreme Court during its 2009-2010 term.

I find it difficult to believe that Judge Sedwick let the government keep Jim Clark free for another 14 months just so he could be ready to testify against Weyhrauch, particularly given that the judge had already explicitly said that Clark could be brought out of prison for purposes of testifying if that was the only reason not to put him in. It's possible that Clark's attorney pointed to some unusual medical problems as a reason to keep Clark out of prison now, but the specific--and particular--sentencing date as well as the reference to Weyhrauch's case militate against that as being the reason behind today's order.

It strikes me as likely that the prosecutors also said that they needed to milk Clark for more information on what happened regarding corruption involving the development and consideration of oil tax legislation in 2005 and 2006 and that in today's 19-minute closed hearing they gave Judge Sedwick enough to accept that argument as a reason to keep Clark out of prison for another 14 months beyond the 17 months he's already been out. Note that October of 2010 is also five years--the general federal statute of limitations--past the start of the time when most criminal activity appeared to have occurred regarding the Petroleum Profits Tax (PPT) legislation. As to who the targets of that continued debriefing of Clark would be, the obvious guesses would be former State Senate President Ben Stevens (R.-Anchorage) and Frank Murkowski. (Neither of the latter two have been charged, Ben Stevens has repeatedly denied any wrongoing, and Frank Murkowski's well-known hands-off approach to his job might serve as a good defense to any criminal charge.)

The bottom line is that Jim Clark looks likely to be free to enjoy the whole Alaska winter--as well as next summer--while former VECO executives and admitted bribers Bill Allen and Rick Smith appear headed for prison this fall.

(Hat tip to the astute reader who flagged this order and asked me good questions about it.)

Update: I cleaned up the spacing and added the job title for Ben Stevens.

Jim Clark and the State of Play


District Court Judge John Sedwick has ordered the prosecution to appear at a closed hearing tomorrow morning and persuade him not to make Jim Clark—former Chief of Staff to ex-Governor Frank Murkowski—to start serving his sentence. Clark pleaded guilty more than 17 months ago to a single count of conspiracy to commit honest services fraud, and he has been kept out of prison since then because he is cooperating with the federal investigation into public corruption on the Last Frontier.

But Judge Sedwick seems to be getting tired of the delays in Clark going off to prison, just as the judge recently showed even more impatience with the slowness in sentencing former VECO executives and admitted bribers Bill Allen and Rick Smith, who have been cooperating just short of three years now. As the judge’s order says, he needs to figure out “how best to accommodate the tension between defendant Clark’s assistance in on-going investigations and possible up-coming trials with the need to bring the case against Mr. Clark to a conclusion.”

One of the considerations in this closed-door talk-turkey discussion tomorrow morning is just how much those investigations are actually going on and likely to produce more defendants and thus potentially more trials. One of the factors in that decision on future prosecutions, in turn, is the possibility that the Attorney General or other higher-ups in the Department of Justice will conclude that the best way to use the major failures demonstrated in some of the POLAR PEN prosecutions on the Last Frontier is to make them a teachable moment for federal prosecutors by closing up shop on the probe.

That teachable moment brought by ending the investigation would be the message that federal prosecutors who make glaring mistakes in providing evidence to the defense—a process lawyers call “discovery”—will not only face severe career consequences but also see their work go up in ashes. (Note that the six prosecutors currently under investigation about their work on the Ted Stevens trial have already faced some repercussions. All six have had to spend time with expensive defense attorneys whose bills will almost certainly only be partially paid by the federal government, but two of those prosecutors have been sent to the Justice Department’s version of Siberia. Joe Palazzolo of reported in June that Nicholas Marsh and Edward Sullivan have been transferred from their plum assignments at the Public Integrity Section to the Office of International Affairs, where they are presumably advising the State Department on treaties and coordinating international extraditions while staying far away from the courtroom.)

There have been some big screw-ups by government lawyers uncovered in the case against former U.S. Sen. Ted Stevens. It also looks bad for the way the cases against ex-State Reps. Pete Kott and Vic Kohring were handled that the feds have agreed to let those two convicted former state legislators go free while new teams of prosecutors review the way discovery was done before those trials.

But commenter Howard Weaver is correct: It is beyond odd to the point of exquisite irony that some people—so far all Republican office-holders—who did seamy things are escaping punishment because a Republican-run (and apparently highly
politicized) Department of Justice blundered terribly.

Speaking of odd, two other points stand out:

1. It is passing strange that former State Rep. Tom Anderson is the only person sitting in prison tonight due to this investigation. While the evidence at trial showed his guilt, he is hardly the most culpable person uncovered by this probe.

2. It would be even weirder if the federal government got Bill Allen and Rick Smith to plead guilty to bribing former State Senate President Ben Stevens and then never charged Ben Stevens with any crime.