OLÉ - The Innocence Project: "50 To 150 People In Alaska Prisons Are Innocent"

It's sort of like I ordered way more off the menu than I'm going to be able to eat.  Yesterday was the Pecha Kucha (pronounce in the four syllables you see) class and today began with the Innocence Project and the Pebble Mine.  And I seem to be coming down with a cold.  

But let me get a little up here since I didn't post yesterday.  Let's get some of the Innocence Project up.  This is the work of saints - helping people wrongly convicted to get out of prison.  The speakers were Mark Johnson, (sitting) the head of the board for the IP, and Bill Oberly the employee who does most of the work.  I took the picture after the presentation when they were answering individual questions.  

Every time I read about a prisoner getting out of prison after 10, 15, 30 years because of evidence that clearly exonerates them, or a confession by another of the crime, it breaks my heart thinking of someone taken from the family and thrown into a cell.  For example from The National Registry of Exonerations.

Many prisons are inhumane for guilty prisoners.  Imagine if you didn't do the crime.  

If imagining that is hard to do, watch Netflix's When They See Us*  about five teenagers who were imprisoned for a rape they didn't commit because of a prosecutor who coerced confessions and ignored evidence that didn't fit her story.   This is the story of the kids convicted of the Central Park jogger rape.  I confess, that I didn't want to watch it, but saw it was getting awards and so we decided to try the first episode.  It's mostly painful, but the actual rapists eventually confesses (after meeting one of the five in prison) and they do get out.  There's an extra episode which is an Oprah show of sorts (she was the producer I think) where all the actors who played the boys and their older selves are interviewed.  And then the original real prisoners are interviewed as well.  

*This is not a great link here, but when I link to Netflix, to goes to my subscription which won't work for others.  It may go to the right place for other Netflix subscribers, I don't know.  And reviews at Washington Post and New York Times have paywalls.  You might also want to check Wikipedia.  

It's pretty powerful, and one line from the film's director really caught my attention.  She challenged people who talk about the system being broken.  It's not broken, she said, it was designed that way.  And when it comes to people of color and poor folks that seems to be accurate.  

So that was my most recent connection to this sort of injustice and was good background for understanding the enormity of the wrongs that the Innocence Project tries to right.  

A little bit from today's class from my notes.  

Innocence Project's MISSION

1. Identify , investigate, and exonerate individuals who have been wrongly convicted in the State of Alaska
2.  Education - doing that today (at OLÉ).  Provide ed opportunities for advocates and for the public that foster a culture that champions the defense of the innocent.  
3. Implement policies, practices, and reforms  that will prevent wrongful convictions and hasten the identification and release of innocent persons.

Number 1 is the main priority.  

History

The Alaska IP is part of a national Innocence Network   All independent, but share experiences, best practices.  There originally was just one, but it became clear quickly that they couldn't cover the whole country.  A Northwest PI was started, but they couldn't even handle all of Washington, let alone the rest of their territory.  Alaska's Project Innocence began in 2006.  

The Project has 6 criteria for accepting cases.

1. Individual is incarcerated
2. Individual has at least two years remaining on sentence.
3. Factually, the client is actually innocent.  (They don't work on technical legal issues for people who aren't innocent.)
4. Evidence is available which may prove actual innocence
5. Individual has exhausted all court actions under the facts of the criminal conviction upon which the individual is incarcerated where the individual has appointed counsel as a matter of right
6. Notwithstanding numbers 1 through 5, the Board of the Alaska Innocence Project may accept any case at its discretion.  (but number 1 - actual innocence - is necessary)

They said that research suggests that 1-3% of people in prison are innocent.  Given Alaska's prison population, that means 50 - 150 people!   

The only people exonerated so far through the Alaska Innocence Project have been the Fairbanks Four, which is a big deal.  There are more potential cases in the pipeline.  

Here's a link to their website.  You can find more there.  We've got three more session on this topic.    

Sorry for such a truncated post, but really need to get to bed.  I have a 9am class on State and Federal Courts tomorrow and a 3pm class on Homelessness.  

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.

A Thinking Break

So, does that mean a break from thinking?  Or a break so I can think?  More the latter, but it's the thoughts invading my brain more than my deliberately saying, "Whoa, I need to stop and think a while."

