Tag: Kohring

Summary of Posts on Ted Stevens Dismissal, Schuelke-Shields Report, and Responses

March 15th, 2012

Brady Reform Legislation

Schuelke-Shields Report: NACDL News Release

Schuelke-Shields Report: Statement from Catherine Stevens

Schuelke-Shields Report: Executive Summary

Schuelke-Shields: The Prosecutors Respond

The Schuelke-Shields Report

Some Further Thoughts On Judge Sullivan's Order

Brady is "Hot" – Order in Stevens

Alaska Discovery Problems – The Latest

Kott Decision Matches Kohring – Prosecutors Violated Brady

The Vic Kohring Catastrophe: Some Reflections Upon Rereading the Ninth Circuit's Opinion

Holder's Statement on the Stevens Case, Commentary, & More

DOJ Moves to Dismiss the Ted Stevens Case

Additional Item Regarding the Schuelke Report on the Ted Stevens case

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Brady is “Hot” – Order in Stevens

November 21st, 2011

The DOJ previously admitted to its failure to produce exculpatory information and "moved to set aside the verdict and dismiss the indictment of Senator Stevens with prejudice." (see here) Judge Emmet G. Sullivan now issued an order that notes

"(1) the significance of the government's decision to dismiss the indictment and not to seek a retrial; (2) the government's admission that it committed Brady violations and made misrepresentations to the Court during the prosecution of Senator Stevens; (3) the prosecutorial misconduct that permeated the proceedings before this Court to a degree and extent that this Court had not seen in twenty-five years on the bench; and (4) the likelihood based on events during and after the trial, including the information revealed by the Department of Justice in support of its motion to vacate the verdict and dismiss the indictment, that the prosecution team may have committed additional constitutional and procedural violations during the Stevens prosecution that had yet to be discovered or addressed, the Court appointed Henry F. Schuelke, III to investigate and prosecute such criminal contempt proceedings as may be appropriate against the six Department of Justice attorneys responsible for the prosecution of Senator Stevens…."

The court noted how Mr. Schuelke had submitted in camera a 500-page "report detailing the findings of his investigation." The court is allowing DOJ and attorneys for Senator Stevens "the opportunity to review the report." These individuals will be allowed to make objections as to why this report should not be released. The sealed materials cover matters related to the cases of Boehm, Kott, Kohring, and Stevens. The court concludes it's order stating, "[W]hile the Court will give appropriate consideration to any legal argument to withhold Mr. Schuelke's Report from the public, the Court notes that the 'presumption of openness may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." (citation omitted).

Order – Download Order in Ted Stevens on the findings of the special investigator

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Alaska Discovery Problems – The Latest

May 22nd, 2011

This blog previously looked at the Kott and Kohring cases coming from Alaska (see here). Both cases were connected to the Ted Stevens case, a case that DOJ eventually chose to dismiss after discovery violations were publicly shown. The Ninth Circuit in Kott and Kohring remanded the cases of these two individuals as a result of prosecutorial discovery violations. One judge dissented, arguing instead for a complete dismissal stating:

"I am deeply troubled by the government's lack of contrition in this case. Despite their assurances that they take this matter seriously, the government attorneys have attempted to minimize the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair trial — despite the the government's failure to disclose thousands of pages that reveal, in part, prior inconsistent statements by the government's star witnesses, …, regarding the payments Kott allegedly received."

And now the Ninth Circuit Court of Appeals denied the Petition for Rehearing filed by Peter Kott. Here again it was a 2-1 split, with Judge B. Fletcher voting to grant the petition and order an evidentiary hearing.

But what remains unknown is whether the government will in fact proceed with these two cases. If they plan to, then shouldn't they have already given the defense the exculpatory evidence it was entitled to receive? Are they waiting until trial? (see Jim Burke, Alaska Dispatch, Alaska Corruption Cases on Ice?). The Stevens, Kott, and Kohring cases are the very reason that Congress needs to codify discovery practices to assure that prosecutors comply with the important Constitutional mandate of providing an accused with due process.

