Kott Trial Day 2 - Judge Sedwick

Judge Sedwick at 4pm today was still asking jurors questions. He'd started at 9am and this was continued from yesterday morning. And he still was talking in a very patient and understanding voice as though he hadn't been asking the same questions all day. He manages to be respectful of each juror (and each attorney). He is able to translate the legal jargon into understandable prose without it sounding like he is talking down. He even injects humor now and then without diminishing the seriousness of the situation. He sets up fairly complicated hypotheticals - "I have no idea how the jury will vote, but suppose, theoretically, that they vote Kott not guilty of one or two counts, or all counts, and I'm not saying they will or should happen, would your being on the jury impact your relationships with your law enforcement friends?" - that are painstakingly impartial and easy to understand. I'm very impressed with how he runs the court room.

That said, someone had told me that some attorneys don't like to go to Federal Court because the judge plays such a large role in jury selection. And it is taking a long, long time. But since Weyhrauch was split out of this trial, and they agreed not to begin opening arguments until Monday, there should be plenty of time.

Kott Trial Day 2 - Jury Selection, Down to 60 or so

U.S. District Court for the District of Alaska
Court Calendar for Thursday, September 6, 2007




9:00 AM 3:07-CR-00056-JWS
Judge Sedwick Anchorage Courtroom 3
USA vs. PETER KOTT
TRIAL BY JURY - DAY 2

I figured at the pace they did individual jury questioning yesterday, about what they knew about the case (in court without others from the jury pool in the room), that it was going to take at least seven more hours. It was all pretty repetitive and I had another meeting to go to at noon today, so I didn't think I'd miss much.

I got there at 3:30 pm. The observers' seats were packed with jurors. I found a seat in the back next to Lisa Demer, ADN reporter, who was taking notes on her laptop. (Along with cell phones, the recent order also permitted credentialed journalists to bring laptops into the courtroom. The mainstream journalists suggested I print up a business card that identifies me as a blogger. I'll have to decide whether it's worth the hassle. But if the building is wireless I could blog live. I don't even know how to do that on blogger. We'll see.)

I did a quick headcount and figured there were about 60 jurors still there. Later Lisa said the attorneys had said 65 were left. If they are supposed to be representative of Alaskans, it was clearly way overrepresented by women and overweight folks. It looked pretty white as well, but ethnicity is more difficult to determine visually. There were a few African-Americans; others who might have been Asian or Alaska Native or Hispanic.

The judge was asking questions when I got there.

• Is there anyone who has experience with the judicial system? A few people had been involved in court cases or had relatives who had.
• Have you or anyone close to you worked as a lawyer?
• My husband is a lawyer. Q: Can you be impartial? Yes.
  Q: Do any of the attorneys have a question? No.
• Have you or anyone close to you been a legislator in Alaska or another state? Nobody.
• Have you or anyone close to you run for political office?
• An older gentleman had run for sheriff in Eugene, Oregon, in the 60s, but he'd been beaten by a Democrat
• Mom was on the School Board in Rural Alaska. Q: Did you help in her campaign? Well it was in a village. She said, they know me and will vote for me. There was no campaign.
  
• My brother ran for something local, not sure what, lost to Mystrom before he was anybody
• I guess this is a good time to disclose this now. My husband and I are good friends with Ben Stevens. The men fished together in the 70s. Q: Stevens isn't a defendant and won't be a witness, but his name will be mentioned. If the jury were to have a verdict (either guilty or not guilty) that could reflect badly on Stevens, would that affect your relationship with the Stevens family? I don't think so. I could handle it, I would hope he could. Q: Do you have any reservations? More because I have a teenage daughter. Q: Attorneys, any questions? No. She went back to her seat.
  
