Trying to Watch "Fair Game" with an Open Mind

[This is a long post.  Most of you won't read it all.  It's long though, because it shows step-by-step how a rightwing website neutralizes truth, in this case how they make bogus claims against the movie Fair Game - the name is so apt - to neutralize some of the most shocking known behavior of the Bush Administration.  This is probably longer than it need be, but finding the truth, despite what people say, doesn't come in bumper-sticker brevity.]


We saw the movie Fair Game last week. It tells a story* about the active undercover CIA Agent Valerie Plame who was outed by the White House in July 2003.  Her husband, former US Ambassador Joe Wilson, had been hired to determine if Niger had really supplied yellow-cake uranium to the Iraqi government to be delivered in those now infamous aluminum tubes.  (*I think we have to stop using "the" story for anything, because even without the ideological split in the US, it is ever clearer that different people relate different stories about the same events)

Contributing to my state of mind, was the fact I had just heard an NPR story called the The Great Textbook Wars that afternoon.  From NPR:

In 1974, Kanawha County, West Virginia was the first battleground in the American culture wars. Controversy erupted over newly-adopted school textbooks. School buildings were hit by dynamite and Molotov cocktails, buses were riddled with... [The full article is at WNYC]

This piece had interviews with the people who began the boycott against the new textbooks which included a more modern and diverse group of authors and ideas than the previous texts had.  A couple of people cited their 1974 protest as the beginning of the Tea Party movement.  From the piece I gathered that the protesters were generally not well educated, their world view was dominated by religion, and they were not happy about the changes in their lives being brought about by integration - which was reflected in the textbook changes.  We also heard from teachers who said they needed a curriculum which better reflected their students, that discussed more than just dead white males in literature and history and science.  BUT, it was also clear that the catalyst for the protesters was a feeling of being disrespected.  They felt these changes were being forced on them without any input from them and they weren't going to take it any more.  Perhaps they couldn't stop the national civil rights legislation of the 60s, but they could stop their local schools from imposing new texts which raised questions they didn't want their kids exposed to.

Yikes, I'm trying to explain the link between textbook wars and Fair Game without making this too lengthy.  Much of this has been sitting for a week as I let the ideas naturally rise.  I don't think I used enough yeast.  But I need to get this done.  Let's just say the textbook wars reminded me once again that people do things for reasons and when people get pushed too far, emotion blocks out any chance for reason to triumph.

Even without the textbook story in my head, my tendency is to play the devil's advocate and think about other interpretations of the story.  I can't watch anything - even something I agree with - without thinking about how someone with a different perspective would react.  

As I watched Fair Game, with the radio show fresh in my mind, I could hear the Tea Party supporters of Joe Miller shouting out "Lies, Lies!" throughout the movie.  I did wonder what they would have said about a Joe Wilson talk to college students where he warned about government becoming a tyranny and how it would get worse if they didn't pay attention and stand up and protest.

We're in a period of American history - one that is not unique in this respect - where 'truth' is limited to facts that don't challenge 'my' world view.  This affects those on all points of the political spectrum, though some are more prone to be ruled by raw emotion rather than hard facts and logic.  The key is to find a path which blends both the passion that stirs us to do things with the rationality that gets us to do them effectively.  We can't let emotion blind us to the 'truth.'

In Fair Game's portrayal of the Valerie Plame case, even recognizing that Hollywood leaves out much of the story and enhances it for dramatic effect (so do politicians and all of us, of course), a few facts can't be disputed.

1. President George W Bush used evidence - the aluminum tubes and the non-existent yellow-cake uranium - to justify going to war with Iraq, even though the CIA was telling them couldn't be true.  In one scene Scooter Libby badgers a CIA analyst - Are you 100% sure?  99% sure?  96% sure?  If you aren't 95% sure, are you willing to risk our security?  
   
   Even if we accept the notion that the White House was convinced this was true - and not simply a plausible ploy for getting the American public to go along - it turns out later that they were, in fact, wrong.  There were no weapons of mass destruction.  .
   
   
2. The White House exposed the identity of an active undercover CIA agent with open projects - and informants in different parts of the world whose lives were jeopardized and possibly lost because of the outing.  Besides being a federal crime, this also forced the resignation of an experienced agent with active, needed knowledge, and endangered CIA contacts around the world.  While the White House ran a misinformation campaign that suggested Plame was a third rate agent who didn't do anything, they do the same sort of campaign with anyone who is in their way - ie the Swift Boat campaign against Kerry.
    
3. Scooter Libby was tried and convicted.  And his sentence was commuted by the White House
   

These 'truths' are all on the record.  You can quibble about different details of the movie - it had 90 minutes or so to present its narrative - these three things are indisputable..


Or so I thought.  While prepping this, I ran across the blog Newsbusters - a right wing blog set up to debunk liberal lies - which reviewed the movie Fair Game


Here's what Newsbusters tells us about NewsBusters.org

Welcome to NewsBusters, a project of the Media Research Center (MRC), the leader in documenting, exposing and neutralizing liberal media bias.
In August of 2005, with the assistance of Matthew Sheffield of Dialog New Media, the MRC launched the NewsBusters blog to provide immediate exposure of liberal media bias, insightful analysis, constructive criticism and timely corrections to news media reporting. [emphasis added.]

You can read the Wikipedia post on NewsBusters which emphasizes the ideological stance (and was itself attacked by Newsbusters.)   Even if you read NewsBusters itself, it is clear  that this is a site set up to promote conservative Republican causes first, and not to expose the truth.

The trend I see is this:

1. Attack the opponent - lying is totally within the rules
2. If your opponent fights back you have a couple of choices
1.  Attack again
2.  Change the subject
3.  Say that nobody can be trusted - raise questions about the honest folks so the dishonest folks look equal.  This is what they mean by 'neutralizing'.

The point is to totally sully the water so that any sort of authentic discussion is impossible.  Then the loudest and most persistent wins.

This works to the advantage of the conservatives because their reserve of funding is deeper.  Sure, liberals can raise a lot of money too, but in part that's because the money people want everyone - people who agree with them and those who don't - to be indebted to them.  They bet on all the horses - the only sure way to win no matter who's in office.  The Republicans have also just done a much better job of spreading their message.

I go through all this because I'm pretty sure that Fair Game is reasonably accurate on the basics if not every cinematic detail.  Newsbusters attacks Fair Game's validity by making bogus claims on minor issues and distracting the reader from the really serious issues the movie raised.  Neutralizing them as Newsbusters says its goal is.   Few people will check their out-of-context quotes..  This stirs up their partisans and sows seeds of doubt among those who don't know the background and who assume that no one could lie so shamelessly.  In the end, the casual reader goes away thinking, "another biased movie.  You can't believe anyone these days." Neutralization accomplished.  But what if they are telling the truth?  Then the truth has been neutralized and lies are equal to truth.

Look at  Newsbusters' damning conclusions about Fair Game:

1. Liman [the movie's director] is being dishonest in order to push a left-wing agenda.
2. Liman is being dishonest because the factual story is far less interesting than the fictional account released Friday.
3. Liman is completely ignorant of the facts, and too lazy to do even a little research.

The message is:  it's all lies, there's nothing there, they're stupid and lazy.

How did they reach these conclusions?  They made them up.  They took several ideas from the movie and declared them to be false with the help of out-of-context quotes from the Robb-Silbermann Report on WMD's. 

The Daily Caller's Jamie Weinstein did the legwork in demonstrating just how far from the truth some of the film's central claims are. Chief among them, perhaps unsurprisingly, is that Scooter Libby, Vice President Dick Cheney's chief of staff, and other White House officials exerted political pressure on intelligence officials to cherrypick intelligence favorable to claims that Iraq possessed weapons of mass destruction.

In fact, not only did Libby do no such thing, but according to the Robb-Silbermann Commission, which investigated the intelligence behind the Iraq war, "The analysts who worked Iraqi weapons issues universally agreed that in no instance did political pressure cause them to skew or alter any of their analytical judgments."

What??!!  First, there is no contradiction.  The Robb-Silbermann Report quote does NOT say there was no pressure exerted.  It clearly says that the intelligence officials didn't "skew or alter any of their analytical judgments" because of political pressure that did exist.  

They damn Liman because he didn't read the report:

Weinstein asked "Fair Game" director Doug Liman if he had read the Robb-Silbermann report. He had not.

Liman was the director.  It was his job to take the script (not write the script) and make a movie from it.  The report is 601 pages.  Why should Liman read it?  But I'm sure the author of the book  the movie was based on read the report.  Why do am I sure?  Because the book was written by Valerie Plame and her husband Joe Wilson assisted her.  They had a huge stake in knowing every detail of this report and Wilson testified before the commission and is cited in the report. And probably the script-writer read a lot more of it than did anyone associated directly with the Newsbusters article.


Then Newsbusters proceeds with more obfuscation.

But other blatant falsehoods pervade the film that could be disproven with a simple Google search. For instance, it is near-common knowledge by now - except among politically interested Bush-bashers - that neither Libby nor then-White House advisor Karl Rove leaked Wilson's wife's name to the press. In fact, State Department official Richard Armitage dropped the name to the late columnist Robert Novak, setting off a political firestorm.
But according to Weinstein,

You wouldn’t know this by watching Liman’s “Fair Game,” since Armitage is nowhere to be found — except in script at the very end. The narrative that Karl Rove and Dick Cheney’s Chief of Staff Scooter Libby were nefarious behind-the-scenes players intent on destroying innocent reputations while pushing the nation into war on false pretenses fits too nicely into Liman and Hollywood’s leftwing vision. You can’t, after all, let facts spoil a cinematic anti-Bush diatribe.

OK,  neither Rove nor Libby contacted the media and directly told them. And the movie doesn't say they did. But it is also 'near-common knowledge' that Armitage worked closely with them both and would never have leaked the information exposing the identity of an active undercover CIA agent on his own, without their assent.   Newsbusters conveniently fails to mention that Libby was convicted and President Bush commuted his sentence because of his actions portrayed in this movie.  Here's what Fox News wrote (yes, that Fox News) about the conviction:

I. Lewis 'Scooter' Libby Guilty on Four of Five Counts in CIA Leak Trial

Libby was accused of perjury, obstruction of justice and lying to FBI agents and the grand jury about how he learned about Valerie Plame's identity and whom he told. Plame is the CIA employee whose husband. Amb. Joe Wilson, was sent to Niger by the agency to investigate claims that Iraq had tried to buy yellowcake uranium.

The Newsbusters article continues with more twisted truth:

According to Weinstein, the fictional Wilson "suggests his report to the CIA definitively debunked the Iraq-Niger claim." In fact, Bush's statement was accurate: British intelligence had discovered just that. A bipartisan report from the Senate Intelligence Committee found in 2004 that Wilson's report "did not refute the possibility that Iraq had approached Niger to purchase uranium” and "did not change any analysts’ assessments of the Iraq-Niger uranium deal."

Wait, wait, wait.  The movie didn't dispute that the British reported this.  But the movie said that the British report was wrong.  Which it was. 

