Kohring Trial Day 4 - The Afternoon

I'm going to try to hightlight some things that stood out for me. But let me warn you I didn't get enough sleep last night and my eyes are at half=mast as I write So, even more than usual, read with extreme skepticism.

Defense attorney Browne’s cross-examination of Veco VP Rick Smith seemed focused mainly on these points:

• These other guys made tons of money for sham contracts and Kohring got easter egg money.

Following up an opening argument theme, Browne highlighted how much money Smith made at Veco, and how much he got in his settlement. A lot of mocking of the $500,000 for attorney fees he got when he left Veco after the company was sold this summer.

Browne: Do you really think your attorney is going to go to trial for $500K.
Smith: I’m afraid more.
Browne: This is an ALASKA attorney? [as though this was absurd]

I happened to sit down next to John Murtagh, Smith’s attorney, because he was by the seat closest to the electrical outlet for my MacBook. I asked him how much of that was left. That was the only question I asked this afternoon he didn’t answer.

One wonders what Browne is thinking. Murtagh is representing a client with a $500,000 legal defense fund. Browne is representing a client whose credit card was maxed and collection agencies were threatening him. Which raises the question of who is paying for Kohring’s legal defense? Could that be a reason Kohring finally resigned from his house seat? Because it would have been an illegal contribution had he been a legislator? Or would it? Legal defense funds are exempt for all I know. If anyone reading this knows, please tell us in the comments and cite the law.

But back to the trial. Browne railed about the Anderson and Ben Stevens no-work Veco contracts - this time he had Stevens getting $243,250 from January 2002 to August 30, 2006. (He’d said Stevens got $250,000 per year for the contract in his opening statement.)

And all Vic got was some Easter egg money. Now, if I understand the law right (no guarantee at all) based on the prior trials, for a federal conviction there is a $5,000 threshold. We have so far:

$1000 in cash payment in the Douglas restaurant while Smith went to the bathroom.
$3000 Smith estimates the value of the internship for Vic's nephew.

There's some other cash, but it isn't clear to me how much and the evidence. I have to pay more attention and I'm too tired to go back through my notes tonight. I'm not clear on how much Easter egg money there was. Was it just the $100 bill that Allen asked from Smith? Or was there more?

There's the $17,000 problem Vic had with his credit card companies, which we have been told is solely based on his Mayo Clinic bills. The government didn't challenge that. In the video of Kohring asking for help on this (Ex. 11 I think), we have this statement from Kohring (as always, this is based on my very fallible note taking):

With Mayo clinic, my insurance didn’t cover it. Aetna only covers in West, not back East. I want everything completely above board. And please don’t feel like I’m abusing our relationship.

My state insurance plan covers care in more places than the West. Perhaps Mayo charges more than what the insurance company allows for that procedure and Kohring had to pick up the differnce, but I'm pretty sure it didn't get turned down because it wasn't in the West.

But it seems to me that for the jury, the government still has to demonstrate that this request counts. So far was we know, it never got past the request stage. I'm pretty sure that a sitting legislator going to a lobbyist and asking for $17,000 whether it is a gift, loan, or a job is pretty clearly a violation. But Browne has been pushing the point that they were friends. This argument didn't help Anderson or Kott, but they had much more damning tape that got played over and over. The prosecution, it seems, is going to have to show the jury that the job of a good lobbyist is to make every legislator feel like the lobbyist is his best friend. In any case, if the $17,000 counts, then the $5,000 threshold is met with this one item.

And then there's the truck he requested for his campaign. I Googled for Anchorage truck rentals. The tape was Aug 23, 2006. Since he needed it for the election, I figured he needed it for two months - September and October. But I couldn't book more than 40 weeks in advance on that first site, so I figured March 1-May 1 might be months with comparable prices. I'm sure Kohring could have rented a used
truck for much less in the Valley.

• How come these things aren’t mentioned in your plea agreement?