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Kott Decision Matches Kohring – Prosecutors Violated Brady

March 24th, 2011

In an unpublished memorandum decision, the Ninth Circuit Court of Appeals found that Peter Kott's conviction, like Kohring, needed to be reversed because of Brady violations by prosecutors. The court in citing the Supreme Court's decision in Bagley said, that "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." The court remanded it to the district court to determine if the prosecution "acted flagrantly, willfully, or in bad faith."

Judge Fletcher concurred and dissented in part, finding a new trial an insufficient remedy. She wrote to express the view that the court's supervisory authority should be used and the indictment should be dismissed with prejudice. Judge Fletcher stated:

"I am deeply troubled by the government's lack of contrition in this case. Despite their assurances that they take this matter seriously, the government attorneys have attempted to minimize the extent and seriousness of the prosecutorial misconduct and even assert that Kott received a fair trial — despite the the government's failure to disclose thousands of pages that reveal, in part, prior inconsistent statements by the government's star witnesses, …, regarding the payments Kott allegedly received."

For prior posts, see here, here, here, and here. Peter Kott was represented by Sheryl Gordon McCloud of Seattle, Washington.

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Brady Problems Outside Alaska

March 15th, 2011

Following the Kohring Catastrophe (see here, here, and here), one has to start looking closely at other cases with alleged Brady violations. One such case is the Brown case pending in the 5th Circuit. Counsel for James A. Brown (Daniel K. Hedges, Sidney Powell, and Torrence E. Lewis) filed an extensive brief in the 5th Circuit that argues that exculpatory Brady material was not provided to the defense. (Brief- Download BROWN BRIEF FILED 122010). Jim Brown, a former Merrill Lynch executive was convicted of perjury and obstruction and is contesting these charges on several grounds. The case has had an interesting turn of events. It seems that the government filed a brief claiming that the defense failed to file a timely notice of appeal. Mind you this is after the government was given an extension of time to file its responsive brief by the defense. But it seems that the government had some mathematical computation problems, and on review they realized that Labor Day was in fact a federal holiday and the defense acted timely. The government, when notified, recognized its error and corrected it by requesting to file a corrected brief, not a confession of error. (See Motion here – Download Brown's OppositionToGMforLeave.) The important question here is whether there was a Brady violation. Did a thousand pages of evidence not get revealed until 2010 and if so, why?

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Ninth Circuit Court of Appeals Vacates Conviction Because of a Violation of Brady/Giglio

March 11th, 2011

The Ninth Circuit Court of Appeals vacated a defendant's conviction and remanded the case for a new trial as a result of violations of Brady/Giglio. (USA v. Victor Kohring opinion) The defendant "Victor Kohring, a former member of the Alaska State House of Representatives, was convicted in federal district court on three counts of public corruption felonies: conspiracy to commit extortion and attempted extortion under color of official right and bribery under 18 U.S.C. § 371 (Count 1), attempted interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a) (Count 3), and bribery concerning programs receiving federal funds in violation of 18 U.S.C. § 666(a)(1)(B) (Count 4). Kohring was acquitted of Count 2—interference with commerce by extortion induced under color of official right in violation of 18 U.S.C. § 1951(a)." The Ninth Circuit court held: "We agree with the district court that the prosecution suppressed favorable material, but we respectfully disagree with its conclusion as to materiality. We conclude that the newly-disclosed information, when viewed collectively, is material and that the prosecution violated Brady/Giglio. We vacate Kohring’s conviction and remand to the district court for a new trial."

Addendum – Court stated "On remand, the government disclosed, for the first time, several thousand pages of documents, including 'FBI 302 reports,' undated and dated handwritten notes from interviews with Allen and Smith, e-mails, various memoranda, and police reports."

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Tag: Kohring

Summary of Posts on Ted Stevens Dismissal, Schuelke-Shields Report, and Responses

Brady is “Hot” – Order in Stevens

Alaska Discovery Problems – The Latest

Kott Decision Matches Kohring – Prosecutors Violated Brady

Brady Problems Outside Alaska

Ninth Circuit Court of Appeals Vacates Conviction Because of a Violation of Brady/Giglio