• Have you or anyone close to you worked for the legislator? Nobody.
• Have you or anyone close to you worked on Kott's campaign? Nobody. (Remember these are people who have already said they haven't been biased by news reports. Many have said they don't know much or anything about the issues, though a fair number knew Ben Stevens' name and that he's been implicated. Getting his jury, if it comes to that, will be even more difficult. But this group was not likely to have people active in politics.)
• Have you or anyone close to you worked in a campaign against Kott? Nobody.
• Have you or anyone close to you been an officer in a political party?
• A younger man got up and started talking about police officers. The judge clarified it as political officers.
• The man who ran for sheriff in Oregon had been an officer in a political party there. Q: What about the Republican party in Alaska? Or maybe you switched parties so you could win? No politics in Alaska.
• Do you hold strong opinions about politicians in general?
• The young man who had family members in the police department came to the mike again. Q: Positive or negative opinions? In between Q: Can you explain? A lot of family members work for government and I want to work for government. I'd be more likely to vote with the government. Q: Because it would affect your father? Maybe. Police and fire fighters in the family. Q: Would this affect your decisions? It would always be in the back of my mind. OK, EXCUSED for jury duty.
• Have you or anyone close to you served as a law enforcement officer?
• There were several people who had or still were in corrections or had relatives in corrections. One had a brother-in-law in corrections in New York state. He talked to him twice a week. Brother-in-law worked with white collar criminals. He himself had been a military police officer and said he wasn't sure he could be impartial. EXCUSED.

It was now 4:37pm and the jury pool was dismissed. It appeared the judge still had more questions for the whole group. There were still about 60 jurors. This still has to be whittled down to 12 plus alternates. After the jurors were gone the judge asked if there was other business to be settled among the attorneys.

Kott's attorneys asked about how many preemptions they still had now that Weyhrauch was not part of the trial. Judge Sedwick said he'd intended to give each defendant 6, but since there was now only one, he'd give Kott 11. Lisa said the government had 6. So, assuming that they don't knock off the same jurors, that still leaves over 40 in the pool.

Then they discussed what the government was going to have in the audio tapes concerning Kott's medication. This had been excluded and yesterday the ADN had published the story that Allen had given Kott two pills at one point and the defense had gotten this excluded. The government said that they had edited out the main discussion of this, but it was referenced in another clip and they didn't think they could edit it out, but that it really was just a passing reference that shouldn't be an issue. There was also something about hats that the government was planning to have. Not clear what that was about.

And then I left.

Kott Trial - Day 1 - Morning Review & Jury Selection

Attorney Doug Pope talking to press after his client Bruce Weyhrauch's case was split from Peter Kott's. When asked when he thought the case would be heard, he said probably 2009.



I checked the court schedule before going to bed and so discovered there was an 8am pre-trial meeting scheduled. The ADN website already had its morning article on the case, saying that the government was appealing the ruling disallowing them to argue that state laws required Kott and Weyhrauch report that they were negotiating for jobs with Veco. It seemed like a pretty important point, so I struggled to get there by 8am. When I did get there ADN reporter Rich Mauer was outside the courtroom as were others. Already, just 15 minutes in, there was a recess as the attorneys were deciding which cards to play.

The government wanted to appeal Judge Sedwick's decision to the 9th Circuit, but only for Weyhrauch. Thus, if the two defendants remained in a single case, the case would have to be postponed. The defendant's attorneys, who had previously asked to split the cases and had their motion rejected, had prepared for a joint case. So what should they do?

Doug Pope, Weyhrauch's attorney argued that there was a 1979 case that set a precedent here. (Sorry, it sounded like Loudrock, but I couldn't figure out the spelling.) If the government were appealing to delay the case, the district judge could just dismiss the case. The government said there were other aspects to the case that were in its favor. Kott's attorney, James Wendt, when asked, said they wanted to continue with their trial, but given the changes and the possible severing of the two cases, needed more time to prepare witness questioning strategy. He requested that if the Kott only trial continued, that the opening arguments not start before Monday, that government reveal if they are going to call Bill Allen and Rick Smith as witnesses, and if they are, when.

Government agreed to those requests, except they said they couldn't predict what day they would appear, if they appeared. The agreed to disclose the witness order. Then there was another recess as the judge went to read the cases.

So this led to waiting around in the Federal Building until the judge was ready. In this picture, KTUU Reporter Bill McAllister is calling in.

And in this picture, there's an unidentified KTUU Cameraperson, Bill Roth of the ADN, Lisa Demer of the ADN, and Michael Carey waiting for the attorneys and defendants to return to the courtroom. I'm a little shy about taking pictures of people without at least their tacit approval. The news folks didn't object and I figure they ought to be on the other side now and then.