Here's the paragraph from the  Report of the Select Committee on Intelligence on the U.S. Intelligence Community’s Prewar Intelligence Assessments on Iraq the first quote is lifted from:

When the former ambassador [Joe Wilson] spoke to Committee staff, his description of his findings differed from the DO intelligence report and his account of information provided to him by the CIA differed from the CIA officials' accounts in some respects. First, the former ambassador described his findings to Committee staff as more directly related to Iraq and, specifically, as refuting both the possibility that Niger could have sold uranium to Iraq and that Iraq approached Niger to purchase uranium. The intelligence report described how the structure of Niger's uranium mines would make it difficult, if not impossible, for Niger to sell uranium to rouge [sic] nations, and noted that Nigerien officials denied knowledge of any deals to sell uranium to any rogue states, but did not refute the possibility that Iraq had approached Niger to purchase uranium. 

The movie didn't deny the possibility that Iraq might have approached Niger for uranium, only that if they did, Niger never sold or gave them any.  And even if this allegation about the movie were true, it's a relatively minor point compared to the ones I listed above. It's like disputing that the man had dirty fingernails and skipping the fact that he murdered someone. 

The second quote is also shown to NOT support Newsbusters contention:

(                )                                                              PARAGRAPH DELETED                                                             
(                )                                                              PARAGRAPH DELETED                                                             
(                )                                                              PARAGRAPH DELETED                                                             

(U) Conclusion 13. The report on the former ambassador's trip to Niger, disseminated in March 2002, did not change any analysts' assessments of the Iraq-Niger uranium deal. For most analysts, the information in the report lent more credibility to the original Central Intelligence Agency (CIA) reports on the uranium deal, but State Department Bureau of Intelligence and Research (INR) analysts believed that the report supported their assessment that Niger was unlikely to be willing or able to sell uranium to Iraq.

The three paragraphs before this conclusion are deleted, so we have to go from the little that is there.  But it is clear if you read this, that analysts' assessments weren't changed because they already believed there was no uranium deal between Niger and Iraq.  His report "lent more credibility to the original" CIA reports.  The only way that could be true is if those reports said the deal didn't take place.  And the quote clearly says the INR didn't think Niger would sell the uranium to Iraq.

So everything in these two quotes is consistent with what was in the movie.  But not too many Newsbusters readers are likely to go to the original source to check on a narrative they already want to believe.

This attack on the Fair Game, in my mind, is the same as claiming Obama is a Kenyan citizen and a Muslim.  The point is to raise questions about clear, factual events that you don't want people to believe.  To destroy the good name and character of people who oppose you.  To raise questions about their message.  What don't the Newsbusters folks want people to believe?

1.  People close to Karl Rove and VP Cheney, people who would not have acted without Rove's and probably VP Cheney's approval (of course it would be given with plausible deniability) exposed an active CIA agent, a serious violation of the law and breach of US Security.  An action that the conservatives would have lynched a Democratic White House had it done the same thing. 

2.  That there was clear evidence that there was no uranium deal between Niger and Iraq and the aluminum tubes were not for rockets to launch nuclear weapons, yet President GW Bush used this as a key justification for going to war against Iraq.  In fact, Secretary of State Colin Powell knew it was false and did not mention the Niger uranium in his speech to the United Nations. (See the Robb-Silbermann report, footnote 210 on page 213 - and no, I didn't read the whole report either, I just know how to use 'search.')

3.  The attack on Valerie Plame clearly came from the White House, most probably Rove and Cheney were involved, and was in retaliation for Plame's husband publicly refuting the lies the White House was using to justify going to war against Iraq.

4.  Scooter Libby was convicted - presumably as the fall guy to protect Rove and probably Cheney - and then his sentence was commuted by President Bush.

The point of this post is NOT to have a pissing match over facts with people who don't care about seeking out truth.  You can't win a game like that against people who have unlimited resources and no shame.  The point is to illustrate where we are in the US today - nearing a dark age when truth is suppressed ruthlessly and the common good is trashed for private gain. Over and over again.  In every sector from religion to oil to banking, and yes, even in academia. 

The attack on the movie attempts to make readers think the movie is total fiction, but it doesn't acknowledge or refute these facts I've outlined that the movie clearly presents. Facts that should raise a hue and cry from anyone who believes our leaders should obey the law, be fiscally responsible, and that human life is sacred and should not be sacrificed needlessly. (The war in Iraq has killed about 100,000 Iraqi civilians.)

But we shouldn't  be surprised they would attack the movie.  If  Rove and Cheney's people were willing to expose an active undercover CIA agent in retaliation for her husband telling the truth, there's probably little they wouldn't do to defeat their perceived enemies.  Newsbusters behavior here isn't that different from what the movie is about - attack the messenger to suppress the truth. 

Their tactics to replace 'truth' with their own version of reality is working.  People who oppose them are attacked and have to 'prove' their innocence (a traditional American value, right?) and so much mud is thrown that most people throw up their hands and say, "They're all corrupt."  And that's a victory for the corrupt.  Because their corruption isn't as problematic if the voters think that the honest folks are corrupt too.

And lots of writers think twice before posting on something like this out of fear they will be attacked.  This blog is off-the-radar enough I don't think I have to worry.   I'm not pointing out the inconsistencies because I think anyone will change their mind.  I'm doing it to illustrate how public discourse has been horribly polluted so that truth becomes totally indistinguishable - for many - from fiction. 

Yes, Valerie Plame was declared by Karl Rove to be "Fair Game" for this sort of nasty, democracy destroying attack.  But Plame, thanks to her husband, didn't fold.  She did what President Obama needs to do.  They fought back.  So, put Fair Game on your movie list.

Link Clickers Beware - But You Can Opt Out

[Update, August 12]:  An anonymous comment provided a link to the FTC guidelines covering endorsements and testimonials. You can see the relevant section for bloggers in the third comment at the end of this post. It sure looks to me that this totally violates those guidelines.]

BloggerBuzz had a post recently announcing a new way to 'monetize' one's blog:

. . . Any time you write about a product or service, you're connecting your audience to that product. If someone makes a purchase, the seller benefits from your written word—you influenced a purchase. There are thousands of websites that will pay you a fee for any business you bring them through a form of online advertising called affiliate marketing. With affiliate ads, web publishers are compensated for driving online actions.

VigLink is a content monetization company that makes affiliate marketing very easy for bloggers. We offer a simple snippet of code you can install in your blog that automatically and transparently does all the work for you. We've catalogued and signed up for more than 12,500 affiliate programs and we collect all the performance information and deliver you a single integrated payment. In return, VigLink takes 25% of the incremental revenue you earn. [emphasis added].

There's also a two minute video.




What's wrong here?    Most might say, nothing at all.  This is the American way of life.  Nothing has value unless it has a price.  Unless we can make a buck off of it.  People who blog for free are losers.  Well, here are the problems I have:

1.  The reader doesn't know the blogger is being paid and thinks the endorsement is uninfluenced by a payoff.


When I was a cab driver in LA, a fare once wanted to go to a strip club.  When I dropped him off, the club guy came to my window and gave me $5 and told me it was always $5 per person I dropped off.  So if someone asked me if there were any good clubs around, you know where I'd take him.

This is the same sort of problem these unmarked links set up.  The reader thinks it's a genuine endorsement uninfluenced by the promise of a payoff. Currently, there are ads in some blogs, but they are labeled as such.   Readers suspect or know that the blogger gets a commission on these. 

In their FAQ's, the company writes this about reader awareness:

Will my users notice?

Likely not. VigLink does not change the user experience one bit. No links are inserted or removed on the page, there are no double-underlines or pop-ups, and mousing over a link looks "clean."

But, it's really dirty is what they seem to be saying.

This is like tv shows and movies that pay film makers to embed their products in their shows.  So buying Full Circle Farm produce no longer is an integral aspect of the character, but rather they wrote that in because FCF has paid them for this stealth ad.

I've gotten emails offering me payments if I plug a product on my blog and they will pay more if I don't say that I'm getting paid.  The advertisers believe that if the readers don't know the bloggers are getting paid, they are more likely to believe.

In the FAQ's, they even tell merchants:

Additionally, VigLink increases confidence, click-through rates and conversions by making the links to your site appear to be "natural" links instead of obviously embedded affiliate codes. [Emphasis added]

They are selling the fact to merchants that they are deceiving viewers into thinking these are natural links.

As a viewer, YOU CAN OPT out.  There's a page where if you click on the button, it says

If you'd like to disable VigLink on sites that you visit, click the button below.

I'm not sure what that means.  I have no idea how the average viewer would ever find the page, or even know there is something to opt out of.  Does it mean they won't collect data on you?  Does it mean that the blogger doesn't get his payoff if you purchase something through his link?  There's a link there to a long privacy policy which includes statements like:

We do not knowingly collect personal data from children under the age of 13. If you are under 13, please do not give us any personally identifiable information.  [Emphasis added]

How many kids read privacy policies?  How many adults read privacy policies?  How many people even know this company exists? 


2.  The blogger starts pushing products, not because he really likes them, but because they will make him money.

Behavioralism is a school of psychology that tells us, among other things, that people repeat behaviors that are rewarded.  So, if bloggers get paid for writing posts that get people to click on links and buy products, they will start writing more such posts.  And eventually, some bloggers will recommend products they don't really believe in because they know they will get rewarded.  


3.   Trust in Blogs Will Turn to Suspicion

Before this new company arrived, readers knew that if they clicked on an ad, the blogger would get some small amount of reimbursement, but if they clicked on a link in the post, there was no compensation.  They could reasonably assume that the blogger put in the link because he believed it was in the reader's interest to click on the link.

Now though, as surfers begin to understand this new system, they will become suspicious of all blogs and bloggers (and probably the websites of newspapers and everyone else will do this as well.  Maybe they already do.)

Even if bloggers, like me, post announcements saying that we do not have paid links, there's nothing to stop people who DO have paid links from putting up the same announcements. 

Note:  People should be skeptical about what they read on blogs.  But there has been a sense of innocence in many blogs that are written by people who just enjoy sharing their ideas and without the corrupting influence of money. 

4.   Bloggers are probably also being ripped off

So, if VigLinks is willing to hide from the viewer the fact that the blogger is getting paid, why should we be surprised that they are also snookering the blogger?

• Blogger pay is probably pretty tiny.  One reason putting up ads is not even a temptation is that I know I would get so little revenue from the ads anyway.  If I'm going to sell out it's going to be for a lot more than $50.   I looked into google-ads  when I first started blogging and learned that only blogs with at least thousands of daily hits are likely to make any real money.  The ads for this company don't talk about how much a blogger would actually get.  I looked through more of the links on the website.  You get vague things like:

How does payment work?

VigLink will pay by check in the United States and PayPal anywhere it is available. We are expanding our payment options over time. VigLink will ask for payment information and pay publishers as soon as their balance reaches $25. VigLink typically takes 25% on commission earned by publishers. Often publishers still receive higher payouts due to collective bargaining and high volume commission levels. We will issue an IRS Form 1099 to any publisher who makes more than $400 in a fiscal year.

