A federal appeals court should not second-guess its decision to keep in place a bribery case against a former Alaska state lawmaker who was accused in the corruption probe that snagged the late U.S. Senator Ted Stevens, the U.S. Justice Department argued this week.
The former official, Victor Kohring, in March asked the U.S. Court of Appeals for the Ninth Circuit to dismiss the criminal case against him that the court earlier sustained. The request marked a rare attempt to convince an appeals court to reopen a case that’s long since closed. Prosecutors said Kohring’s legal maneuvering "comes far too late in the day" and should be rejected.
Kohring "knowingly and voluntarily chose to plead guilty, admitting in open court to his abuse of the public trust in accepting bribes as a state legislator," assistant U.S. attorney Jo Ann Farrington said in papers filed with the appeals court on Monday.
Kohring’s request spotlights an investigative report, published in 2012 by court-appointed special prosecutor Henry Schuelke III, concluding that Justice Department misconduct pervaded the Stevens trial in Washington federal district court. The case against Stevens collapsed in 2009 amid allegations that prosecutors withheld information that would have benefited the defense. In the meantime, Stevens had been defeated for re-election. He was killed in a 2010 plane crash.
One of the lawyers in the Stevens case—Joseph Bottini, an assistant U.S. attorney in Alaska—played a lead role in the prosecution of Kohring, accused of unlawfully taking money from an oil services company executive in return for advancing legislation to benefit the company. Prosecutors in 2010 acknowledged that the government didn’t turn over to Kohring’s lawyers all of the information the trial team was obliged to disclose.
In 2011—before the publication of the Schuelke report—a Ninth Circuit panel found government errors in the prosecution of Kohring. The late-disclosed evidence, the court said, included information about "wildly differing recollections" about how much money two people paid to Kohring. The information undermined the credibility of the government’s chief witness, the court said.
But the divided appeals court declined to throw out the indictment. Instead, the panel granted Kohring a new trial. Writing in dissent, Judge Betty Fletcher called the prosecution conduct flagrant misbehavior. Fletcher voted to dismiss the indictment.
"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," wrote Fletcher, who died last year at 89.)
In fighting for a new judgment, Kohring’s federal public defenders, Michael Filipovic and Corey Endo, noted that the appeals court didn’t have in front of it the full scope of the government’s alleged malfeasance.
"The Schuelke report reveals that the government deprived this court and Mr. Kohring of the information relevant to the critical question of the intent of the trial prosecutors in Mr. Kohring’scase," the defense attorneys wrote.
Kohring’s lawyers contended the case presents "such extraordinary circumstances" that justify the recall of the appellate court’s mandate.
Justice Department lawyers on Monday called Kohring’s request "peculiar and circuitous." The Ninth Circuit, prosecutors argued, has already addressed contentions of misconduct rooted in the case against Kohring.
Kohring hasn’t suffered an ongoing "injustice" to warrant erasing his conviction, said Farrington, an assistant U.S. attorney in Anchorage.
"[T]he power of the court to recall a mandate is both extraordinary—in the sense that it is rarely appropriate—and limited, as the Supreme Court has made clear, and it is not called for here," she wrote.
Kohring "waited far too long" to ask the Ninth Circuit to "disturb the repose of his conviction," prosecutors argued.
"The right of the people of the State of Alaska to know that this case is settled—that the guilt of an elected public official who abused their trust has been finally established and that he has been punished for that crime—is now paramount," Farrington said.
Mike Scarcella can be contacted at email@example.com.