Sunday, May 22, 2011

Alaska Discovery Problems - The Latest

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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