What percent of bloggers will even earn that $25?  If they don't, what happens to the money?  So, we don't really know how much you get per click.   Actually, another FAQ says you get paid if someone makes purchase only.  It doesn't say how much.  Instead it says,

How does VigLink make money?

You earn a commission for every sale made on a linked site. VigLink takes a small fee from that commission and then passes on the rest to you.

Small fee?  It's true it will be a small fee in absolute cents.  But it is 25% of what the blogger earns.  Gryphen at Immoral Minority said that Tank Jones and Rex Butler's commission from Levi Johnstons' earnings is only 20%.  I don't know if that's true, but Gryph seemed to think that was a significant chunk.  This company takes 25%.

But if the blogger doesn't make much money at all, what's 25% of nothing?  Well, there's something called the salami technique:

Employee embezzles large amount of money by stealing small sums from many different accounts.

This linking scheme isn't stealing because they tell the blogger and the blogger agrees to it. Though they intentionally do not want the viewer to know what is happening.   But, the vast majority of bloggers who might sign up for this probably wouldn't make much money.  It's possible a lot won't even reach the $25 threshold necessary for them to write the first check.  And as I asked earlier, what happens to this below threshold accumulation?  Why don't I think they'll donate it to decrease our national budget? 

I'm guessing, based on talking to people who have google ads, most people won't make more than, say, $50 a year, and that's probably high.  A few of the very big blogs with  thousands of hits a day, might do well.  But if this company got a million blogs to sign up - and it's really easy to add the code - and they get 25%, and if that amounted to about $10 per blog, that would be $10 million per year. (Hatrickassociates claims there are 400 million active English-language blogs in 2010, so my estimate is probably way low.)

So a scheme like this would

• pollute general trust in blogs with 
• minor benefit to most bloggers who sign up, 
• cause deception for readers, and 
• cause companies to pay a salami slice commission for links that they had in the past for free. 

The main beneficiary would appear to be this new company, and, probably Blogspot, WordPress, and TypePad also get a cut.  I couldn't find any mention of that.  


It seems to me that blogs with stealth links like this should post a notice at the top of the blog:

"This blog may receive kickbacks from merchants if you click from here and our reviews of products may be biased because of that."

House Judiciary - On Crime Evidence and Campaign Expenditure

(H)JUDICIARY		STANDING COMMITTEE *
Apr 07 Wednesday 1:00 PM		CAPITOL 120
+	SB 284	CAMPAIGN EXPENDITURES	TELECONFERENCED
+	SB 110	PRESERVATION OF EVIDENCE/DNA I.D. SYSTEM	TELECONFERENCED
+		Bills Previously Heard/Scheduled	TELECONFERENCED

THIS IS MY VERY ROUGH NOTES.  DON'T RELY ON THIS.  I'LL POST THE AUDIO WHEN IT IS AVAILABLE.  

1:35pm Senator French is walking the committee through SB110 on Perservation of Evidence/DNA ID System.  The meeting opened with Chair Ramras warmly welcoming Sen. French and praising him and his office for being so easy to work with.

There are a number of people on the list to testify, but Rep. Ramras also wants as much time as possible for SB 284.  This is not a bill I've prepared for.

Online testimony:
Mr. Oberly, Executive Director of the Innocence Project:  The task force reviewing this will be helpful and police will hold up decisions until the task force does its study.

Jeffry Mittman, ACLU Alaska:  We support this bill as well.

Gruenberg:  Concern about length of time evidence is kept.  His concerns were with who decides the crime is solved.
French:  The concern that someone would peremptorily declaring crime solved, is covered.
Ramras:  We know of Rep. Gruenberg's propensity for belts and suspenders.
French:  These issues will be looked at by the task force.
Gruenberg:  It looks like you are right relating to biological evidence.  We're talking about non-biological evidence.  The house bill had this on p. 3 beginning of line 7.  The two bills seem to treat the non-biological evidence seperately.
Ramras:  As I recall there was a focus on biological evidence.
Gruenberg:  The bills themselves deal with both biological and non-biological evidence.  Will we have any fall out between now and when the task force makes its report.
French:  In the six years I was with the Prosecutors I am unaware of anyone disposing of evidence and I would be stunned if it happened in the next year.
Ramras:  Chair is satisfied with the discussion.
Gruenberg:  Is there anyone else concerned?  I don't see it among other committee members.

Gatto:  An agency ... may destroy biological evidence if ....   - that's not a complete activity - mailing a notice - makes no requirement of the recipient ever receiving the letter.
French:  I think the certified delivery implies that it was received.  If you continue reading - no person notifies after 120 days after receiving the notice...
Gatto:  Line 27 page 3.  Key word is mailed.  Doesn't matter they got the wrong address, or person can't read English.  If you wanted to have a certainty the letter was received and failed to act is not something the agency can control.

Heron:  We did amend that in other hearings and require a receipt.
French:  Would a proof of receipt help?   That seems reasonable.
For completeness.  I appreciate your desire to move this down track.

Language requiring applicants to pay costs of evidence retrieval have been romoved.  We've gotten approval/acceptance from department of law.
Timeliness provisions also changed.  p. 15 - were three years.  Not from this day forward, but looking back.  People now in prison have ten years after we pass the bill.  Otherwise people have unlimited amount of time.
Gruenberg: I'm still troubled by same issue.  If they got the perpetrator and say the crime is solved and destroy the evidence.  Now prosecution could say we are permitted to do this under this law.

French:  I don't share your concern.
Ramras:  Would you care to do a member swap from now to April 18? 
French:  [Something about the person not admitting guilt.  I'm not sure what this is about.]
Deleting attorney affidavit.  ????
Requiring evidence ???? deleted.
Page 8 lines 22-27 - right out of the federal bill.  We leaned on the Fed bill which is called the Gold Standard.  It was passed by Republican Congress and signed by Pres. GWB.

Gatto:  Subsection C.  Applicant did not admit or concede guilt under oath.  Admission of guilt is not not acceptable as a plea for this bill?
French:  What you'll hear from public defenders is that some people plead guilty with regularity.  They take a fall for someone else, doesn't understand English, lots of reasons to plead guilty falsely.

Ramras:  Two conceptual amendments = #1 page. 14.  Anyone else who wants to testify?
Public testimony closed.
Conceptual Amendment #1  - add to duties of task force -
Gruenberg:  think that should go in subsection D, lines 2?
Ramras:  Withdraw #1
#2 standards for return of property added to duties of task force [changed where to add it]
#3 page 7 line 31-p. 8 line 3 - subparagraph D3 page 7 lines 10-14  should conform (I have no idea what this is about).  Withdraw.
Holmes: CA #4 p. 7 line 31 delete 31-p. 8 line three and replace with applicant did not admit or guilt in ...except for the court in the interest of justice... nolo contendr plea is not an admission ... that is currently on p. 7 lines 14.
Passes.
Gatto:  CA #5 - p. 3 line 27 - return receipt requested  passes

Passes.  Concurrent resolution adopted.  At ease.

That's it for CSSB 110.  At ease and then I'll be back for SB 284.

Here's the audio. You can get the exact words used. CSSB 110 is the first 42 minutes.

Scalia Puts Form Over Substance - Innocence isn't a Defense

An apparently innocent man is about to be executed. But even if he can prove his innocence, Scalia says that innocence isn't a defense (from Time):

In his dissent, Scalia wrote, "This court has never held that the Constitution forbids the execution of a convicted defendant who had a full and fair trial but is later able to convince a habeas court that he is 'actually' innocent."

Basically, as I understand this, Scalia is saying that in the Supreme Court processes, innocence is not a defense against being executed.

Yes, the rules of law and the procedure, GENERALLY, need to be the way to go. This is true in all 'rational' organizations, that is, organizations based on the idea of the rule of law. The intent is to make sure that people are all treated fairly. People in the same circumstances should get the same treatment. Officials shouldn't arbitrarily decide who gets benefits and who doesn't.

But systems are just systems. When it is clear that the system has failed - a student's application was turned down because the system wasn't designed to account for her atypical situation - it's time for humans to step in, use their judgment to show that the intent of the rules is being subverted by the rules.

And when it comes to executing an innocent man, it would seem more than obvious, except to people who are so wrapped up in the process that they miss the whole purpose of the process.

Here's one overview of the whole story from Time.

[This is a post I normally would spend a lot more time on to make sure I have my facts right. But my image of Scalia is such that I believe this outrageousness and I've checked several sources (albeit briefly) that I'm just going to post.]

Update, August 20: I put the bracketed note above because I know that Scalia, however much I might disagree with him, is very smart, and that there must be more to the case. My son sent me a link to a commentary on this at Obsidian Wings by an attorney who gives more background. While he seems to support my conclusion, there is some legal precedence involved that does make it a little more complicated. Partly he's saying Scalia's view follows someone named Bator who argues that guilt and innocence are ultimately unknowable and so our proxy for the truth here is the jury's verdict. But this argument was made before DNA offered us another test of truth. There's a lot more. You can read the whole analysis at the link. Here are a few quotes:

The Court’s “original habeas” jurisdiction is one such exotic source of authority. To give you an idea of just how obscure it is, the Supreme Court had not exercised its original habeas jurisdiction since 1925. You have probably heard about Supreme Court “habeas” cases, but those are all cases that were decided by a lower court and that the Supreme Court has adjudicated pursuant to its certiorari jurisdiction.

The explosion of Warren-era habeas litigation provoked several conservative critiques, including a particularly influential article by Professor Paul Bator. Bator’s position remains the modern “conservative” (or “federalist”) paradigm for habeas adjudication. Bator argued that “ultimate truth” is unknowable. What we mean by “guilty,” Bator argued, is that some quantum of reliable procedure has produced a legal determination that someone has committed a crime. Bator’s point really an epistemic one [Ah yes, the post the other day on the need to study philosophy talked about epistemology which studies 'truth' and how we know it] involving the limits of human inquiry – that the criminal justice system ensures correctness by proxy of reliable procedure.

Here’s the rub. Under that paradigm, the question of whether someone is “actually innocent” is incoherent, because it presumes a god’s-eye view of guilt that is not tethered to the judicial processes that produce that verdict. Those subscribing to Bator’s paradigm (including Scalia) argue that the freestanding innocence question is not “whether a state may constitutionally execute an offender known to be innocent,” but “whether an offender, whose guilt has been determined beyond some threshold of certainty, has a constitutional right to a federal forum to retest his conviction when guilt seems less probable.”. . .

Bator's argument has several problems. First, Bator’s critique is persuasive only within a certain band of uncertainty, and we don’t always operate in that band anymore. When the only thing that a freestanding innocence claim demanded was consideration of new (often stale) witness testimony, then one could persuasively argue that federal habeas review created incremental procedure without a corresponding incremental benefit.

That argument is dated in the era of DNA evidence. DNA evidence, while not that panacea many seem to think it is, brings us as close to “ultimate knowability” as we can come. . .

