Appeals of 2 convicted Alaska ex-lawmakers heard

Lawyers for Kott, Kohring question judge's impartiality

Posted: Wednesday, April 15, 2009

SEATTLE - Corruption convictions of two former Alaska legislators should be overturned because the trial judge wrongly closed key hearings and issued faulty jury instructions, their attorneys told a federal appeals panel Tuesday.

Lawyers for former House Speaker Pete Kott and former state Rep. Vic Kohring also questioned U.S. District Judge John W. Sedwick's fairness and impartiality.

In arguments before a three-judge panel of the 9th U.S. Circuit Court of Appeals in Seattle, government lawyers defended Sedwick's actions and said there was ample evidence to convict Kott, R-Eagle, and Kohring, R-Wasilla, including secretly made tapes that were played to the juries at their trials in Anchorage in 2007.

Kott, a seven-term lawmaker until his defeat in the 2006 primary, is serving a six-year prison term for taking bribes. Kohring is serving 3 ½ years for bribery and extortion.

The panel did not hear arguments on a defense motion filed Monday for an order that government lawyers produce any evidence favorable to their clients that they have in their files.

That motion stemmed from the case against former U.S. Sen. Ted Stevens, R-Alaska, whose conviction for lying on public disclosure forms was tossed out last week after prosecutors were found to have withheld evidence. The government has 14 days to respond.

Defense lawyers noted that Sedwick was a next-door neighbor of Bill Allen, founder and chairman of the now-defunct oil field services business VECO Corp. and the government's star witness against Stevens, Kott, Kohring and other state legislators who were convicted of corruption in dealings on petroleum industry-related legislation.

Kohring's lawyer, John Henry Browne, also said Kohring and Sedwick's wife Deborah, a former state agency commissioner, had long been bitter political foes. Court standards require a judge to step aside when "a reasonable person" would find an "appearance of impropriety," Browne said.

Sedwick has said he cannot recall his wife mentioning or discussing the case with him.

"No fully informed person could have concluded" that the trial judge was required to recuse himself, countered Justice Department lawyer Kevin Gingras.

But Appellate Judge Betty Fletcher was dubious about Sedwick's claim of impartiality.

"There was an unusual animosity ... tremendous hostility ... not just a disagreement or differences of opinion," Fletcher said of the conflict between Kohring and the judge's wife.

Browne and Kott's lawyer, Sheryl Gordon McCloud, also argued that Sedwick should not have conducted closed hearings on short notice on whether to limit cross-examination of Allen.

Judge Sidney Thomas said he was concerned that the defendants' rights to a public trial might have been impinged by closing the hearings instead of just holding them outside the presence of the jury.

Judge A. Wallace Tashima also questioned why the hearing was closed if "they just didn't want this to get to the jury."

Gingras said the government wanted to protect continuing criminal investigations involving Allen.

"How else could you protect these investigations without closing it to the public?" he asked.

Brown countered that the hearing in Kohring's case did not focus on the investigations at all.

McCloud also argued that the jury should not have been instructed that Kott could be convicted for doing things he would have done regardless of whether he got anything from Allen, an instruction largely repeated in Kohring's trial.

In backing tax changes sought by the oil industry, Kott was pursuing what he thought was the best policy for the state, McCloud said.

Kott was taped saying he "was willing to cheat, steal, lie and sell his soul to the devil" to achieve passage of legislation for Allen, said Peter Koski, another Justice Department lawyer.

Koski argued that the government needed only to show that the money received by Kott was given in expectation of action in his legislative capacity.

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