(CN) – Another former Alaska legislator convicted of corruption charges will get a new trial because prosecutors withheld material evidence about a key government witness, the 9th Circuit ruled.
Coming on the heels of a similar ruling for former state Rep. Victor Kohring earlier this month, the federal appeals panel in Seattle on Thursday vacated the bribery and extortion convictions imposed against Peter Kott, a one-time speaker of the Alaska House of Representatives.
Kott, a Republican who represented Eagle River, was sentenced to six years in prison and fined $10,000 for the crimes in 2007. He has been released on bond pending this appeal since 2009.
“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,” Judge Betty Binns Fletcher wrote in a separate, partially dissenting opinion.
Kott was one of three Alaska legislators, along with Kohring and Rep. Bruce Weyhrauch, taken down in 2007 by the FBI for accepting bribes to lobby the state House on behalf of the VECO Corporation, an oil field services company. A year later, investigators netted Sen. Ted Stevens, who was convicted of corruption and lost his seat representing Alaska in the U.S. Senate.
A judge handling Stevens’ appeal set aside the convictions just three months after the senator’s last day in office. The court slammed prosecutors for withholding key evidence about Bill Allen, one of the VECO executives to cooperate in the FBI’s investigation and testify in Stevens’ trial, and against the other Alaskan officials.
Stevens died in a small plane crash in Alaska another four months later. His 40-year reign had made him the longest-serving Republican senator in history.
In the wake of Stevens’ appeal, the 9th Circuit ordered the government to give Kohring the materials it had gathered on Allen, the VECO executive. The government responded with several thousand pages of documents, including FBI reports, undated and dated handwritten notes from interviews, e-mails, various memoranda and police reports.
Kohring vacated his convictions and sentence on March 11 after showing the government had concealed evidence that Allen was investigated for sexual misconduct with minors, and that Allen’s memory was shaky about the amount of money with which he allegedly bribed Kohring. The evidence also raised questions about whether the payments were made “out of friendship and pity rather than a corrupt quid-pro-quo relationship,” according to the ruling. The credibility of another VECO executive, Rich Smith, took a hit as well, with evidence suggesting that he made inconsistent statements and had a “questionable” relationship with an FBI agent involved in the investigation.
Kott appealed his convictions on the same grounds, but U.S. District Judge John Sedwick of Alaska said the evidence about Allen was not prejudicial, even if it had been withheld.
A three-judge panel of the 9th Circuit disagreed in an unpublished opinion Thursday.
“At a mininum,” Kott’s attorneys could have used the evidence that Allen “sexually exploited minors, and attempted to conceal that behavior by soliciting perjury” to impeach Allen’s testimony on cross-examination, the unsigned opinion states.
Evidence of Allen’s inconsistent statements about the bribes he allegedly paid Kott also “undermine Allen’s credibility while bolstering Kott’s,” the court found.
The indictment against Kott still stands because the majority of the three-judge panel said there was not enough evidence of “flagrant” misconduct by prosecutors.
Judge Betty Binns Fletcher disagreed and issued a two-page partially dissenting opinion explaining why she would dismiss the indictment with prejudice.
“I am deeply troubled by the government’s lack of contrition in this case,” Fletcher wrote. “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. … 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.”
Although the corruption crackdown on Republicans in Alaska suggests that federal prosecutors put politics aside while President George W. Bush was in office, an expert report in 2009 showed that 85 percent of locally elected officials indicted during Bush’s two terms were Democrats.
The number of charges brought against state and federal officials was roughly even, with 36 Democrats and 30 Republicans indicted by the Bush administration between 2001 and 2006.
Of the 309 indictments of local elected officials, 262 were Democrats, 37 were Republicans, and 10 were independents, according to statistics compiled by professors Donald Shields and John Cragan of the University of Minnesota.
Elliot Mincberg, chief counsel for oversight investigations of the House Judiciary Committee, said the chances of this happening randomly would be one in 10,000.