Second, one of the central but implicit conceits of the Scalia/Bator argument is that state and federal process produce equally accurate results. State postconviction review and clemency – so the argument goes – render concerns about executing innocent offenders moot. That position is virtually indefensible, especially in capital cases. We know that innocent people are convicted of crimes, both as a matter of statistical certainty and with respect to specific defendants (Timothy Cole). State judges are elected, often running with “tough on crime” platforms. Allowing a murder to go unpunished is a cardinal sin in many jurisdictions. For a murder conviction to be set aside on state postconviction review, an elected judge would have to let a convicted murderer go free. In many states, the postconviction judge reviewing the conviction is the same judge that presided over the convicting court. State court systems sometimes include separate civil and criminal supreme courts. A state criminal supreme court faces even more intense political pressure to be “tough on crime,” because criminal matters are its docket’s exclusive subject matter.

The whole discussion is at Obsidian Wings.

Internet Imperative and Media Disintegration

My son sent me a couple of links worth checking. I'm sure a variation of this scenario from XKCD has happened in many households of my blogger compatriots.

And J1 also sent me to Roger Ebert's blog. Here he is conveying pretty much my own concerns about bully radio talk show hosts. In this post, for example, I talk about pollution of public discourse. And I've also discussed bullying as an aspect of this. Here's a bit from Ebert:

I am not interested in discussing O'Reilly's politics here. That would open a hornet's nest. I am more concerned about the danger he and others like him represent to a civil and peaceful society. He sets a harmful example of acceptable public behavior. He has been an influence on the most worrying trend in the field of news: The polarization of opinion, the elevation of emotional temperature, the predictability of two of the leading cable news channels. A majority of cable news viewers now get their news slanted one way or the other by angry men. O'Reilly is not the worst offender. That would be Glenn Beck. Keith Olbermann is gaining ground. Rachel Maddow provides an admirable example for the boys of firm, passionate outrage, and is more effective for nogt shouting.

Much has been said recently about the possible influence of O'Reilly on the murder of Dr. George Tiller by Scott Roeder. Such a connection is impossible to prove. Yet studies of bullies and their victims suggest a general way such an influence might take place. Bullies like to force others to do their will, while they can stand back and protest their innocence: "I was nowhere near the gymnasium, Sister!"

The whole piece is worth checking out.

Ted Stevens' Trial Stays in DC - Now What?

NPR also just announced on the air that the Stevens trial won't move to Alaska.
[11am update: ABC News has a report, but not much detail. So does Alaskan Abroad.]
Based on no hard evidence whatsoever, here are some thoughts on what might happen with the Stevens trial.

The idea that the defense wanted a speedy trial so Senator Stevens could be acquitted before the November election makes sense. This has also allowed them to ask for the trial to be moved to Alaska - where they probably assume, quite reasonably, he might get a friendlier jury - and to drop some things. Now that option has been closed off.


The ADN has also said that they've requested the Prosecutors do a better labeling job of all the audio and video tapes they have to listen to.

I'm guessing, that given the piles of things they have to read and listen to, there is no way they can be ready by September 24. (I could be wrong. They could hire a whole slew of young, smart attorneys to listen to those tapes 24/7 - but they have to all be up-to-speed and clever enough to catch important tidbits on the tapes.)

So now since the trial is not being moved to Anchorage, there will not have to be an automatic delay to send out notices for jurors, etc. Finding 12 Alaskan jurors who haven't heard about this case would have taken a while. Maybe someone back from a year in Antarctica or someone living in a cabin outside of Chicken. It took 2 1/2 days to select a jury in Anchorage for Pete Kott.

With the trial staying in DC, we'll find out how much he really wants a speedy trial, or whether this was all dependent on moving back to Alaska.

Saying they want a speedy trial to prove Sen. Stevens' innocence before the election is a good political move. It's been well reported. But being convicted before the election won't be a good move.

So they can now argue that they wanted a speedy trial, but, damn, the prosecutors dumped so many boxes of materials on them that to ensure Sen Stevens gets justice, they'll need more time before they can be ready for the trial. It's not our fault, it's the Prosecutor's fault for collecting so much irrelevant material, but we still have to go through all of it to protect our client

So what happens if Stevens gets convicted before the election? A couple of lawyer friends say he would be forced out of the Senate if he's conviceted. If that happens, the Governor can appoint his replacement as Senator.

BUT, I believe the Republican party chooses who his replacement as candidate would be. Not totally sure on this, but I think this is the case.

Since Governor Palin and Republican party head Ruedrich don't get along too well, it is conceivable if all this played out just right, that they could appoint different people.

Kohring Sentencing -Notes as it happened

Below are my notes. I can type pretty fast, but not fast enough. But this should give you a sense of what happened today. There are gaps, but I think I've caught the essence. I'll make comments and point out highlights in the next post. The previous post has video of Kohring talking to the press after the sentencing.






Vic Kohring Sentencing

U.S. District Court for the District of Alaska


9:30 AM 3:07-CR-00055-JWS Judge Sedwick ANCHORAGE COURTROOM 3

USA vs. VICTOR H. KOHRING

(Joseph Bottini) (John Henry Browne)

(Edward Sullivan) (Wayne Anthony Ross)

IMPOSITION OF SENTENCE

9:35am Judge Sedwick is explaining why we are here
List of Felonies Vic Kohring convicted of
Pre Sentence Report Prepared which I’ve read
Vic Kohring have you read the presentencing report?
Yes.

Presentencing Report. Vic Kohring has mentioned three objections:

A. Not one of allegations predating 2006 is relevant for sentencing
B. Since related PPT bill, related to only one subject matter, …. Unwarranted
C. Sum total of payments Vic Kohring received was less than $5000 so …..

Sedwick, I will take up these later, but first all other findings of fact I find supported by preponderance of evidence.
I’ll hear from lawyers.
Then others.
Then Kohring
Then Determine sentence.
Then hear argument on his motion to be released pending appeal.

Mr. Browne: [Kohring's defense attorney. Although Wayne Anthony Ross is also listed, he hasn't been actively involved in the courtroom]

John Henry Browne: You have everything we’ve filed, more detailed than presentation. You summarized objections right.
Vic Kohring accepted $1000 and some food, so no basis for upward adjusting under law. Guilty of $10,000-30,000 - he didn’t accept nearly that amount of money - neither the loan or job for his nephew not criminal conduct. Since the jury found not guilty on ??? Not guilty. Not clear exactly what conduct the jury found illegal. According to the newspaper….




Sedwick: I only mentioned newspaper articles because you mentioned them in your appeals.
John Henry Browne: No, in your order about our conflict of interest argument you mentioned the newspaper articles. Unusual to rely on newspaper article - I should point out there are jurors here present today - $1000 got on way home from the pub.

For the court to suggest that there was $5000 or more would be a guess what the jury decided.

Whether there is more than one bribe or not, the Govt.’s case supports our permission - “If you find a series of payments” that is usually considered just one bribe. If you accept my reasoning, his sentencing raise would be 17- 23 months, series 18?

Otherwise level 20 - 33- ? Months

Bottini - [Prosecutor #1]
Pre 2006 , or course relevant, in the indictment, charged, jury convicted on him.
Multiple bribes, we argued this in Anderson and Kott unsuccessfully so we understand reasoning. But this is different. This had nothing to do with ppt. What Allen did was from time to time give Kohring money when he needed it. He remembered giving Vic Kohring $600-700 on several occasions. Doesn’t mean they weren’t a bribe. Giving the money because he felt sorry, but also to grease him. Knowing full well he would have a time to come and ask him for something. Vic Kohring was choking the bill? And he asked him to let it go. He asked him not to run against Lyda Green. Clearly a multiple bribe situation.

Sullivan: [Prosecutor #2] Browne’s arugment that there should be no enhancement, because only took $1000 bribe at Island Pub. Specifically related to $17,000 loan that he was asking for - we charged it as an attempt crime because he didn’t get the amount. Browne says because there was an acquital on Charge 2? - evidence was prsented on other counts, thus there should be a four level enhancement to $29,000.

Sedwick: It seems law clear that court should consider evidence whether it happened. Even the SC says that if preponderance of evidence, the court should consider it even if acquitted. I’ll give Browne a chance to respond. Is it your review I misunderstand the law?

Browne: That’s a tough questions. Your Honor could consider the weather in Anchorage because it is kind of gloomy today.
Sedwick: I won’t.
Browne: We do not believe that the court can find a preponderance of evidence. Mr. Allen never testified. Interesting, government changed the word ‘loan’ to payment. I thought interesting. That’s the language in the superseding indictment - payment - we know there was no payment. Kohring said, over and over again, everything has to be aboveboard. Nothing from Allen that he considered any requests by Vic Kohring to do anything. I believe it would be a stretch…. [sounding much less certain here]

9:50
Sedwick: Having sat through the trial. I come away with a different assessment than Mr. Browne does. He saw this $17,000 as a way to deal with his financial problems. Despite Mr. Browne’s very able arguments, I overrule the objections and adopt all the statements. That means 24, Criminal history category of 1, the lowest. Advisory is 51-63 months.
If the govt. Knows of any victim that would liked to be heard.

Bottini: No.

Would like to hear the attorney’s ideas for sentencing:

John Henry Browne: No secret we will be appealing whatever happened. Based on what you just ruled, and I assume that you included the multiple bribes.
Sedwick: Yes,
Browne: Object to courts intervening in proceedings at all.
Sedwick: Noted
Browne: We are asking for the court to depart from the sentencing guideline and reasons in our brief.
Sedwick: Principle one being abberant behavior.
Browne: Thank goodness the SC has now given courts discretion. I’m happy to see it back. Doesn’t mean I agree with it. I would...point out, today, Mr. Kohring has hitchhiked to court. The door of the truck he borrowed. The door fell off. He hitch hiked.

He is residing with his parents on a doublewide couch, humiliated. Meanwhile, Bill Allen, with $400million he was allowed to keep, the govt. Perhaps because Veco is so involved in the oil industry, has given Veco a pass. While my client is sleeping on a couch. I note that his sentencing has been continued to July again. You saw examples of Kott, Allen, Smith behavior on tape, how they talk, drink, behave on tape. You certainly never saw that of Kohring. He never used one bad word. No matter what happens, Allen has $400 million in his pocket. Mr. Kohring gets to pass on to his relatives debts. Jurors in the newspaper said if they understood the sentencing consequences, they would have taken their job differently.

He spent a decade as a dedicated legislators. Letters say how hard working he was. There were over 50 bankers boxes or more between Kohring and constituents. The letters also say, though you didn’t allow us to present any of this to the jury. Mr. Kohring has a mantra “Let me know what I can do for you.” I know politicians have a tendency to say things like that, though not to the extent Vic Kohring does. Does have obligations and responsibilities to parents- Alzheimer's dad - and facing divorce from his wife.
No question it is aberrant behavior.
Question for the court whether that should be a basis for departure. Drink of water your honor. The clmate I came to try this case was someone incendiary, because of Anderson case. You were critical of Kott - swearing, etc - and that he wasn’t honest. Not the case here. Kohring didn’t testify. Certaininly 8 months in jail or home detention is a significant penalty… Are there other issues you want me to cover now?

Sedwick: Self surrender. There is a questions about release status pending appeal, I will considere today.