I reported the decision to split the cases in an earlier brief post. (There were two public use computers in the Federal Building cafeteria.) There was another break after Weyhrauch's side was taken out of this trial.


Jury selection began around 11:10. The whole jury pool was brought into the courtroom. Those of us still there were asked to move to the front as about 80 jurors came in. There was to be a two part questioning. The judge apologized several times for the lengthiness of the jury selection, but given the extensive publicity in this case, he wanted to be sure none of the jurors was already biased.

So most of the jury, after some explanation and swearing in, was excused back to an early lunch, except for ten. These ten, randomly selected, were individually questioned, without any other jurors in the room, about what they've read or heard about the case and their feelings about the defendant. It took the first ten from 11:30am to 12:30pm. Only seventy left to go. There were only four or five of us in the audience still left and after the first ten, I decided I didn't need to stay longer. At this rate it will be noon tomorrow til they're finished with this part, and will begin the regular jury questioning.

Kott and Weyhrauch Cases Severed

The judge came back into court at 10:30am after reading the cases and decided that the Government could appeal his ruling to the 9th Circuit and that this would require the cases be severed. The Kott case jury selection begins next.

Kott-Weyhrauch Pre-Trial 4 - Sparring over Technical Matters

The government's attorneys have said they now want to split the two cases so they can appeal the judge's ruling not to include the claim that Kott and Weyhrauch were required by state law to disclose that they were negotiating with VECO for jobs.

Weyhrauch had tried to sever the cases before and the government opposed it. Now the government wants them severed so they can appeal the ruling in Weyhrauch's case, but not Kott's. They have lots of other things on Kott.

Weyhrauch's attorney, Doug Pope, argued that a case in the 9th circuit allowed the judge to dismiss charges if he found the Government was using the appeal as a delaying tactic. So things are in recess as the judge reads the related cases.

On another note, I mentioned that John McKay is the attorney for KTUU and the Daily News who are 'interested parties' in the case. One thing he's gotten for them is that journalists can now bring the cell phones past the security.

More later.

Kott/Weyhrauch Pre-Trial 3 - The Charges

[Note: I'm not an attorney. If I get something wrong here and you are an attorney or otherwise know this stuff, please leave a comment to correct it. I'll try to qualify everything as I write. This is all "as I understand it" and as best as I can read my notes.]

From the Case Summary in the Court Computer System (available free in the Clerk's Office 2nd Floor of the Anchorage Federal Building and from the May 3, 2007 indictment)
Count 1: 18:371 Conspiring to commit extortion under color of official right, bribery, and honest services mail and wire fraud. (As I understand this from the Anderson trial, 'color of official right' relates to the defendants having been public officials and thus were doing things in that capacity.)

Count 2: 18:1951(a) and 2 Interference with commerce by extortion induced under color of official right.

[The Summary skips from Count 2 to Count 4. The May 5 Indictment has "(Kott)" written at the end of Count 2 and adds Count 3. Count 3 is the same as Count 2 except a) it has 'Attempted" at the beginning and "(Weyhrauch).

Count 4: 18:666(a)(1)(B) [Some might think Devil worshipers wrote this part of the code] Bribery concerning programs receiving Federal Funds. (I think this refers to grants and other government programs receiving a minimum amount of federal funding. I think in the Anderson trial it was $10,000 - and that was why they kept asking witnesses how much federal funding their agencies received.)

[In the May 5 indictment Count 4 ends with "(Kott)" and Count 5 is identical except "(Weyhrauch)" is at the end.]]

Count 6:18:1343, 1346 an 2. Honest Services Wire Fraud.
Again - Count 6 is for "(Kott)" and Count 7 is for "(Weyhrauch)" in the indictment.


