Kott Trial Day 10 - The Afternoon

Overview:

• Peter Kott Jr. loses some of his luster under cross examination and delivers an infomercial on hardwood flooring
  
• Ethan Berkowitz, witness for the defense [April 26, 2008: If you are coming here from EthanBerkowitz.blogspot.com, you should note that Berkowitz did not come voluntarily, that Kott wanted Berkowitz to say that he did not vote the way the prosecutors told him to vote, and essentially Berkowitz was not a friendly witness for Kott. The details are below.]
  
• Brooke Miles, returned as a defense witness

From what I can tell the defense was trying to make several points today:

1. Pete Kott wasn't all that influential in the legislature and couldn't deliver what Veco wanted anyway.

In the morning session, Dr. Clive Thomas' testimony seemed aimed at showing that Kott wasn't on key committees and that at the end of the session things are chaotic and he didn't have much influence. Ethan Berkowitz was the Democratic leader in the house, and the legislator who stood up and protested when Weyhrauch voted the wrong way and then had the vote rescinded so he could vote the right way - you can hear Weyhrauch say he made a mistake and so they should revote, Berkowitz's passionate speech about the influence of lobbyists who call legislators on the floor, and Weyhrauch's indignant response here. It all has much more meaning now that we've heard the story from the other side.

On this link you can hear Kott talking to Smith right after Weyhrauch voted 'wrong.' It appears Kott is calling from the floor and Smith is apparently watching on Gavel to Gavel from 604.
Rep. Pete Kott to Veco VP Rick Smith phone call

Today the defense attorney Simonian questioned Berkowitz:
Q: Did Pete Kott get you to trade votes?
Berkowitz: I don't have the authority to trade votes.
They had him read the transcript where Kott said he got him to trade votes, and Berkowitz again said it wasn't true.

This appears again to be trying to show that Kott didn't have the power to deliver to Veco.

As I said in the previous post, I don't think this point matters, legally. The jury instructions in the Anderson trial were that it didn't matter whether a) if he could deliver or b) if he did deliver.

Here's a section of an earlier post on charges from the indictment.

• (A) Kott and Weyhrauch "unlawfully obtain[ed] ... money and other property... in agreement for the performance of official acts, in violation of Title 18..."

As I understand it, from the Anderson trial, it's the agreement, not the actual carrying it out, that matters.

2. That the $7,993 check that Allen wrote to Pete Kott in summer 2006 was NOT to pay for Pete Kott Jr. to continue on as campaign manager as the prosecution said, but rather was really advance payment for two flooring jobs Pete Jr. was to do. One for a Sharon Durant and the other for Rick Smith.

3. That Pete Kott never asked for a poll or wanted a poll or had any use for a poll. Thus even if Dittman did a poll that was paid for by Allen, Kott was not part of a deal to get a poll, and thus didn't enter into any agreement for the poll. Thus that charge is not proven. They also wanted to show that did not follow Dittman's advice to emphasize Kott's experience and accomplishments for the district.


In cross examination, the prosecutors very politely, but relentlessly exposed inconsistencies.

First about the money. Marsh started by reiterating Peter Jr.'s comment about his deep commitment to doing good work. Then asked whether getting paid a year in advance (for Smith's flooring) wasn't a bit unusual. And you haven't done the job yet? No. And you haven't given the check back? I plan to.

How did it come that he was getting such an advance? Well, he didn't have enough money to not do his regular work much longer while he worked on the campaign, and had told his dad he'd have to get paid or quit so he could pay his family's bills. So Allen wrote this check for an advance on these two projects. [I can accept that perhaps Allen might have advanced money for Smith's flooring, though that is a stretch; I never understood why Allen would be paying for the other person's (Sharon Durant) flooring.]

But then Prosecutor Marsh asked Peter Jr. why he wasn't just paid out of campaign money. There wasn't enough money, well, not enough to pay me, enough for signs, fliers, etc.
Marsh: Would you be surprised to learn the campaign had plenty of money?
And then he went on to show that the campaign had a surplus of over $15,000 and that lots of money had been donated to charity.
Marsh: Who filed the seven day APOC report?
Peter Jr.: I didn't file paper work. I handled grassroots stuff.
M: But you were campaign manager.
PJr: That was not in my scope. My job is to get voters. I'm no accountant.
M: But you run a business...

Basically, the idea that the money was for flooring looked pretty shaky, and with two paid staffers who filed the APOC reports and ordered polls without Peter Jr's knowledge, it was hard to believe he was the campaign manager in the traditional sense. So if he knew about the polls or not really wouldn't matter.

The prosecution also pulled out a campaign brochure that was sent out after the polling data came in that highlighted Kott's experience, as Dittman had advised based on the polling. This attempt to show that the campaign did take Dittman's advice was less convincing, since any incumbent is going to push his experience. But Peter Jr. said he hadn't been involved with the flier, reinforcing the idea that he really wasn't in charge.

The defense seems to me to be picking at minor points to discredit the prosecution's case. And the prosecution is very well prepared each time. Again, as in the Anderson case, the power of the government is pretty awesome. That's a good thing if they are going after real crooks, it is scary if they are going after the wrong people, or people they don't like.

Peter Jr. did spend a fair amount of time, in answer to his defense attorney Wendt's questions, talking about the hardwood flooring business. The different kinds of wood, how the wood takes time to dry sufficiently, kinds of coatings for the wood. I'm not sure what the point was - perhaps to show his mastery of the subject and his love for it. The prosecutors didn't object about him as an expert witness on flooring (as they did about Thomas' status as an expert earlier in the day), and after a while I thought I was listening to an infomercial.

Other people in the court today included: former state legislators Vic Fisher and Andrew Halcro. Fred Dyson was back. Weyhrauch's attorneys were there. Kott family members. A lot of press. And others whom I didn't recognize.

And at one point, prosecutor Marsh was asking a question when someone sneezed, "Later you God bless got three thousand...."

Someone told me that Pete Kott would be a witness. It didn't happen today. We'll see if it happens tomorrow.