John Henry Browne: Mr. Kohring has preexisting defect in spine in his back. You know because of his surgery reason for $17,000. Mr. Kohring was in an auto accident a week before trial, and I was driving, the only accident in 30 years, I was at fault, and he needs surgery again. He could accomplish that in 45 days, not longer than self surrender takes. You want to hear from Mr. Kohring first?

Sedwick: Yes, but from government lawyers first.

John Henry Browne: Sought advice from myself and Wayne Anthony Ross… He is very concerned about the conflict of interest issue. He’s been advised by some that…. That may not set well with the court. We have put that forward about what you should have told us before and we would have asked for you to be ….. Kohring is not angry. He’s Andy Griffith. He’s not angry, just disappointed. He has a right to talk about his feelings and that the court will listen and understand. I will wait to talk about the bail issue.

Bottini:
aberrant behavior issue: This was a four year conduct. Not aberrant, he knew if he told Allen he needed help, he’d get it. He did this over and over for four years. Mr. Browne says well, compare this to Allen.
Not true. We went over this in detail. Veco didn’t get a pass. He sold the company at huge discount, because government wouldn’t give a pass. His family situation is nothing unusual. The fact is that he has family here, in state, his sister lives in Palmer.

He offers to help everyone. Modus operandi for Kohring. What is different is that the offer is directly to Allen and smith. After Easter Egg money, he offered to help Allen and Veco.

Contrast between the Kott trial and Kohring tapes, granted, he’s not Pete Kott when it comes to the colorful language, but you saw a guy who was politely corrupt. Doesn’t mean he wasn’t corrupt because he doesn’t swear. The fact that he’s - Andy Griffith - I don’t recall any shows where Andy Griffith took cash from anyone. He may be polite, but still corrupt.

Sullivan: Mr. Kohring convicted of multiple instances. I could talk about corrupting public process at great length. But anything I say would pale in comparison to that one snapshot of him taking money from Allen and asking “What can I do for you?” It says it all about Kohring and about the level of corruption in the legislature at that time. You’ve heard a lot about ppt - billions of dollars of tax revenue for the state - that snapshot showed that piece of legislation was being decided in the back room of a hotel. Spoke volumes about Vic Kohring, that he was willing to sell his office for gain,

Videos showed other traits - He was a manipulating and calculating person when it served his purpose. Timed visits when Veco needed something. Those are times he asked for things. He also knows how to play the pauper. He gave Smith and Allen song and dance about his conditions. Never told them that he was making $100K in per dieman and sleeping on couch by choice. Frequent flier at ethics office. He knew what he was doing.
Not aberrant behavior, at least 4 cash payments 2002-2006. How many times did we hear phone calls from Vic Kohring he was willing to help Allen and Smith. Vic Kohring’s illeagal conduct clear and the guilty found him guilty.

We asked tha integrity and honesty should have some meaning. The only way to make that image of dishonesty goes away when Vic Kohring goes away. We ask for 60 months.

Sedwick: Vic Kohring

Vic Kohring: Honorable Judge Sedwick, not here to plead for mercy. Instead, to plead my innocence. I was stunned to learn you were married to one of my greatest enemies. You were legally bound to excuse yourself. Furthermore you lived across the street from the governments star witness. I’m so disappointed that the person who holds the fate is married to the person whose job I eliminated.
Then this week’s latest motion you denied. The juror who regretted his decision.

I will admit, I showed poor judgment when I accepted cash for my daughter from someone I thought was my friend who betrayed me. I didn’t live up to my high standards. I never once voted for PPT. My words, How can I help? Were my mantra. Ironic that my words are now being used against me. Intended to be helpful.

The resutling conviction has destroyed me. Cost to me is approaching $half a million, all over $1000. But my spirit is not broken. We did all with integrity. Just an honest presentation of the facts. I used to believe in my government. I do not hold it in high regard as I used to. I believe in the principles. I won’t express remorse for something I didn’t do. The truth will only be reviewed if heard before jurors without bias. I thank the jurors but want to let them know they didn’t hear all the evidence.

I for one shall not rest until justice prevails. I didn’ nothing criminal. Iwas naive. I assert my innocence. All I ask for is to be treated fairly. All I ask for is a fair trial which I believe would find me innocent.

10:20am

Sedwick: As lawyers know, sentence requires applying all criteria.
1. Nature and circumstances of offense: Key criterion. Jury shows, Vic Kohring violated the public trust. Reflected in fact Congress has provided that most serious sentence is 20 years.
2. I agree that Vic Kohring’s objective was to serve interests of his constituents. Unfortunately, at the end he sold out the trust he worked so hard to earn, but participating in the relationship with Veco. Browne suggests that he was just doing what he always did - helping people. But difference between lawful and unlawful helpful. Since he spent so much time at the ethics office. It is clear to me, despite what he said, that he knew what he did was wrong.

I think there is no risk of Vic Kohring committing future crime. He has learned he must be careful to help people whose objectives are lawful.

Must consider impact on others. To reinforce message to people elected to serve the public.

Even Mr. Browne believes some period of incarceration is required.

Court has to consider what is available. Probation is legally authorized. Serious nature makes probation outside the bounds. Incarceration and supervised release left.

I have determined guideline 51-62 months. Instructed by congress to avoid disparities. All judges across the country consider the guidelines, even if not absolutely bound.
I have to provide for restitution. No way to pay that here.

Finally, Mr. Kohring's physical condition. Given Vic Kohring’s modest financial condition now, it appears he’ll get as good or better care in prison than he could afford himself. If he does need a surgical procedure soon, and plans on that and apparently has the wherewithal to pay for that.

Taking that all into account, I have to say does not deserve same as Kott or Anderson, behavior not as egregious. Clear to me that his desire to help shouldn’t have included things Veco wanted to do.

Finally, it has to be sufficient but no greater than necessary to achieve goals congress has set forth. Lower range is appropriate, 42 months is appropriate. Is one meets requirements of the statute, is no greater than necessary.

Appropriate to hear motion on Docket 181.

John Henry Browne: In recent past, I know you and most attorneys deal with people not released. Unusual for me. Usually a way uphill battle. Very uncomfortable to make arguments because of what is alleged.

Sedwick: Go ahead.

John Henry Browne: I would suggest there are substantial issues on appeal.

Sedwick: You can speak at length. I’ve read them.

John Henry Browne: There are meritorious issues. Novel, that trial judge has made opinion on his own that he is fair. And it is a meritorious issue. Search warrant issue is serious. Controlling law is 18USC…. Is he a flight risk or danger.

2. Is the appeal meritorious and not for the purpose of delay. You heard what he said to you, sticking to his guns. He believes he has meritorious issues on appeal.

3. Raise serious issues of law and fact.

I think he meets the criteria for meritorious issues on appeal.

He’s a very law abiding citizen outside of this issue.

He doesn’t have the $500,000 fees that Mr. Allen has. I’ll continue to help him.

Sullivan: As the court is aware, we received this motion late last night. Would like to respond in writing.

Sedwick: This is not complicated

Sullivan: We conceded he is not a flight risk

We take issue whether he has raised an issue that will be reversed or reduced sentence. We disagree. Laundry list of issues have all been fully vetted by the parties here. We believe the court has correctly handled them here.

Sedwick: As both noted the statute that controls here 18USC…. With exception of certain crimes irrelevant here.
1. Not flight risk or danger - Vic Kohring meets that
2. I do have to find not taken for purposes of delay that is likely to result in reversal or new trial with lesser penalty.
A. Not taken for delay
B. Reversal

With respect to related issues Browne and others have written. I believe my decisions isn’t at all unusual.

Good candidate for self surrender. He won’t be required to surrender any earlier than…
Monday June 30, 2008. Because Mr. Kohring needs to have surgery. That should give him adequate time to have the surgery and recuperate.

Supervised release for two years. Sentence to run concurrent on each account. Meaning he will serve all sentences at the same time. On release he shall be replaced on supervised…. Speaking way too fast.

1. Cooperate in collection of DNA sample
2. Searches by probation etc. Offers on reasonable suspicion…

Does not have ability to pay fine. Required. $300.

If his condition is such, he may surrender before June 30, I am highly unlikely to extend this no matter what the medical condition might be.

Any other matters before I mention appeal rights.

You have right to appeal….

Kohring Blasts Judge after Being Sentenced to 42 Months

Below are:

1. Brief video of Vic Kohring talking to the press after the hearing was finished.
2. My rough version (typed as he made his statement and full of errors and gaps) of his statement to the court.





[Here's more video from that meeting with the press from Dennis Zaki's blog.

2. Kohring's Statement to the Court (As best as I could catch it as he spoke)

Vic Kohring: Honorable Judge Sedwick, not here to plead for mercy. Instead, to plead my innocence. I was stunned to learn you were married to one of my greatest enemies. You were legally bound to excuse yourself. Furthermore you lived across the street from the government's star witness. I’m so disappointed that the person who holds my fate is married to the person whose job I eliminated.
Then this week’s latest motion you denied. The juror who regretted his decision.

I will admit, I showed poor judgment when I accepted cash for my daughter from someone I thought was my friend who betrayed me. I didn’t live up to my high standards. I never once voted for PPT. My words, How can I help? Were my mantra. Ironic that my words are now being used against me. Intended to be helpful.

The resutling conviction has destroyed me. Cost to me is approaching half a million dollars, all over $1000. But my spirit is not broken. We did all with integrity. Just an honest presentation of the facts. I used to believe in my government. I do not hold it in high regard as I used to. I believe in the principles. I won’t express remorse for something I didn’t do. The truth will only be revealed if heard before jurors without bias. I thank the jurors but want to let them know they didn’t hear all the evidence.

I for one shall not rest until justice prevails. I didn’t anything criminal. I was naive. I assert my innocence. All I ask for is to be treated fairly. All I ask for is a fair trial which I believe would find me innocent.

"It's like a bully, a black hole bully punching the nose of a passing galaxy"

This blog's name is "What Do I Know" because I'm interested in how people 'know' what they know. How is it that Christians of one denomination 'know' their truth while those of another know a different truth? And Muslims yet another truth. Hindus and Sikhs still others.

How is it one voter 'knows' that Ron Paul is exactly what American needs, while another thinks he would be a disaster?

I don't know the answers to these questions, but the explanation that makes most sense to me is that humans come to 'know' things through a complex mix of ways.

• genetics provide us with instincts and predisposed tendencies
• experiences with the world that provide us with mostly unconscious knowledge of the physical world (visually interpreting depth and movement) and the social world (interpreting the intent of other people)
• instructions from authorities such as parents, the media, teachers which is why Chinese babies end up speaking Chinese, unless they get adopted by, say, an American, in which case they end up learning English; and why Muslim kids usually have Muslim parents
• logic and reason provide us with ways to examine what we know, test it, change it

All of these ways are essential, none is best for everything, some are better for some things. How they play out in our brains is different from individual to individual, and even within a single individual from one time to another.