Browne had Smith go through his plea agreement with the government. This is the document he signed when he pled guilty that spells out the conditions of the deal he made with the government. It turns out there were two - a public one and a sealed one. The sealed one, apparently is now unsealed. Browne informed the Judge of this as though he thought the Judge didn't already know. There seemed to be two key points Browne was aiming at in his discussion of the plea agreement.
a. The first objective was, at least as I read it, to show that in the sealed agreement, it says that if Smith does a good job for the Government, the government will, not may, but will, request substantially reduced sentence (from the 135-180 months range listed.) Browne also established that the agreement protected Veco from being indicted, which meant that Allen could sell the company for a lot of money, and Smith could leave with lots of money. Both of these are good points. In all three cases, it would seem to me that Smith and Allen were the pushers and Kott, Anderson, and Kohring are the addicts. Are the addicts going to end up with bigger punishments than their dealers? Jurors were instructed not to think about sentences, but how can you not? The prosecution will have to make it clear that all the stuff about sentences is pure speculation and that's why they shouldn't think about it. But that assumes the defense is going to make this a part of the closing argument.

b. The second objective of going through the plea agreement seemed to be to make the point that the government was now charging Kohring with a lot of things that Smith and Allen hadn’t mentioned in their plea agreements. (Browne had to be told, as I understood what happened, to wait for Allen to talk about his plea agreement.) This all seemed to be leading to the key question Browne was raising: If it isn’t mentioned in the Plea Agreement, why is Kohring charged with it?

John Murtagh, who had a fat notebook on his lap that opened to the plea agreement pointed to a heading that read: This document does not set forth a complete statement of all relevant facts.

We can assume the prosecution knows this document pretty well.

• The battle over leading the witness, objections, and playing tapes.
  

Earlier in the trial, Browne said he noticed in the transcripts of the earlier trials, that a lot of the direct examination and cross examination questions seemed to be leading the witness. The judge acknowledged a certain flexibility that he was willing to allow if it didn’t prejudice either side and it was expedient. Well Browne has been calling the prosecution on this much more than did the defense attorneys in the previous two cases.

So I was somewhat surprised at what Browne did when he started the cross-examination. And the prosecution didn’t say much until near the end when he started to read whole sections. The prosecution did object now and then, but I think Browne got away with a lot more ‘fouls’ than did the prosecution today.

I talked about the tapes in the previous post. Not being able to play them seemed to really knock the wind out of Sullivan’s direct examination this morning. But this afternoon we saw a good example of why the tapes SHOULD be played. Browne kept reading the transcripts, but with a very exaggerated emphasis. The extreme to me was when he accused Smith of bullying Kohring as he read, “Don’t you DARE go whacko on us…” Making it sound like a serious threat. It seems to me the advantage of having the tapes is that the jury can hear exactly what the person said, including intonation. I was waiting for the prosecution to jump up and make this point. “He’s totally distorting the transcript. This is where we need the jury to hear what Smith actually said in his own voice and intonation. Not Browne’s interpretation of the transcript.” But they didn’t.

With the submission of transcripts as exhibits, the judge told the jury every time, that it was what they heard on the tape, not the transcript, that was the evidence. But Browne has now succeeded in getting the transcripts as the main evidence, not the tapes. The prosecution seems to have lost big time on this.



The paradoxical performance of Smith as a witness.

In the morning Smith spoke slowly and with a scratchy, gravelly voice. It wasn’t until the afternoon, when Browne asked Smith to explain the meaning of Perfect Storm in the context of oil and gas legislation, that he perked up and showed his stuff. He was suddenly articulate, knowledgeable, and sounded a little like the VP of a half billion dollar a year company. And from that point on he stood up to Browne, pointed out his mistakes, and didn’t allow Browne to lead him into answers he didn’t agree with. This was the Smith we should have seen in the morning when the Prosecution should have been lobbing him easy pitches. Through some bizarre switch, Smith looked, to me at least, much better in the cross examination than he did in the direct.


A follow up to yesterday's post where I asked what happened to Exhibit 14. I asked one of the Government's people if there was an Exhibit 14. The answer was no. I asked why. She didn't know, but got back to me later that it wasn't deemed relevant - it was about the nephew getting his job and they had enough on that.

Since it's world series time, I'd say we've completed the third or fourth inning. There's still a lot that can happen. I'm guessing Bottini will be pitching tomorrow for the prosecution.