Updated 2:49 p.m.
A former elected state official in Alaska today won a new trial on public corruption charges after a federal appeals court ruled that prosecutors suppressed information favorable to his defense, undermining confidence in the outcome of the trial.
The U.S. Court of Appeals for the 9th Circuit today unanimously vacated (PDF) the conviction of Victor Kohring, a former member of the Alaska House of Representatives. Federal prosecutors in Alaska shirked their obligation to turn over exculpatory and impeachment information to Kohring’s lawyers, the court said.
But the appeals court split over whether to dismiss the indictment itself. Two judges on the panel, Sidney Thomas and A. Wallace Tashima, said there was insufficient evidence to conclude federal prosecutors acted in bad faith. A third judge wrote in dissent, saying the case exemplified “flagrant” government misconduct.
Judge Betty Fletcher said prosecutors in the Kohring case acted with “reckless disregard” for their constitutional obligations, shielding thousands of pages of relevant documents from Kohring’s lawyers until after his conviction in the U.S. District Court for the District of Alaska in November 2007.
“Despite these egregious violations of basic prosecutorial responsibilities, the prosecution insists that Kohring’s trial was justly conducted and his conviction fairly obtained,” Fletcher wrote. “The prosecution’s refusal to accept responsibility for its misconduct is deeply troubling and indicates that a stronger remedy is necessary to impress upon it the reprehensible nature of its acts and omissions.”
Fletcher said dismissal of the indictment would serve not only as a deterrent, “but to release Kohring from further anguish and uncertainty.”
The Justice Department said it is reviewing the opinion and declined to immediately comment on it. A lawyer for Kohring, Michael Filipovic, an assistant federal public defender in Seattle, said he anticipated the circuit would side with Kohring.
"We're disappointed the majority did not dismiss all of the charges against Mr. Kohring," Filipovic said in an interview this afternoon. "There were many egregious and serious Brady and Giglio violations in this case. We felt the combination of how serious and how calculated these violations were that this was a case that called for dismissal."
Filipovic said he is hopeful the Justice Department will examine the prosecution closely and choose against a second trial for Kohring.
In November 2007, a jury found Kohring guilty on charges that included conspiracy to commit extortion and attempted extortion for allegedly taking cash and other benefits from an oil company executive in exchange for legislative acts to benefit the company. Kohring was a member of the Alaska Legislature from 1994 to 2007.
The prosecution of Kohring was part of the U.S. Justice Department’s investigation of public corruption in Alaska, a probe that included the false-statements case against the late Alaska Sen. Ted Stevens in Washington. The Stevens case was thrown out in April 2009 amid allegations of prosecutorial misconduct. A criminal contempt investigation of members of the prosecution team is ongoing.
The Kohring case was already on appeal in the 9th Circuit when Attorney General Eric Holder Jr. announced the government was abandoning the Stevens prosecution because prosecutors failed to turn over favorable information to Stevens’ lawyers. After the charges against Stevens were dismissed, lawyers for Kohring asked the 9th Circuit to order DOJ to turn over all favorable information.
In a rare move, the government asked the appeals court to remand the Kohring case to the trial judge for further proceedings. Kohring was freed pending appeal.
On remand, Justice Department prosecutors disclosed several thousand pages of documents, including FBI reports of interviews of government witnesses Bill Allen and Rick Smith. Allen is the former chief executive of an oil field services company called VECO Corp., and Smith was a VECO executive. The government’s case against Kohring was rooted primarily in recorded conversations between Kohring, Allen and Smith.
Kohring’s lawyers argued the newly disclosed information cast doubt on Allen’s memory and also revealed that Allen’s payments to Kohring were made out of friendship and pity and not through a quid-pro-quo relationship. The documents also showed differing recollections as to how much money Allen and Smith actually paid to Kohring.
The trial judge, John Sedwick of federal district court in Alaska, determined the government suppressed favorable information, but he said the evidence was not material and did not affect Kohring’s trial. Sedwick refused to dismiss the indictment.
The appeals court today disagreed on the materiality of the suppressed evidence and reversed Sedwick’s ruling.
“We are cognizant of the prosecution’s explanation that it disclosed the voluminous material out of an abundance of caution. And we recognize that the prosecution might not have had a duty to disclose all the information it did,” Thomas wrote. “However, a substantial amount of the material is either admissible on its face, could have been used as impeachment material, or is likely inadmissible but memorializes exculpatory facts or impeachment information that should have been disclosed.”