So this post is just a brief (yeah, that's always my intent) overview of the action taking place in my brain, in hopes of not forgetting the many loose ends.  [And it didn't stay brief so I'm adding an overview so you don't get lost in the meanderings.]

• OLÉ classes - Project Innocence and the Fairbanks Four  and a proposal for police to have Devil's Advocates keeping them from straying after the wrong suspects
• OLÉ classes - Homelessness 
• The Struggle for Modern Tibet
• Dan Sullivan and the tension between loyalty and the rule of law and Profiles In Courage

I've bolded these highlights and enlarged them so you can scan on down to the ones you're most interested in.  Or just quit right here.


Thursday I went two OLÉ classes:  The Innocence Project and the Pebble Mine class.
Friday was State and Federal Courts in the morning and Homelessness in the afternoon.

I'm also reading ahead for my December book club meeting - The Struggle for Modern Tibet, by Goldstein, Stebeschuh, and Tsering.  It's Tsering's story and the other two helped him getting written down in English.  He's a Tibetan, from a peasant family, who gets to Indian and works with the Dalai Lama's older brother and then manages to get a scholarship to the US.  He feels the Tibetans in India who follow the Dalai Lama are basically supporting the old Tibetan class system and he feels appreciation for the Chinese who are interrupting that and bringing roads and schools and hospitals to Tibet.  He wants to help with bringing Tibetan culture into the modern world (he was partly influenced by reading medieval Western history in the US and thinking they had the same kind of religiously dominated class system then too, but were able to modernize yet keep their distinct cultures.  Everyone thinks he's crazy to go back, but he does and gets sent by the Chinese to a    that is training Tibetans to be teachers and to go back to Tibet.  It's the beginning of the Cultural Revolution and gets to go on a field trip to march before Mao at Tiananmen Square.  That's as far as I've gotten.  I'm still waiting to see how it ends up.  (Well, I know he got back to the US somehow and with the two co-authors to write the book.)

Tibet was one of about three or four topics that my Chinese students were united and unbudging on:  China saved the Tibetans from a slave culture run by the Dalai Lama and the ruling class.  And Tshering gives support for this interpretation.  So I'm challenging my own Western take on Tibet by even reading this book.

So what else am I thinking?

The Innocence Project - Thursday was the last class.  The executive director and until recently the only employee, Bill Oberly, is the main speaker, sometimes backed up by Board president, Mark Johnson.  Thursday, Bill finished up the reasons people are wrongly convicted and then chronicled the Fairbanks Four trials, the one case the the Alaska Innocence Project has overturned and gotten the wrongly convicted freed.
As he told the saga, he illustrated the reasons for wrongful convictions he'd just finished.  The problems included:

• false confessions
• false eye-witness testimony, 
• misuse of forensic pattern identification (in this case using bootprints to 'prove' a suspect's boot was involved) (I did a blog post on this topic a week or so ago)
• false informant testimony
• police misconduct (intentional and unintentional)

In fact, all of the problems as Oberly tells it (and I don't doubt him, but he's my only source) seemed  to stem from police misconduct - from how they got the confessions, how they pressured a witness to tell their story even though it was different from the witnesses original and then later story, and the coached testimony of a prison inmate who said one of the Fairbanks Four had confessed to him in prison.

This issue is one that's been rummaging through my brain and has come up with the idea that police (and probably many other types of government, and for that matter private companies) need to have some form of Devil's Advocate involved in murder and other felony investigations.  The Devil's Advocate would be there to challenge the lead investigators when they seem to be caught up in confirmation bias (seeing the facts that confirm their suspicions, and not seeing ones that challenge their theory of the case).  The Devil's Advocate's job would be to put pressure on the investigators when their not following proper procedures for interrogating suspects (no lawyers, no parents even for minors, planting false scenarios (in this case on pretty intoxicated suspects who couldn't remember anything from the previous couple of hours), etc.

We have people who do this sort of work after the fact - Ombuds offices, Inspectors General, etc.  But if this work had been done on the front end, innocent people wouldn't end up spending five, ten, fifteen, and more years in prison.  And the actual murderers wouldn't still be loose killing other people.  And overzealous cops and prosecutors would be checked early, and perhaps disciplined or terminated before doing more damage.