So I found Seth Borenstein's AP story on a black hole the other day interesting. He writes:

"It's like a bully, a black-hole bully, punching the nose of a passing galaxy," said astrophysicist Neil deGrasse Tyson, director of the Hayden Planetarium in New York, who wasn't involved in the research.

But ultimately, this could be a deadly punch.

What in Neil deGrasse Tyson's life causes him to see, in these images, a bully punching someone in the nose? Why does he put human intent in them? Poets use images to convey abstract ideas. If Tyson is trying to make this astronomical event understandable to us non-astronomers, why that image? Watch the NASA video and see if that is what you see.





Actually the description in the video is far less based on human emotions.

This made me think of Rohrschach tests. Those inkblots psychologists give patients to interpret. From the same ink splotches, different people see totally different things. I only have a layperson's understanding of such tests and the Rorschah.com site said very little

The test itself, as well as the book, are too well known to require any detailed commentary here,

Rohrschach.org was full of typos that didn't give me much confidence in that site. (revealing one of the ways I 'know' what I think I can trust on the internet.)

uk.tickle.com had what they purport to be an actual Rohrschach test. I went through the eleven inkblots, but at the end I had to 'skip' eight or nine ads to get to a page where I could pay £8.95 to get my results. But if you just go through the test pages, you'll get the point I'm making here about interpreting what you see. The questions they ask give a sense of the different things people see. Here's one of their inkblots.




I think the inkblots - and the space activity - are good examples of seeing how people take their own knowledge, experiences, and emotions to interpret the identifical 'facts'.

One part of improving public discourse is for people to become more aware of how they know things - the stories in their heads with which they interpret the 'facts' of the world. Also, explicitly seeing how different people 'see' different things in the same set of 'facts' is also instructive.

Attending the corruption trials also emphasized the way people take in evidence and determine guilt or innocence. Clearly the jurors saw things differently than the defendants.

And, of course, some people's interpretations of facts, are a closer match to reality. My basic test for good interpretation is how successful one is in using that interpretation to predict outcomes. Sometimes this can be done - which fishing hole is most likely to yield fish? - sometimes it can't be done - which is the most beautiful painting?

Kohring Trial Day 7 - Closing Arguments

Sullivan made the prosecution's closing statement. He put all the facts into order and connected them to the charges. It was a strong logical case for guilty. He still needs to work on making these arguments sound like a story he is telling from his heart, not a speech he's working hard to remember and say in order. When he said, "They knew, they had a secret..." and went up to the jury as if he were telling them a secret, it seemed pretty staged. But he did put the argument together in a convincing way.

Browne spent the next hour talking about the duty of jurors, about the burden of proof and beyond a reasonable doubt ('bard' in my notes), what a " blasphemous, rude, arrogant, grandiose, intoxicated, and obsessed with power" lout Bill Allen is and used the question he tried out on reporter Lisa Demer yesterday in the federal building lobby interview you can see in the video I posted yesterday - "Would you make a critical decision in your life, based on BA’s testimony?"

He did talk about the facts of the case. He didn't make his own case. It was more like the prosecutor had set up a chess board and pieces representing the argument. Rather than critiquing how the board was set, he moved pieces around, knocked others over, dropped sand over here, added rocks, and poured syrup over the whole thing - not so much countering the prosecution's argument as totally obfuscating it. It was as if maybe he could sow enough doubt here and there, confuse the jurors about this point and that one, move the pieces around so they wouldn't be able to follow the original argument set out by the government. If he messed with things enough they wouldn't be able to find his client guilty beyond a reasonable doubt. And Sullivan stood up to object twice, and the judge sustained the objections twice.

Then Bottini got up and lit into Browne's closing, talking fluently without apparent notes, just going point after point to rebut all that Browne said. It sounded sincere, just a little exasperated at the defense attorney's allegations, and sure of his facts and conclusions.

Below are my typed notes from the trial. As usual, they are just what I could catch with my increasingly stubborn fingers. I've run the spell check, but not made any other changes. So take this with a a great deal of skepticism. This is a sketch, not a full color account. There is a lot missing, but it should give you sense of what was said.



Sullivan - to whom much is entrusted, much

VK broke this trust, he received money and other financial benefits from BA, Veco, for agreeing to perform and actually performing official acts.

….
First, the evidence
Gasline and ppt. starting point.
1. Veco view - pipeline was goose that laid golden egg.
2. Veco first had to get ppt bill passed before getting the pipeline. For every 1% increase in ppt, tens of millions of profits for oil companies
3. Veco supported the 20/20 tax rate because that’s what their clients wanted - the oil producers. They had to produce the 20%

How produce with VK? BA and RS said they went to legislature to get ppt passed. They used VK and PK. Every vote counted. Had concerns with VK.
1. K upset because ppt bill not sent to his committee. Remember sb 185 because the bill was hijacked? They have to get him to support ppt.
2. VK is anti tax. Clients agreed to 20%, but VK so extreme anti tax, that he might muck up the process. Don’t want him to offer lower taxes.

….

Phone call RS & VK I understand your tax position, but this is not the time to go crazy, not the time to go whacko.
Audio - of the phone call - don’t you dare take this opportunity to go crazy
VK I know in politics there is a lot of give and take, I would reluctantly go along if you and the producers are amenable. Feb 22

He didn’t say: I can’t do that, I can’t vote for tax increase. He says, I’ll reluctantly go along. I don’t want to screw you guys over nothing
Also talked about dinner with the three of them. Go to island pub in Douglas BA said he gave $1000 to VK, he knew VK was upset about committee assignment, wanted to get VK on the team. RS sensed this, and he got up and left while he did this. BA and RS were like a married couple, he knew what he would do. He’d done it in the past - given $.

Conversation when they didn’t know we were listening.
March 4 Video: That’s why I left you alone. I knew you did.

Allen doesn’t tell smith he gave him $1000 as a gift, or to his friend, but he gave it so he would kiss our ass. Is there anything else I need to say about the relation between Veco and VK? It’s all about getting the ppt.

About the relationships. BA and RS took VK out when it served there purposes. There was no deep bond because of Russia. REd carpet list had Allen and Smith listed as supporters, not as friends. … the only thing VK came to the party with was his legislative hat. You heard times when VK was trying to milk the lobbyists, a free meal. He knows BA has deep pockets, one of the largest corp in AK. He was playing Allen too. How would BA act if he knew that VK was making $100,000? He couldn’t tell them that, it would stop the money train. ************

They knew, they had a secret, [leaned over and almost whispers to the jury….[
March 20 audio tape. He said I’ll be there for the vote. Talking to PK If it’s needed he said he’d be there.

...He’s not representing the interests of his voters in Wasilla. He’s working for Veco.
$1000 from BA, asking job for nephew. How many times VK initiated phone calls, Hey Rick, this is Vic. Lobbying other legislator Bert Ste?? , offering amendments, modify a bill for BA and RS, lobbying colleagues, advocating good things for Veco, acting as an info source. He will pass along info from BA to others, talking on radio and tv. He actually did them.

What is official act? some think, “he votes a certain way.” It’s much broader. It could also be anything wearing his leg hat. Also agreeing not to stall a bill, not to do something.

March 30 call. Serious matter to talk to BA and RS. What did BA think? He’s coming back for money. He actually took a wad of money out of his wallet and into his pocket.

Why is VK there in the first place. It’s the middle of the session, going to head of Veco, who has the most important leg of the session and for Veco's history. They’re loyal leg is in trouble politically. Asks for their rec. to help him answer his financial problem. He’s fishing. Why going to them? Why not go to friends? Why not Mark Marlow who employed him. If he could afford $500 a month, why not go to the bank? He knows BA is is biggest financial backer, he might just give him the money. He’s already been offered a job. In VK’s words, he was just there trying to solve a problem.

What get’s decided? Nothing. ONly that it is discreet, that he’s careful, that there are ‘no red flags.’ This can’t get out into the public. BA said he tried to fix the problem, he went to his own FO to check. Said if he could have given the money he would have. But already in the newspaper about consulting contracts.

What happens immediately after he tells them about his debt? He gets two cash payments. Look at this picture [money hand off] - that’s not a loan, that’s a payoff. BA doesn’t care what he does with the money. He could buy a whole GS troop. He’s been in this hotel suite all session, just to get ppt passed.

If this is a gift, where is the gift disclosure form with ethics committee? Joyce Anderson told us he was a frequent flyer at the committee. He knows the rules. The reason why this gift doesn’t relate to his legislative status.

What can I do to help you guys? Are you close to..? Stoltz, moderately so, can you gt him. I’m not real close to Bill, close to Meyers…… Vidoe tape March 30 Who’s on finance? Holmes? I know him well. He’s unpredictable. Kelly’s probably with us. Great relationship with Richard Foster….. [Talking about various legislators ] tell us what they are thinking about. tell us where they’re at, push them into our column.
First I’ll find out where they are at, then I’ll try to move them over. I know that’s really important to you. My position is anti tax, but I understand this is an intregal part of the whole deal here. …..

Folks, they’re talking about legislators who are on the fence, on key committees, the Finance Committee. He’s working for Veco….What does he do, after the payment, after waiting to hear what happens with his nephew. Lots of phone calls reporting what he’s doing, calling Meyers

Next day phone call audio: Pam has scheduled meetings for me to tell them to pass the gov’s bill as close as possible.

The same day 3/31 - I’m falling through on the plan. Let you know I’m doing what I can. I will do the best I can to lobby for the bill, to meet all the finance committee members.

Not a coincidence that the day after they met in the suite, that he is following through with the plan. One thing - about his votes on ppt.

Browne said he never voted on ppt. He’s trying to confuse you, BA wanted to keep it at 20%. There were attempts to take it above 20% and VK voted no. They wanted him to vote no. Veco didn’t want 22%. Oil producers didn’t want 22%. VK voted consistent with what they wanted.

amendment to an amendment. Sometimes such amendments did pass, took it to higher rate. Votes were intended to defeat the higher rate - voted yes to get the rate down. When Mr. Browne tells you VK didn’t vote for ppt, keep that in mind.

Let’s talk about the end of the first special session. 22%. A few hours left. you see PK RS and BA. How do we stop this? Have BA take VK out of town. You heard the call.
They meet at McDonald. The plan changes after they talk to VK (PK?) BA says, on the way back, near the liquor store, BA takes out a wad of cash and gives it to VK. Listen when the take out the hamburgers.

PK: [talking about procedures if you left you’d be in trouble]
BA: I wouldn’t a done that to you
VK: I would have done what you requested

That says it all. I would have taken a big political hit for you uncle bill. At this point, if BA had told VK to jump, he would have said, how high?

Aaron K. seems like a good kid, but he got the job because they wanted to keep VK happy. They are concerned because he is upset about the committee assignment. At dinner, VK says aaron looking for job. RS says, Veco has internships. A month goes by. Nothing about internship. VK brings it up. They say, We need a resume. VK takes the resume. RS takes the resume. Writes a note for BA - I think I’ve got a winner here, he’s VK’s nephew. RS had never met Aaron at that time. When they see it’s from BA they’re going to hire the kid. And that’s what Ms. McDonald said yesterday. He was hired

In two short months he made $3200, making $16/hour. He’s a good kid, had a great summer.

