With another writing project mostly completed, I can return to blogging and announce that the court has agreed with Pete Kott's defense lawyers that two of the counts in his indictment are duplicitous.
The law prohibits charging two or more distinct offenses in a single count of an indictment. This rule against duplicitous charging is based on a criminal defendant's Sixth Amendment rights to know what she is charged with and to be only convicted of a crime in a jury trial in federal court if the jury is unanimous. (The logic is that if a count charges Crime A and Crime B, allowing the jury consider that count could unfairly produce a conviction on that count even if only five jurors concluded that the defendant was guilty of Crime A and the other seven jurors concluded only that the defendant was guilty of Crime B.)
The court observed that another argument against duplicitous charging was that it violated the Fifth Amendment's protection against double jeopardy in that it created a lack of clarity over the offense for which the defendant was charged or convicted.
One count of the indictment against ex-State Rep. Pete Kott (R.-Eagle River) charges him with at least separate acts involving bribery: a bogus flooring invoice; a political poll; and a promise of employment. Similarly, another count charges him with "Interference with Commerce by Extortion Induced Under Color of Official Right" for committing those same three acts.
The court ruled that as to both counts, the three acts described different facts--different days, different amounts of money, different locations. Accordingly, both counts are duplicitous.
The court laid out three possible remedies for the duplicitous nature of the two counts: (1) an announcement by the prosecution for each count of the specific act upon which the prosecution will seek conviction; (2) an instruction from the court requiring the jury to agree on the specific act for which the defendant is being convicted; or (3) dismissal of the duplicitous count. The court gave the prosecution and defense a week to submit suggestions on what should be done.