(CN) – The 9th Circuit on Friday vacated the corruption convictions and 3-1/2-year prison sentence of former Alaska state Rep. Victor Kohring, finding that federal prosecutors had withheld possibly exculpatory evidence, including the investigation of a key witness for sexual misconduct with minors.
Kohring, a Republican who represented Wasilla, is eligible for a new trial. A federal jury convicted Kohring in 2007 of conspiracy, bribery and attempted extortion after the FBI uncovered that he had accepted cash for lobbying the state House on behalf of the VECO Corporation, an oil field services company.
VECO executives Bill Allen and Rick Smith cooperated in the investigation and provided evidence against Kohring.
Video recordings presented at trial showed Kohring asking Allen for help with a $17,000 credit card debt, and Allen giving Kohring money to “put in Easter eggs for his daughter,” and “for his daughter’s Girl Scout uniform,” as quoted in the ruling.
Kohring moved for a full disclosure of all of the allegedly withheld evidence, suspecting a trend of prosecutorial misconduct in corruption trials of Alaskan officials. Two years before his death in 2010, Sen. Ted Stevens was convicted of corruption and lost his seat representing Alaska in the U.S. Senate. Stevens’ 40-year reign made him the longest-serving Republican senator in history. Just three months after his last day in office, a judge set aside the politician’s convictions and slammed prosecutors for severe “mishandling and misconduct.”
Allen, the VECO executive, had been a key witness in Stevens’ trial as well.
The 9th Circuit released Kohring pending his appeal and remanded the matter to the District Court to determine whether the government failed to disclose evidence, and, if so, whether Kohring was prejudiced by that failure.
Facing orders to provide Kohring’s attorneys with additional discovery, the government disclosed several thousand pages of documents, including FBI reports, undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda and police reports, the ruling states.
Kohring claimed the new information showed evidence that Allen had been investigated for sexual misconduct with minors, and that Allen’s memory about the amount of money he paid to Kohring was less than trustworthy. He also claimed the evidence showed that the payments were made “out of friendship and pity rather than a corrupt quid-pro-quo relationship,” according to the ruling. Other claims accused Smith of making inconsistent statements and having a “questionable” relationship with an FBI agent involved in the investigation.
The District Court denied Kohring’s motion for dismissal or a new trial, though it found that the evidence had indeed been suppressed and that some of it was favorable to Kohring. The court concluded that the information failed to “cast any doubt on the evidence of Kohring’s alleged $17,000 solicitation.”
On appeal, the three-judge federal appeals panel in Seattle disagreed.
“The prosecution’s suppression of evidence in this case ‘undermines confidence in the outcome of the trial,'” Judge Sidney Thomas wrote for the panel. “Had the information been disclosed to Kohring, for instance, Kohring would have been able to impeach Allen with evidence of his alleged sexual misconduct. Contrary to the government’s claim, this evidence would not have been cumulative in light of the jury’s awareness of the plea agreement Allen had with the government.
“Evidence of the sexual misconduct would have added an entirely new dimension to Allen’s possible motives for cooperating with the government. And, specifically, evidence that Allen attempted to suborn perjury from one of the alleged victims and attempted to make another unavailable to testify would have probably had a substantial impact on the jury’s assessment of Allen’s character for truthfulness.”
In a partial dissent, Judge Betty Fletcher argued that the majority did not go far enough in vacating Kohring’s convictions and ordering a new trial.
“Because this case exemplifies ‘flagrant prosecutorial misconduct,’ I would have this court exercise its supervisory authority to dismiss the superseding indictment with prejudice,” she wrote. “The majority opinion clearly establishes the substantial prejudice Kohring has suffered as a result of the prosecution’s misconduct in this case.”
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.