Periodioc cash payments from BA starting in 2002. Occurred in VK’s leg office in Juneau. RS corroborated, because BA told him after the fact. He did it for two purposes, 50/50 He did feel sorry. He didn’t know he was making $100K. But he also wanted to keep him loyal. It was an insurance policy.
Cook Inlet Oil - 2003 - BA asked K to take an official act to move the bill out of his committee because VK was stalling it. No question that he thought the bill had been hijacked - memo from his office - video with Prewitt. Allen Smith told you to kick the bill and he did and it got passed.

Eric Musser. No dispute that BA give VK an earful because of EM’s complaint about Bev Masek. BA upset because one of his loyal supporters was being attacked. VK tried to get the complaint withdrawn. The fact is that the complaint doesn’t get withdrawn, but Eric Musser does.

Lyda Green. BA told VK twice not to run against LG.

Folks, I also want to talk to you about the charges, your role

Count 1: Conspiracy to commit certain crimes including bribery
C is an agreement between two or more people to commit a crime. Doesn’t have to be explicit, just agreed. It started when they started making cash payments. The evidence I covered proves he agreed to perform specific acts on behalf because of various payments. You heard about the linkage between the acts and payments. The fact that he actually carried out the acts, further proves the conspiracy

Count 2 Hobbes Act, only relates to officials
PO when he obtains money or other property in agreement to take some official action and it impacts interstate commerce.
1. Doesn’t matter if VK ever took an official act, but only that he agreed to do. We submit he did not
2. Not a defense to say I would have voted the same way, I wold have done the same things.

Proof side: No dispute. He was a public official. And interstate commerce affected. Dan Dickinson, BA and RS all showed oil companies are interstate.

He received several benefits - $1000 at pub, money near McDonalds, money in Suite, and job for Aaron K.

count 3: attempted violation of hobbes act
attempted because he didn’t actually get the money
same factors plus, VK took a substantial step toward getting the money. He took the step when he went into the room and solicited them for the money. Listen closely to that conversation and what was agreed to.

Count 4: Bribery in govt. entity receiving fed funds
$5000 or more - VK charged of taking bribes while an elected official in state of AK
not in dispute
pipeline well in excess of $5000
State received far in excess of $ in fed funding
VK did receive bribes i exchange for official acts
McDonald’s
Douglas
Suite
$17K
Job for Aaron

He violated the bond of public trust he had with his constituents. Based on all the evidence, I asked you on behalf of the US that you find VK guilty of all four charges in the indictment. Thank you very much. 9:50am

J: Mr. Browne
B: Mr. Browne has to go to the bathroom


10:05 break over

Browne; mike on. First, thank you, i’ve been watching you and you us paying attention to each other a lot, you’ve been taking notes, I appreciate the seriousness you have taken this. One of the most serious things you’ve done in your life. Your sworn oath that you would follow the law and that was your word. I will get back to that.

In the beginning a few things were disorganized because i was listening to what gov said and responded to. Same today.
Gov’s presentation persuasive if you ignore the burden of proof if you ignore

Object of persuasion is to persuade that your side is correct.
It is all right for a leg to vote for legislation supported by your supporters That is completely all right. Haliburton gives money to the Bush camp and expects attention from the Bush people. GM gives money to legislators to do things. Unions, teachers unions, give $ to legs and expect them to do things for them
Some suggestion here that that isn’t legal
We know BA Veco gave 8% of VK’s campaign funds, all reported, it’s ok.
A bribe, must be known as a bribe. And the govt must prove that to you beyond a reasonable doubt.
Gov has suggested in past and now, attempt to borrow a pickup truck that went no where was a bribe. The gov has to prove bard that was a bribe. BTW the pickup was never provided and MR. K said I’ll be happy to pay for, but it never happened anyway.

Money given for E egg incident, Mr. K knew bard that it was a bribe, not simply because Veco was a consistent supporter of his.

Mr. K has served the people of this community and state for 12 years, even after this was known he was reelected. Still going of notes from this morning. Comment about RS saying to Vic, Don’t you dare , that is strong language, I have a 16 year old boy, don’t you dare take the car out , that’s a pretty strong word, Mr. S used that term, don’t you dare use this as an opportunity to go whacko.

According to Mr. Smith, they already owned him. If the did, why threaten him that he shouldn’t go nuts. During all the transcripts, dvds, everyone in the courtroom hopes you’ll listent to them carefully, that nothing is taken out of context. You need to listen to those, to hear what is actually said.

You will hear that VK never asked for any money from BA and RS ever. He asked for a loan. In the charging docs, gov. told you they were going to prove that there was a request for Mr. K of a payment. That has completely fallen apart for the govt. No one an characterize that as a payment.

I believe Ms. Anderson said, VK had filed more requests than any other legislator, I could be wrong, follow your collective member, Ms. Anderson did not say he did not file reports. I think you need to rely on your memory and notes on that.

VK saying I will do this and lobby some of my constituents - that is all legal, nothing sinister. G. says my client mentions names, Meyers, where are those witnesses? It’s apparent to you how much resources the govt has? Have you ever been in a position when the gov is going after you? There is no bottom to those deep pockets. You saw FBI agents flown from all over to testify. $100s of thousands . Against me and him.

Why didn’t they, with all that money, have them here as witnesses. Reasonable doubt is based on a lot of things including the absence of evidence.

It seems odd that a person subject to these ramifications it seems odd that the person charged by the govt. doesn’t get the last word. When I’m done, Mr B will get up and say more. The reason is that the burden on the g is so heavy, that the people who founded this country, knew that proof bard is so strong that the govt. need two chances to rebut.
I will try to anticipate what he will say and rebut them in advance. What we say is not evidence. You need to review the evidence yourself.

I am waving the flag now. There are kids dying today in support of these principles. We believe in this system that’s why you are here. We believe in this system. Explaining to jurors, “What does not guilty mean?” It means: not proven. That, you aren’t saying mr. K is pure as the driven snow, that he didn’t use bad judgement here and there? But did the G prove the case beyond a reasonable doubt. The J said the presumption of innocent, in and of itself, is enough to say ‘not guilty.’ Not guilty means not proven, these people with all their resources haven’t proven their case.


When the judge told you at the beginning of the trial, that presumption of innocence is so important and you were sworn to.

Let me tell you what this case is not about:
Victor K. proving anything, he has no burden of proof whatsoever
Not about we, VK and I, have no burden to prove anything, and that’s how the people who wrote our Constitution meant it to be. If you’ve ever done battle with the govt. you know why. W

Not about prejudice against politicians. I think there are more politician jokes than lawyer jokes.

Not about ethical rules and regs internal in the legislature.

Not about legit contributions and fund raisers

Not about doing things for people that support you politically. If people support you politically and give you legit money, that is what you do as a politician.

Case not about assuming that a gift is a bribe, without an agreement o do something illegal. The gov attorneys say if the pol gets a gift it must be a bribe if they do anything to help. They say money was for a bribe and not what he would do in the normal course of supporting VECO.

How did we get here? It started with Prewitt who was in trouble with the law but wouldn’t admit. FP mentions that he has info about major political corruption in AK. And when the names came out, the FBI started drooling - ted stevens, ben st. DY, MR.Kott, TA, BW, VK. so the Govt threw out this big web and determined who was going to fall into the web.

But we see a big mistake was made by the gov. but they won’t admit mistake. I submit it was not until just before this trial, until gov. realized that VK didn’t vote for ppt. The case was a mistake it was falling apart, They allege it was a payment when it was a request for a loan. They said about pickup. The job for Aaron was a bribe. That’s ridiculous There case so weak, turn to that as the basis for the this case. Most people get a first job through connections. But the g is so desperate in this case that they say this was a bribe. That he knew and Aaron knew it was a bribe. When their case started falling apart they started adding things - BA gave him money since 2002, he fired Musser, he was going to run against Lyla until BA told him not to. It proves only he listens to one of his supporters.

I’m certainly not faulting the G in some of the investigations in this scandal. But let’s look at others
T stevens gets $100K for a house - thats not a summer job, an easter egg
B stevens got $250K
TA $25k I believe and a contract
PK Got $10K

That should be investigated vigorously. I asked T stevens if the work on t stevens house was a gift. He said no, it was a bribe.
Even if you believe Mr. Allen, we’re talking about money with VK that was less than it would cost to buy a plasma TV. Millions of Dollars to put him in that chair.

Compare that to BA admitting he bribed $400 K and were talking about easter eggs.

Objection:
Judge: Remember our earlier discussion, your getting close to the line

Mr. Prewitt is central casting for a sleazy lobbyist. Not only made a deal with the gov. even wanted to be paid. G. wired mr. Prewitt to entrap mr. K to entrap to admitting things he did wrong.

In the last video, Vic doesn’t look very good eating, none of us do. FP go through litany of what he was told to ask. Why don’t you ask Veco for a job? I know others have, maybe I will. What happened to Musser. Vic responds he did file a complaint and agreed Masek did things illegal and he was uncomfortable about his aide doing this.

Do you believe BA beyond a reasonable doubt. The only money is the money you say in the easter egg tape and ???? You have to rely o Bill Allen’s word.

Puts up chart. this is the jury instruction you will be given, agreed to by all parties. Judge in charge of the law, you’re in charge of the facts.

JI #13 Impeachment evidence of a witness - guilty plea is not evidence against the defendant, you have to judge BA’s testimony. Consider the extent to which his testimony may have been influenced by these factors. Examine his testimony with greater caution than other witnesses - for obvious reasons.

90% of what Sullivan said this morning depends on whether BA is telling the truth.

BTW, one of my relatives said to me long ago. True character is how you act when nobody is watching. BA on the stand, told you, if he knew he was being taped he wouldn’t have said all those things. But true character is how you act when nobody is watching.

You check their demeanor on the stand. His demeanor was pathetic. He has brain problems, Brain injury, - predated any of this. He was pathetic. What else look at for motive. He had to fire sale Veco, Seemed to want sympathy from us because he could only sell Veco for $400-million. He and his family would get only $350-million. Talk about motive. He was able to sell Veco. He was able to get $350-million for his family. More important the govt. threatened to charge his children unless he satisfied the government and did what they told him to do. If he doesn’t satisfy the agreement, then all deals are off. He also got an agreement of $500K to pay for his attorneys.

In evidence you will see the plea agreements. Please read them carefully. A lot of legal mumbo jumbo, but it does say if he does cooperate the gov. will argue to reduce his sentence? How many of us who have children wouldn’t do anything to keep them out of prison.

He’s blasphemous, rude, arrogant, grandiose, intoxicated, and obsessed with power. Apparently, making $1 billion a year was not enough for him and he wanted this pipeline passed. He brags about owning senators and res. And some he did. And some he thought he did. Would you make a critical decision in your life, based on BA’s testimony. Would you even buy a car from Mr. Allen. Seriously, think abut it.

But 90% of the govt.s case rests on BA. They want a verdict based on assumption of guilt. If someone says that in jury, the others have to say that isn’t true. we know innocent are arrested every day. And juries find people guilty every day. Maybe that will disappoint prosecutors and the press, but you need to not disappoint yourself.