Would this cost more?  Cost isn't supposed to be a factor in getting to justice.  But trying innocents suspects costs way more than the cost of a position of Devil's Advocate.  And if the victims are able to sue and win a wrongful conviction case, well, there's money that would have funded a dozen Devil's Advocates.

I've not given details of this case yet and won't today.  So it's hard for readers to feel the injustices done in this case.  But I've recommended several times already that readers here watch the Netflix short series When They See Us about the Central Park Five.  All the reasons for wrongful convictions are clearly illustrated in that case.  It's heartbreaking, but compelling viewing.  And all five have been exonerated and released.

Tied to all this is a notion of written about professionally on corruption.  There's a natural tension in all of us between following our human social value of loyalty and the value of following the rule of law.   We all have genetically built into us a loyalty to our 'group' whether that be family, team, school, profession, work group, whatever.  And that notion of loyalty is reinforced by our society and every other society.  Studies show that loyalty is a more important value for political conservatives in the US than for liberals.  We can see that playing out in Washington now as the Republicans are being held tightly in control by the president, despite their private misgivings.  It's the power that mafia bosses and platoon leaders and sports coaches have.   They are far less likely to vote, as the Democrats did with Senator Al Franken, to give up one of their own because of a violation of principles.

The idea of rule of law is, in part, to counter blind loyalty so that people are treated fairly and equally.  While loyalty can work in concert with the rule of law, it can also thwart the rule of law.  In police and military and corrections organizations unwritten "Codes of Silence" or "The Blue Wall" will keep police and corrections officers from reporting crimes within their ranks.

This loyalty vs rule of law tension also got me to thinking about one of my Senators - Dan Sullivan.  While he has said he did not vote for Trump, he's since been caught up in the loyalty to the Republican Bully in Chief (sorry conservatives, that characterization is pretty accurate - just look up any literature on bullying and the spell they hold on those around them).  He even signed Sen. Graham's letter condemning the House impeachment investigation.  (My other Republican Senator did not.)

So I've been wrestling with how to reach out to him - not to attack him, but to find ways to open his brain to alternative ways of seeing all this.  He's a Marine (still in the reserves) and their values are all for courage.  But they are also indoctrinated into a loyalty to the Marines that means not following orders to run into danger takes less courage than not.  So while he might have tremendous physical courage and be willing to risk his life on the battlefield, the moral courage to break with his loyalty to the president and the Republican Party is much more difficult.

So how can someone talk to him about that?  I've started looking at John Kennedy's book Profiles in Courage (it's available at the link online.)
 Kennedy wrote about six US Senators who stood out by overcoming all the pressures weighing dow US Senators.  Maybe that would help, but I doubt it.

I'm also pondering all the data we've gotten on homelessness.  The Municipality of Anchorage is participating in a data gathering and management plan based on a nation wide data system, Built For Zero. It tracks monthly:

• newly homeless (and where they come from in terms of previous housing)
• current homeless
• exiting homelessness

 The intent is to always have enough beds so that zero people spend the night homeless.  It involves collecting and sharing data on all the homeless, why they're homeless, what level of services they need, etc. so that they can find the right level of help for people in different categories of need.  And always making sure there are enough beds.   The plan they have addresses most of the questions the class raised the first week.   Here are some links - though they don't quite deal with some of the programs and data we've seen in class:

• MOA Housing and Homelessness Page - the basic Muni page on homelessness with links
• Data Dashboard - some numbers on the Anchorage homeless population

That's just a smattering of the activity going on in my skull.  When things get so busy, it's hard to sit and write something that doesn't meander a bit.

Why People Are Falsely Convicted

Here's some info from the Innocence Project class I'm taking through OLÉ.  I'd note that most of the information in this post comes from the class, though I've added some links for people who want to dig a little deeper.

The Innocence Projects seeks to help prisoners who have been wrongfully convicted to get released from prison.  To date, according to the class, 367 people in the United States have been exonerated by DNA testing and 162 actual assailants identified.  (That is the people who actually committed the crimes.)