The Indictment Basically covers:

Introductory/Summary Material (P.1-2)

• NAMES OF ALL THE ATTORNEYS
• LIST OF DEFENDANTS AND BRIEF SUMMARY OF CHARGES
  

INDICTMENT (P. 2)

COUNT ONE (P. 2-21)

• General Allegations (pp. 3-4 lists key players/entities in case)
• Peter Kott
• Kott's Hardwood Flooring
• Bruce Weyhrauch
• Company A [clearly VECO]
• Alaska State Legislature (of which Kott and Weyhrauch were members and which had business with Company A)
• Company [A] CEO [Bill Allen]
• Company [A] Vice President [Rick Smith]
• State Senator A [Confirmed this week by Judge Sedwick as Ben Stevens]
• Political Polling company with offices in Anchorage [Some blogs and Wikipedia I assume this is as Dittman Research but I couldn't find a more solid source for this.]
• Suite 604 of a Juneau Hotel [The Baranof] rented by Company A CEO and VP and others.

• Alaska's Intra-State Natural Gas Pipeline (pp. 4-5)

[Discusses the legislative battle over the pipeline and Company A's interest in this.]

• The Conspiracy (pp. 6-7)
• (A) Kott and Weyhrauch "unlawfully obtain[ed] ... money and other property... in agreement for the performance of official acts, in violation of Title 18..."
• (B) 'corruptly solicit ..anything of value ...for KOTT and WEYHRAUCH ... while an agent for the State...an entity that received more than $10,000 in federal funding [the minimum necessary amount under the charge] ...with the intent . . . would each be influence and rewarded ..."
• (C) "to devise...a scheme...to defraud...the State of its intangible right to honest services and for the purpose of executing the scheme . . . to ...transmit . . . writing and sounds . . .in communications in interstate commerce by means of wire...in the US mails in violation of Title 18..."
• Objects of the Conspiracy (pp. 7-8)
• To provide Kott with money and future employment when he left the legislature for legislative favors
• To provide Weyhrauch with money for legislative favors
• For both to use the US mails to carry this out
• Manner and Means of the Conspiracy (pp8-9)
  
• Both (1) 'voting in favor of versions of the PPT [Petroleum Production Tax] bill supported by Company CEO...VP, Company A, and the oil producers
• Both (2) "lobbying other elected public officials to support versions of the PPT bill that [Company A and friends] favored; and"
• Both (3) "offering to assist and help [Company A and friends] by providing official support for the natural gas pipeline legislation and the PPT bill."
• For Kott, additionally, that he got some illegal payments through invoices for flooring work through Kott Hardwood Flooring.
• For Weyhrauch, that he got extra contractual legal work from Company A.
• Overt Acts (pp. 9-21)
• [Each paragraph in the indictment is numbered. As you can see there are 13 pages listing overt acts, starting with paragraph #23 - 75, for over 50. They sound like this:]
• "24. On or about September 26, 2005. . .in discussing the PPT tax issue and the natural gas pipeline legislation KOTT again told COMPANY VP, 'I just want to be the warden in Barbados' to which COMPANY VP replied that he wanted the 'gas pipeline.'"
• "27. On January 10, 2006, in a telephone call, KOTT assured COMPANY CEO that KOTT would deliver the gas pipeline legislation for COMPANY CEO as follows,
  

• KOTT: I'm going to get this fucking gas line done so I can get out of here.
• COMPANY CEO: Get the gas, get the gas.
• KOTT: That's my commitment to you, so...

• "32. On or about March 29, 2006, KOTT met with COMPANY VP and COMPANY CEO in Suite 604 and described how KOTT had attempted to gain everage over another member of the alaska State Legislature by placing a "hold" on a bill that was important to that state legislator, and how KOTT hoped to use that leverage to get support for COMPANY A's preferred version of the PPT tax bill.
  

• "72. On or about July 31, 2006, COMPANY CEO and KOTT discussed how to come up with a "foolproof" plan to get KOTT the additional money."

• COUNT TWO (pp. 21-22)
  

• Interference with Commerce by extortion.... [This pretty much just says each knowingly did this]
  

• COUNT FOUR (pp. 23)

The rest is pretty much the same. Listing the count and saying they did it. Counts 6 (p.26) and 7 (p. 27) list specific acts each did - Kott confirming his commitment to COMPANY A by phone AND Weyhrauch writing a letter asking for a job.

Again, this is pretty much an overview of the May 3, 2007 indictment) where you can find more details.

MirksomeBogle Blog Problems

I went to the MirksomeBogle blog the other day only to get this message.



Then I noticed this in Blogger Buzz.