How often did you hear VK saying I don’t want any freebie? Do you hear VK saying that? bstevens, kott, BW, anderson saying that.

Objection
Sustained

Did prewit give assistance for free? No he wanted to be paid. There is a prejudice that they just be guilty, but you must put that aside.

Govtl ran into two obstacles. Two 6 foot 6 obstacles
A defendant who would not role over
And a lawyer who believes in the system and believes the govt. has sadly failed in their effort to prove bard. This is the best system in the world, but only if you keep your word. The G has the burden of proof on every count individually. Every count must be looked at individually.

There is a similar instruction - #13. Same instruction for Richard Smith’s testimony

JI about conspiracy. Remember I asked BA what a conspiracy was? He didn’t know. A conspiracy. two people or more agreeing to do something illegal and one of those people takes a substantial step toward that.

J tells you in a very non legal and good way explains to you what C means. It is not necessary that they made a formal agreement or every detail. But it is not enough that they simply met, discussed things of common interest, or perhaps helped each other. You must find there was a plan. Not even enough to have common interests and do things together.

Here what it means to join a conspiracy. On the other hand has no knowledge of the C, but who acts in a way that happens to further the C. One does not become a C by joining with conspirators or knowing the C exists. You have a copy of the JI. Important to read them.

You can’t go back and work to convict Vic if you follow your oath. If the effort is to work to convict it’s the wrong way. The work must be to find if the govt has proven its case beyond a reasonable doubt. Not guilty means not proven.

When you talk about the govt has, consider the plight of mr Robert Hall. Obviously the govt has subpoenaed all of his financial records. He did not run for a senate seat, he did not fire Eric Musser. And the get Hall up and they ask him about his own financial record. That’s the power the government has. The power of the g. is overwhelming.

Never said we are sorry we misled you. That we made mistakes. But they can’t.

Govt. will suggest that I’m putting the govt. on trial or that I’m trying Mr. Al= or Mr. S. That’s not truing. I’m doing what I’m paid to do.
Huge prob with govt is because you have the exhibits. Finally Mr. Allen admitted, the final version they wanted and all the other people voted for that version and all the others did. And Vic never did.

Talk a little about Allen’s testimony when he was at the Kott trial. He paid him because he didn’t have enough money he was sleeping in his office, couldn’t by his daughter a girl scout uniform, not enough to buy a ticket to Oregon. VK told him he was having financial problems. He did not specifically ask me for any money. I just figured out what he needed and I gave it to him . Wasn’t it more than just a gift, wasn't it 50/50 - G had to remind him

In statement of facts, never says anything happening prior to 2006, nothing about prior misconduct in two places. Gov. will tell you well there was another clause about this not being all.

Similar from mr. smith. VK interviewed by FBI for four hours. Completely cooperative. Gave consent to search. took 1000’s of docs from his office. Said he had accepted pers. gifts but it had nothing to do with bribery. Used the word friendship. Talked to FBI about the loan the gov. still wants to make into a payment. Says Mr. A never offered him a consulting job. Talks about getting $100 or so for easter eggs, and that it made a very nice easter.

Mr. K told FBI that veco never instructed him on how to vote, but that Veco was a major constituent and supporter and pointed out he voted against a major bill Veco wanted.

Through the very quickly. First tape, you know my philosophy, I’m not beholden to the industry. Less govt and less taxes. Interested in restructuring. Reluctantly I might go along, I want to hear your thoughts mr. allen

Don’t you dare go crazy or whacko, but I know you will . Mr. Sullivan completely left this out. Mr. S knew VK will go whack. I know your philosophy.

J: Make it clear. If you want to watch the videos, you’ll have to come into the court room. The audio they can listen if they choose.

Conversations between S and PK. Vic’s never voted for a tax bill in 12 years. Never on tape did Vic say he’d be there. He probably said things because they were his supporters, but he thought the money was gifts.

Last one, because important. Number 11 (tape) vic says I don’t want to put any pressure on you, you are my friends, I have credit card debt because of surgery, I can’t go to credit agency because my credit isn’t very good. I need this all to be above board. I don’t want any one to get into hot water, No criticism. etc. loan, and I will make payments.

I want everything done in accordance to the law.

It has to be a real job. [takes lots of these quotes out of context] Asks Smith for $100 drunkenly slurring . GS uniform, here help with GS uniform. VK always believe it a gift.

Aaron’s job - transcript 15. Well I guess he qualifies
16 - what a wonderful time he had for easter, put all the money in the egg as you requested.

You believe that presumption of innocence is enough of ind someone not guilty. this is one of the most important jobs you’ll ever do. You promised to ….. You need to be true to your word. Be your word. 11:07


Mr. Bottini Rebuttal 11:08

Let me start by addressing earlier points Mr. B made about resources of Gov in contrast with client.

He gathered that this investigation going for some time. Prewitt over 4 years ago. Going on for years. Electronic surveillance. started in SEpt 2005 and 2006. Browne wants you to believe all these resources called down on VK. You know that is not true, a mischaracterization. This has been a long running investigation and Mr. Kohring got caught in it.

Somehow the govt. was trying to hide things from you. They didn't call this witness? Do you know how big the subpoenas are - this one page. If he thought there were witnesses you should have heard, he could have called them. He’s had all those recordings. He could have played them. its the button with the little arrow on it.

Tries to compare and contrasts VK with other names TSIt’s true. It doesn’t mean VK is less guilty. Look at all these benefits. $400K in benefits to Sen Stevens. Where did he get that? You’ll see that number in BA’s pea agreement - but that’s what they gave to all these different people, not Stevens. You should take that into consideration and think VK not guilty

He said nothing in recordings where BA brags about owning sens and congressmen. He could have played them. Accuses FP of being a sleazy lobbyist. Didn’t stop this guy from going out to dinner with him and getting his meal paid.

A loan was all they discussed. Talk about giving him a job, and sure they talked about a loan. It wasn't just a loan. He just wanted to solve his problem. RS thought he wanted it taken care of period. Whatever it took. The considered all of those. Loan wasn't good idea. Couldn’t hire him in middle of leg. session, he need the money then Couldn’t give him cash because APO watching.

Talk a minute about Mr.A. Browne says you can't believe anything. You saw BA and his story. Motorcycle accident. Doesn’t affect his thought process, but on his speech and ability to say words Doesn’t affect thought process and memory. He built Veco from ground zero 40 years ago. 2005 pulsating corp 5000 employees $1billion in revenues.

Somehow this addled old man able to run this industry to the end. He was the Chair of the Board of Veco right until they signed the paper with CH2MHil. he has trouble expressing himself and saying words.

He drinks too much. OK, you saw the tape. Had they been drinkin. Yeah they told you that. Was he rambling and out of his head? Of course not. a little harsh language. Two of them by themselves, don’t know any one is recording. It’s rough language. But he knows what he’s talking about. We gotta gt it done. Let me give and example he says, like the other night VK, VK you get up to leave and I gave him $1000. RS says, I know you did, I d know. Ramblings of two drunks? No, they knew what they were talking about . That guy right there got $1000 bucks at the pub….

B. says Allen told you this because he has motive to say all this. Come on. He saw the tape because I knew what I’ done was illegal. He knew his hash was cooked. Handing money to a legislator in the middle of the session. Allen knew it was over right there.

He says you can’t trust anything he says because no corroboration. If mr. Allen is making this up to get leniency or curry favor from the Gov. wouldn't his story be better? He doesn’t say, Here’s $600 to move that bill. That wasn't their relationship. That isn’t what happened. He gave VK 3-4 payments between 2002 and 2006 because he felt sorry for him. He didn’t know he was pulling 80grand 100 grand a year. He also said, he’s not a stupid man. He also said I gave him the money because I wanted him to be loyal to me. He knows if he gives him money over time, he’s got a chit he can call. And he did - don’t run against green, Musser, let the bill out of committee.

Somehow BA had cut this great deal with the Govt. and part of deal was that Veco wouldn’t be prosecuted. Flat untrue. He asked for it, he knew with this cloud, it would affect the employees. He took a haircut on the sale to CH2mhill. Did he sell it for $400Million, of course, but the point is that to say that Veco was motivation to fabricate- that wasn’t part of the bargain.

MR. B talked about $500K severance from Veco, had nothing to do with he govt. came from Veco.

Talk about relationship among these people. Mr. B said the relationship was close, deep bond, at core their mutual love of Russian women. Flat untrue. No evidence. BA said never met VK’s wife or daughter. VK never met BA’s girlfriend. These guys are business associates. Not a bond between close friends exchanging gifts. It’s business. Veco’s business is about oil . VK has something they want. They have something VK wants.

Mr. K , i would submit to you, knows how to play cards. he knows what it took to get Mr. Allen into giving him things. He turned him into an ATM machine. He knew all he had to do was plant the seed in BA’s mind, that I don’t have money to do something and he would get the money. mr. K played this like a fiddle. When does he decide to go up and look for help - the debt was around for a while, the records in evidence. One of the fist thing K says is, “this could help me politically.” He knows what he’s doing, not by coincidence he picks the middle of the leg session that he does this. They have this key leg on the floor, he knows how critical, he picks this time. Any ideas how I can solve this? He then offers ideas - job, loan, payment - to solve his problem.

Interesting when you listen to these phone calls between K and S. A series. Starting about 3/19, til he tells RS I need to talk to you guys. The calls build to a crescendo. he starts telling Sm what he can do. Lobby on your behalf. Conveying the message before he gets into that room I there for you.

Why these guys? Why BA RS and Veco for help? Look at the timing. Why not Mr. Hall, he appears to be a successful businessman and they are friends.

B says there is nothing wrong with a legislator carrying the ball for someone who gives him a campaign contribution. Handing people a pocketful of cash in the middle of the legislative session isn’t a campaign contribution.

Do personal friends ask each other for gifs? No, this is a business transaction.

What does VK have these guys want? All he’s got is the sign he has on his door. He took that sign off the door and handed it to Mr. Allen, but doesn’t give it to him. He sold it to him.

they have this specific discussion about what mr. K can and will do for them. He doesn’t say, I’ll se if I can politely influence them.

Aaron Kohring got a w-s for the work he did. This guy should have gotten one too. He was a frequent flyer with Joyce Anderson. Should have had her on speed dial.

Vanderploeg tells K heres what we’re looking at, things you got for your personal benefit and campaign . AV asks can you elaborate? He pauses and says, I’ d like to think about it. Then he calls them gifts. He goes, oh o, I know where these guys are going, he switches to calling them gifts.

Ladies and Gentleman. The evidence is clear. Mr. K traded on his government office - it was all he had- for gifts and pyaments. that’s what this case is about.

Pulls out chart.

Mr. B says govt. hasn’t proven this case. We would submit the evidence proves well beyond a reasonable doubt. We have proven it beyond a reasonable doubt and he’s guilty.

J. Thank you mr. B can you remove the easel? 11?37

Now it is my duty to instruct you on the laws. Copy of these Jury Instructions in the jury room