6 Common Causes of Wrongful Conviction
1. Eyewitness misidentification 2. False confessions or admissions 3. Government misconduct 4. Inadequate defense 5. Informants (e.g., jailhouse snitches) 6. Unvalidated or improper forensic science

Today I'm going to just look at number 6.

6.  Unvalidated or improper forensic science

“When we looked at all the cases of people who have been exonerated by DNA evidence, we found that in 60 percent of those cases, experts who testified for the prosecution produced either invalid evidence or the misapplication of science in their testimony.” Peter Neufeld, Co-founder of the Innocence Project

• DNA is now 'the gold standard' for criminal cases.  However, there are cases of contamination of DNA - the DNA that is gathered at the scene, or contamination in the lab.  But modern technology is more likely to be able to detect contamination.  
• Odontology - This is used most effectively when there's a fire or accident, and the teeth are used to identify a body.  But there were experts who claimed to be able to match teeth based on bite marks and a number of people have been convicted based on testimony from 'experts.'  But it turns out this can be bogus.  There was no real science behind it and different experts could interpret it differently.  
• Pattern Evidence - Shoe Prints, Tire Tracks, and bullet striations - all these methods were also shown to be unreliable, that is, different experts could come up with different conclusions and there was no scientific standards for showing how close the match was.  You can read more about this and scientific advances here.
• Arson - Again, a few 'experts' gained credibility on being able to determine arson.  However, the case of Cameron Todd has debunked this method.  Todd, unfortunately had been put to death before the evidence in his trial was faulted.  
• Fingerprints - once the gold standard (before DNA) the infallibility of fingerprints was shattered in a case that came from a terrorist bombing in Madrid.  The Spanish police put fingerprints out worldwide and the FBI found an attorney in Oregon whose prints matched.  And he'd recently become a Muslim.  Three FBI fingerprint experts agreed and sent the data to Spain.  The Spaniards were dumbfounded.  How could this be?  There was no record the lawyer had ever even been to Spain.  Other fingerprint experts identified an Algerian terrorist whose prints matched better than the Oregon attorney.  Because of this case, they no longer say they're 100% sure.  Instead they say "it matches on these points."  Here's a link to the FBI's report on that case.
• Shaken Baby Syndrome - A pediatrician in 1971who had a number of infant deaths tried to figure out what had caused them and decided it might stem from shaking the baby.  He came up with three symptoms.  If the baby had those three symptoms, then the last person in contact with the baby was guilty.  The case of Audrey Edmunds was the case that eventually debunked that theory. She got out of prison, but there are still many other prisoners in prison because of the shaken baby theory.  

That should be enough for one bite.  I'll add more in future posts.  I'd also recommend watching "When They See Us" to those who have Netflix.  It's about the Central Park Five.  I didn't want to watch it at first, but it got good reviews, and so I checked the first episode and then finished them all.  Including the last one with Oprah Winfrey (who was the producer of the film) interviewing the  key actors AND the actual exonerated men who had been wrongly convicted.  That show illustrates most of the six common causes listed above.  It does a particularly good job on false confessions, which most people have trouble understanding.  

Kott Trial Day 14 - Jury Instructions

During lunch the clerk's office lobby is open, but the office is closed. So I could use the computers, but not print out anything. So I just snapped pictures of the computer screen. The quality could be better, but you can see all the jury instructions. Page 1 is the cover and by itself. The rest are listed below. pp.2-3 are together, pp. 3-4, etc. The instructions for the specific charges are on p. 17 (Extortion), p. 19 (Bribery), p. 20 (Wire Fraud). I've left the pictures fairly large so you can double click on the pictures to read them easier. Starting with pages 12=13 I started fixing the brightness and contrast so they are even easier, though I wouldn't want to read this every day.

