Blog Office

It's September already. Soon this office will have to be closed until spring. But in the meantime, it's my favorite place to work.

Kott Trial Day 3 - Behind the Scenes

After the trial was recessed til Monday, I went up to the clerk's office to see if I could find the ruling about press being able to bring their cell phones past security and to use their computers in the courtroom. I couldn't.

They even leave the lobby with the computers open while the office is closed for lunch. I wasn't able to find the order I was looking for. But the docket is full of motions and orders. It looks like this:





I left this a pretty big file so you could click on it and enlarge it if you actually wanted to read it. There are 18 items on the docket just since September 1. Here are the last few.


And here are the official minutes for today.

I'm going to miss the first two days of the actual trial because I'm going to a meeting in Juneau of the statewide steering committee for the Delta project on preventing intimate partner violence in Alaska. So check out www.adn.com for the latest news of the trial. Lisa Demer is there almost all the time.

Kott Trial Day 3 - Jury seated, Trial Resumes Monday

U.S. District Court for the District of Alaska
Court Calendar for Friday, September 7, 2007

9:00 AM 3:07-CR-00056-01-JWS

Judge Sedwick Anchorage Courtroom 3
USA vs. PETER KOTT
TRIAL BY JURY - DAY 3

I didn't get to the courtroom til 11:15am today. By then there were twelve or thirteen people sitting in the jury seats - just two two men, one African-American, a few who might be Alaska Native or Hispanic or Asian, most white - and twenty five more sitting in the audience. They were selecting the alternates. The basic questions they were answering were about where they lived, jobs, hobbies, bumper stickers, have they written letters to the editor, kids, prior jury duty, education level.

When they were done, each side had two peremptory challenges left. They gave them to the clerk who then showed the opposing attorneys. My notes are confusing here. I think four names were read. Two people sitting in the jury box were excused and two who had just been interviewed as alternates. Of the later two, the older woman with the GED was excused and the truck driver with the Marine Corps stickers was excused. Then three or four more names were picked randomly to fill in the 12 jurors and 4 alternates. A lot of the jury pool had been eliminated before I got there. It appeared to me that woman who said yesterday that shea nd her husband were friends of Ben Stevens was gone.

Then the judge gave an overview to the jury. This is a criminal case brought by the government. The indictment is only a set of charges and does not indicate guily.

Government must prove its case byond a reasonable doubt. Not beyond all possible doubt. The jury must be convinced by the evidence or lack of evidence.

The government has the burden to prove that the defendant is guilty.

The defense has no obligation to prove innocence - they need not present any evidence if they so choose.

There will be opening statements - Monday. These are not evidence, but rather they will describe what evidence they will show and why it is relevant. The government will will direct examine the witnesses, the defense can cross examine, and possibly more.

After the government, the defense may present, but is under no obligation.

Then closing arguments. Again, this is not evidence. Since the government must prove its case, it goes first, then defense, and the government last.

The decision of the jury must be unanimous. You are the sole determinants of the facts. The law will be given by the court, you determine the facts. And only from the evidence given, not from other sources. Don't consider anything heard outside the courtroom. Avoid contact with the news media. If you want to read the sports section, have someone else go through the paper and pull out anything about the trial. The media are doing their job, but it isn't what they think, but what you think that matters. Don't do any other research, all must make their decisions based on the same evidence.

You can judge what the witnesses say based on their ability to see, hear, or know things they talk about, their memory, their manner, their interest in the outcome, whether they contradict themselves or are contradicted by others.

No remark I make should be interpreted as my opinion. If I admonish a lawyer, you should have no prejudice against the lawyer.

Don't worry about the sentence, only whether the defendant is guilty or not. My job is to deal with the sentence.

Don't discuss the case with anyone, even the other jurors, until you begin deliberations.

We'll run from 9am to 4:30pm, with 10-15 minute breaks in the morning and afternoon. We'll break for lunch as close to noon as we can. Jury should be back at 1:15 and we resume at 1:30.

Pay close attention. There is no written transcript. You must rely on your memories. You may take notes, but keep them to yourself until you're in the jury room. You'll leave your notes in the court when you go home. We'll provide paper and pens.

(I'm sure I left some minor details out, and I hope this fairly represents what the judge said.)

Q: I live in Kodiak, can I go home this weekend? A: Yes [My question - who pays for transportation and housing for jurors who have to travel to Anchorage?]
Q: How long will the trial take? A: At longest, til the end of the month. My estimate is two weeks or less.

At 11:50 am the jury was excused til Monday morning.

After the jury left, there was discussion among the attorneys and the judge.

The government is going to provide evidence that Dave Dittman conducted political polls for Kott that were paid for by Bill Allen and/or Rick Smith. The defense wants to present as evidence that Allen and Smith paid Dittman for polls about a number of other candidates they were interested in and this was a legitimate business interest of theirs. They did this as individuals and not as Veco. The government argued this was irrelevant. They are supposed to either resolve this or submit motions.

As best as I could tell, some of the tapes have been 'minimized' which from the discussion, I understood to mean, the recordings were turned off and there are missing portions. There was already a stipulation that FBI agents who did the recording would be available to the defense. But the defense wanted them to be there for six or seven sections so they could explain why the tapes were turned off, what rules they had for what to record or not record. It was suggested by the judge, I think, that the defense was free to call them as witnesses for the defense. Attorney Wendt said he did not want to call the FBI as witnesses. The judge said he couldn't tell the government whom to call as witnesses. They will file motions tonight and tomorrow so the judge can rule before the opening statements on Monday.

The court recessed around 12:20pm until Monday at 9am. After I asked Lisa Demer if the government had said whether they were going to call Bill Allen and Rick Smith of Veco as witnesses. She said, no, they have until 4:30 to file that.

Alaska Action Research Consortium Meeting

I went to a meeting of the Alaska Action Research Consortium today at Akeela House. The group 's sparkplug is Jim Sellers, the director of Akeela House in Anchorage. The intent is to get funding for research that can have an immediate, positive impact on Alaskan social and health problems. He's paired up with the Pacific Institute for Research and Evaluation, PIRE, a national research non-profit which helps get expertise and funding to supplement what's available in Alaska. Brian Saylor, one of the participants today said that PIRE was unique among the Outside research institutes that do research in Alaska. The others tend srtip Alaskans of their expertise and understanding of local conditions, and then write up the research as their own. But PIRE's Alaskan partners play an integral role in the work as well as the citations and grant monies.

A number of PIRE's outside researchers were at the meeting. They are up here for an all day Symposium at UAA tomorrow. Below is a description from the Alaska Department of Health and Social Services' website but doesn't seem to be too comprehensive, but it is free to the public from FRIDAY, SEPTEMBER 7 staring at 8am.

“Prevention Research in Alaska: Scientific and Community Experiences in Preventing Youth’s Use of Inhalants & Other Harmful Legal Products.” Hosted by the University of Alaska Anchorage. Sponsored by the Alaska Action Research Consortium. Friday, September 7, 2007 - 8:00 a.m. to 4:30 pm at the UAA Consortium Library, Room 307a. For information contact Kristen Ogilvie via e-mail at kogilvie@pire.org.

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.