So Mirk, if you drop in here, you'll know why I haven't dropped into your site for a few days. Don't know if the malware is your problem, but I can't get in.

Kott/Wehrauch Pre-Trial 2 The Other Attorneys

Finding information on the attorneys for the Government is more difficult. So I'll serve up what little I can. The Court Documents I looked at Friday listed the following attorneys for the government:

Joseph W. Bottini
James A. Goeke
Edward P. Sullivan

We learn a little more about each from this FBI press release May 4, 2007, when the grand jury indictments were released. Marsh worked with Bottini on the Anderson trial.

This case is being prosecuted by trial attorneys Nicholas A. Marsh and Edward P. Sullivan of the Criminal Division’s Public Integrity Section, headed by Chief William M. Welch, II, and Assistant U.S. Attorneys Joseph W. Bottini and James A. Goeke from the District of Alaska. The case is being investigated by the Federal Bureau of Investigation and the Internal Revenue Service Criminal Investigative Division.

From the United States Attorney Office - District of Alaska webpage. we learn about some past US Attorneys in Alaska:

United States Attorney - Later Years

Other prominent United States Attorneys served this district. Joseph W. Kehoe (1934-1942) gained recognition as a watercolor artist of Alaskan scenes. Warren N. Cuddy (1929-1933) founded the First National Bank of Anchorage, one of Alaska's two largest banking enterprises. Ralph Julian Rivers (1933-1944) was Alaska's first elected Representative in Congress, serving from 1959 to 1966. Theodore Fulton (Ted) Stevens was appointed in Fairbanks from 1954 to 1956 and later elected Senator in 1968. Michael Spaan (1981-1989) served the longest term as a United States Attorney for this district. He also personally tried the longest criminal case in the history of the state which resulted in RICO, fraud, and extortion convictions of two well-known lobbyists and political brokers. Spaan also gained widespread reputation for this vigorous enforcement of laws designed to protect Alaska's rich fishing grounds.

What I hadn't expected to see was an attorney listed for the Anchorage Daily News and KTUU, who were listed as "interested parties." Their attorney is John McKay. An article from April 2007 about him receiving the First Amendment Award from the Alaska Press Club says:

McKay's many legal victories include a unanimous Alaska Supreme Court decision about the people's right to know the details of legal-settlement payments after a public institution such as a school district gets sued.
McKay's fingerprints are all over Alaska's open meetings and open records law and its interpretation, be that testifying at hearings, arguing in court, leading open-government workshops, publishing open-government handbooks, or offering legal advice to a reporter, an elected official or just an average citizen.
He's taught communication law at the University of Alaska Anchorage since 1984. He has helped train Russian journalists. He's defended educators punished for exercising their free speech rights. And on and on.

For more go here.

I was a bit curious about the media being an interested party, when who should walk in? John McKay himself. So I asked him what his role in all this was. He said it was to petition to keep the as much of the trial open to the public as possible and to get access to evidence - such as the audio and video materials the Federal Government uses in the trials - as soon as possible. He said it took a month to get the video from the Anderson trial, for example.

Costco Strawberries

Costco strawberries come in these large clear plastic boxes. You can see the fruit on top, on the sides, and on the bottom. But not in the middle. Here's what was usable and what was not. And a close up of the compost pile addition. And I can't take them back - though I'm sure they'd give me my money back. They're good about that.

Kott/Weyhrauch Pre Trial 1

I went to the US District Court Clerk's office today to see what their public computers might tell me about the upcoming trials of Pete Kott and Bruce Weyhrauch. For one thing it listed all the attorneys. In this post I'll give a little background I found through Google on the defendants' attorneys.



Bruce Weyhrauch’s attorneys


Ray R. Brown has been a shareholder in the firm since 1994. His legal interests are centered on complex civil litigation and trial practice. He is particularly interested in plaintiff's medical malpractice and litigation that involves the use of scientific or technical expertise. Ray graduated cum laude from Gonzaga University School of Law in 1981. He has an undergraduate degree in accounting from the University of Texas at Arlington. He has also attended and completed the Trial Practice Institute of the National Criminal Defense College at Mercer Law School.