Table of Contents
Jury Instruction No 1 Duty of Juries to Find Facts and Follow Law p. 2
Jury Instruction No 2 Charge Against Defendant Not Evidence - Presumption of Innocence - Burden of Proof ...p. 3
Jury Instruction No 3 Defendant's Decision to Testify ...p. 4
Jury Instruction No 4 Reasonable Doubt Defined ...p. 5
Jury Instruction No 5 What is Evidence...p. 6
Jury Instruction No 6 What is not Evidence...p. 7
Jury Instruction No 7 Direct and Circumstantial Evidence ...p. 8
Jury Instruction No 8 Credibility of Witness...p. 9
Jury Instruction No 9 Evidence and Other Acts of the Defendant or Acts and Statements of Others...p. 10
Jury Instruction No 10 Separate Consideration of Multiple Accounts - Single Defendant..p. 11
Jury Instruction No 11 Statements by Defendant ...p. 12
Jury Instruction No 12 Impeachment Evidence - Witness ...p. 13
Jury Instruction No 13 Impeachment Evidence - Witness...p. 14 [No 12 is for Allen, 13 for Smith]
Jury Instruction No 14 Conspiracy - Elements ...p. 15
Jury Instruction No 15 Hobbes Act - Extortion Under Color of Official Right.. p. 17
Jury Instruction N0 16 Bribery of a State Official Relating to a Program Receiving Federal Funds..p. 19
Jury Instruction No 17 Wire Fraud-Scheme to Defraud- Deprivation of Right to Honest Services...p .20
Jury Instruction No 18 Duty to Deliberate ...p. 21
Jury Instruction No 19 Consideration of Evidence ...p. 22
Jury Instruction No 20 Use of Notes ...p. 23
Jury Instruction No 21 Jury Consideration of Punishment p. 24
Jury Instruction No 22 Verdict Forms...p. 25
Jury Instruction No 23 Communication with Court...p. 26

Cover Page, p. 1

Jury Instruction No 1 Duty of Juries to Find Facts and Follow Law p. 2

Jury Instruction No 2 Charge Against Defendant Not Evidence - Presumption of Innocence - Burden of Proof ...p. 3

Jury Instruction No 3 Defendant's Decision to Testify ...p. 4
Jury Instruction No 4 Reasonable Doubt Defined ...p. 5

Jury Instruction No 5 What is Evidence...p. 6

Jury Instruction No 6 What is not Evidence...p. 7


Jury Instruction No 7 Direct and Circumstantial Evidence ...p. 8
Jury Instruction No 8 Credibility of Witness...p. 9


Jury Instruction No 9 Evidence and Other Acts of the Defendant or Acts and Statements of Others...p. 10
Jury Instruction No 10 Separate Consideration of Multiple Accounts - Single Defendant..p. 11


Jury Instruction No 11 Statements by Defendant ...p. 12
Jury Instruction No 12 Impeachment Evidence - Witness ...p. 13


Jury Instruction No 13 Impeachment Evidence - Witness...p. 14 [No 12 is for Allen, 13 for Smith]
Jury Instruction No 14 Conspiracy - Elements ...p. 15


Jury Instruction No 14 continued ...p. 16
Jury Instruction No 15 Hobbes Act - Extortion Under Color of Official Right.. p. 17


Jury Instruction 15 continued ...p. 18
Jury Instruction N0 16 Bribery of a State Official Relating to a Program Receiving Federal Funds..p. 19


Jury Instruction No 17 Wire Fraud-Scheme to Defraud- Deprivation of Right to Honest Services...p .20
Jury Instruction No 18 Duty to Deliberate ...p. 21


Jury Instruction No 19 Consideration of Evidence ...p. 22
Jury Instruction No 20 Use of Notes ...p. 23


Jury Instruction No 21 Jury Consideration of Punishment p. 24
Jury Instruction No 22 Verdict Forms...p. 25


Jury Instruction No 23 Communication with Court...p. 26

This LA Times Story Tells us Prisons Are A Criminal Justice Joke

[The point here is the excerpt below from an LA Times story.  But I ended up putting a lot of context before the excerpt.  You an skip down to the quote if you think you know all the introductory thoughts already.  And, of course, you don't need my permission to do that, or whatever you want.]

I've watched enough prison movies and read enough books and articles to know that the US prison system doesn't work very well*.  First of all we top the world in prisoners per 100,000 population:

The countries on this list are not among the most enlightened and prosperous.  But we're on top.  By a lot.  

Our justice system massively discriminates against people of color.

