New trial for Kohring

WASILLA — Former Wasilla state Rep. Vic Kohring’s conviction on bribery and extortion charges was overturned Friday.

The U.S. Court of Appeals has ordered Kohring receive a new trial, saying that evidence prosecutors improperly withheld at trial could have helped Kohring.

The former seven-term Wasilla representative has been out of jail since June 2009 as the legal wrangling over his case continued. That information had not been disclosed only came out after the late Sen. Ted Stevens’ trial. Kohring is now in a situation Stevens was once in. The federal government has to decide whether to embark on a second trial. In Stevens’ case, it declined.

U.S. Court of Appeals 9th Circuit Judge Sidney Thomas wrote in the opinion overturning Kohring’s conviction that there were six types of evidence Kohring had argued could have been useful at his trial, most of which related to testimony from the men Kohring is accused of soliciting and accepted bribes from, former VECO executives Bill Allen and Rick Smith:

• Evidence Allen was investigated for sexual misconduct with minors.

• Evidence that questioned the reliability of Allen’s memory.

• Evidence that Allen and Smith gave Kohring the money out of friendship and not out of any expectation he’d work on their behalf in the Legislature.

• Evidence Smith made inconsistent statements and got too friendly with an FBI agent investigating him.

• Evidence that a government witness thought Kohring wasn’t corrupt.

Prosecutors had argued, and the U.S. Court judge in charge of the case agreed, that Allen’s dalliances with underage teens wouldn’t have been admissible and would not have helped Kohring anyway.

Thomas wrote that at least some of that evidence would have been admissible and it was by no means useless to Kohring, especially the part of sexual misconduct that involved Allen’s alleged attempts to cover his tracks.

“Evidence that Allen attempted to suborn perjurious testimony from one of the minors and attempted to make another unavailable for a trial would have been highly probative of his ‘character for truthfulness,’” Thomas wrote, citing the relevant criminal trial rule. Later he writes, “the alleged misconduct would have added an entirely new dimension to the jury’s assessment of Allen.”

The reliability of Allen’s memory comes mostly when talking about exactly how much money Allen and Smith gave Kohring.

Allen didn’t remember some payments he allegedly made and remembered different dollar amounts than Smith in other cases. The most famous of the payments was caught on videotape in Juneau’s Baranof Hotel.

Allen remembered the payment being somewhere between $700 and $1,000, but at other times remembered it as $500. Smith was more consistent and pegged the amount at $200, or so.

“This difference could have potentially been important to the jury, because Kohring testified at trial that he only received ‘around $100’ in Suite 604 that day,” Thomas wrote, noting that a jury might be more likely to believe Kohring since his account was so close to Smith’s.

The evidence that Allen paid Kohring out of friendship comes up in multiple documents disclosed after trial. At times Allen told investigators he never asked Kohring for any favors and at others he said his motivation for paying him was both a means to get favors and the act of a friend.

“What the statement tends to show is that Allen himself never told or otherwise expressed to Kohring that the payments were quid-pro-quo,” Thomas wrote.

The evidence surrounding Smith’s inconsistencies were dismissed quickly in Thomas’ ruling — it probably wasn’t admissible and probably wouldn’t have called Smith’s credibility into question.

Thomas also tossed out the claim about the coziness with the FBI agent. Smith allegedly went golfing with the agent and paid her entry fee in a golf tournament. The agent told investigators she was worried Smith might be suicidal.

Thomas writes that jurors knew Smith was working closely with the FBI and that the golf outing wouldn’t have told them anything new. That the agent was worried about Smith’s mental state was likewise not particularly noteworthy since the agent was not a trained expert in psychology.

Thomas also made short work of the former employee of the Alaska Attorney General’s Office who claimed that Kohring didn’t seem corrupt.

“The newly disclosed information tends to show the statement was made on Feb. 15, 2005 — more than a year before the alleged payments and solicitation discussed here. As a result, the former employee’s opinion in 2005 probably would have had little relevance to how the jury perceived Kohring’s mental state at the time of the misconduct,” Thomas wrote.

Thomas wrote that throwing out the conviction wasn’t using the full measure of his discretion. He couldn’t throw out the charges, he wrote, since he couldn’t prove that the U.S. attorneys who withheld information were guilty of misconduct.

The only dissenting judge in the opinion, Betty Fletcher, dissents on that point, saying that the case exemplifies flagrant misconduct. Fletcher notes that the U.S. attorneys had to be ordered to hand over the information and seemed unrepentant.

“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 wrote.

Contact Andrew Wellner at andrew.wellner@frontiersman.com or 352-2270.