Following law school and his admission to the bar, Ray served as a senior felony trial attorney and later as the training director for the Alaska Public Defender Agency. He also served as an Assistant District Attorney with the State of Alaska Department of Law, Criminal Division. Following a successful career in the criminal justice system, Ray decided to pursue a civil practice.

Ray's main areas of civil practice include plaintiff's medical malpractice, employee side labor law, class action litigation and serious injury or death cases.

He has tried to verdict more than 150 cases. He is "AV" rated by Martindale-Hubbell and is listed in the Best Lawyers in America since 2003. He served on the Alaska Bar Association Board of Governors (1995-98), and is a frequent presenter at Trial Advocacy programs both in Alaska and in the lower 48. He is a member of the Alaska Academy of Trial Lawyers, Association of Trial Lawyers of America and the National Association of Criminal Defense Lawyers. He loves traveling, his family and his two dogs. Source



Douglas Pope
Member

Practice Areas: Civil Practice; Personal Injury; Products Liability; Wrongful Discharge; Antitrust; Commercial Torts; Corporate Law; Constitutional Law; Appellate Practice.

Admitted: 1973, Alaska; 1974, U.S. District Court, District of Alaska; 1976, U.S. Court of Appeals, Ninth Circuit; 1978, U.S. Supreme Court

Law School: Willamette University, J.D., 1973

College: University of Alaska, B.S., 1970

Member: Alaska and American Bar Associations; The Association of Trial Lawyers of America; National Association of Criminal Defense Lawyers; Alaska Academy of Trial Lawyers.

Biography: (Also Member, Pope & Katcher)

Reported Cases: Hammond v. Hickel, 588 P.2d 256 (Alaska 1978); Brown v. United States, 665 F.2d 271 (9th Cir. 1982); Johns v. Commercial Fisheries Entry Comm., 699 P.2d 334 (Alaska 1985); Hickel v. Cowper, 874 P.2d 922 (Alaska 1994); Capital Info. Group v. Office of Governor, 923 A.2d 29 (Alaska 1996); Brooks v. Wright, 971 P.2d 1025 (Alaska 1999); Chijide v. Maniilaq Assoc. of Kotz., 972 P.2d 167 (Alaska, 1999); Cable v. Shefchik, 985 P.2d 474 (Alaska, 1999).

Born: Fairbanks, Alaska, June 1, 1945
Source





Pete Kott's Attorneys

Margaret R. Simonian ("Meg") joined Friedman, Rubin & White in 2003. Her prior experience includes a successful career as a criminal defense attorney at the Alaska Public Defender's Office and the Office of Public Advocacy. In this capacity she gained valuable trial skills. Before that, she served as a law clerk for Judge Eric Sanders on the Alaska Superior Court. She is a member of the Criminal Pattern Jury Instructions Committee, the Alaska Trust Board of the Alaska Trial Lawyers Association and the Planning and Zoning Commission.

Meg was born and raised in Alaska. She graduated with honors from the University of Alaska. While an undergraduate, she was a national debate champion and nationally honored as a Truman Scholar. She graduated from Northeastern University School of Law in 1997. She is admitted to practice in Alaska.

Source


James A. Wendt

I couldn't find a bio on Wendt. I couldn't find a law firm website. Just the bare minimum. From martindale.com I got this:

James A. Wendt
Anchorage, Alaska
(Third Judicial District)

Featured BV Peer Review Rated Lawyer Source

He did run in the Humpy’s Half Marathon August 16, 2007 finishing at a pretty respectable pace for his age group. He came in 104th out of 200 finishers listed at 1:56:43, a 8:55 miles/per minute pace. Not bad for 58 years old.


Brown was supposed to teach a seminar for the Alaska Bar Association on September 14, but he's been replaced - presumably because he expects this trial not to be finished. We was going to teach "Look Good" Cross-Examination with Terry MacCarthy which covers:

• The 3 Types of Cross
• How to Tell Your Story Persuasively through Cross to the Jury
• How to Structure Your Cross with Transitions and Looping
• How to Control Your Witness Without Appearing Overbearing
• How to Elicit and Reinforce Helpful Information from Your Witness
• How to Use Short Statements Effectively
• How to Respond to Objections

Maybe we can watch for these in the courtroom.