"Nationwide, Black people are locked up in state prison at a rate of 1,240 per 100,000 residents, as compared with 261 whites. That’s 4.8 times greater incarceration of Black than white people, based on 2019 data from the U.S. Bureau of Justice Statistics. On average, one of every 81 Black Americans is in a state prison.

In California, it’s worse. One of 62 Black Californians is in state prison."

The editorial goes on to counter the traditional response that it's because people of color commit more crimes, but rather it's discrimination throughout the justice system.

When people make lascivious remarks about what evil things might happen to a young defendant when he reaches prison, do you smile or do think that something is wrong with prisons? If you smile or if you're the one who makes the joke, you're part of the problem.  

What about people who are wrongly convicted?  The Innocence Projects around the US have gotten 399 prisoners exonerated.  Those are just the people who were able to get enough evidence to prove their innocence, even though it's guilt that is supposed to be proven in court. 

The 13th Amendment to the Constitution abolished slavery, EXCEPT for prisoners.

"Thirteenth Amendment

Section 1

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."

  Prisons and companies who get prisoners to work for them take advantage of this exception.  

So all that was preface to this excerpt from an  LA Times story that appeared last week about the Mexican Mafia (their term) that has operated in San Bernardino for decades (again, according to the story). 

This excerpt truly tells us of how truly corrupt and failing these prisons are.  (Yes, I know they depict this in tv shows and movies regularly, but still it's shocking.)

Moreno was Rodriguez’s “secretary” — a role once typically filled by women who were not in prison, who used visits and letters to pass messages from Mexican Mafia members to their underlings. But the proliferation of contraband cell phones in the state prison system has proved a “game changer,” testified Lt. Eddie Flores of the San Bernardino Police Department. Prisoners can now communicate directly with one another to arrange drug deals, order assaults and organize collection rackets, Flores testified.

Phones are smuggled in by correctional officers and “free staff” — plumbers, electricians, food preparers, Goo Goo testified. “I’ve seen nurses bring ‘em in, I’ve seen ‘em flown in on drones.”

A phone costs about $1,200 in prison, he said. “You kind of learn how these things work, the economics. If you’re bringing in too many cell phones, flooding the yard, the price drops.”

Goo Goo described his daily routine as Rodriguez’s man on the street: “I’d get up in the morning — it’s like going to work, having a job,” he told the jury. First he would call someone in the prison system, usually Moreno.

From his cell at the state prison in Calipatria, where he was serving 10 years for possessing an assault rifle, Moreno would tell Goo Goo what needed to be handled that day. “Patch this up here, that there,” he recalled. Deliver drugs. Pick up money.

That's from LA Times,  but if you can't get in, it's also on Wildlandfire News.

*Whether the prison system 'works well' or not, of course, depends on whose objectives you measure it by.  The official objectives to get dangerous criminals off the streets so they can't keep committing crimes, to mete out justices, to rehabilitate offenders, or the objectives of other players like the prisoners who are well connected, the owners of the private prisons, or the various people who work in the prison who can double and triple their salaries by smuggling in contraband.  

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.

"Like termites, they undermine the structure of any neighborhood in which they creep."

"If you turn on your television these days, you hear a lot of old white people talking about this 'real America,' some apple-pie, Bedford Falls [Jimmy Stewart's town in It's a Wonderful Life], Walt Disneyfied idea of a simpler country, a 'time of innocence' that we've lost.  They're right.  It's gone.  We destroyed it so we wouldn't have to share it with black people.  We gave up real neighborhoods in real cities so we could pay more to have 'protection' inside the regional profit silos of HomeServices of America.  We gutted Blue Hills, and now you have to go to Orlando to buy it back.  Only that's the big lie at the heart of the J.C. Nichols dream.  Desirable associations aren't something you can buy.  They're something you have to make." [p. 140]

Blue Hills had been one of those ideal middle class American neighborhoods, in Kansas City.  According to author Tanner Colby, Walt Disney grew up there.  It was, like other nearby communities the kind of place

"where families used to pass their evenings on the front porch and the neighbors would stop by to say hello." [p 75]

 But it was destroyed, according to Tanner, by housing developers, like J.C. Nichols.

"But Nichols's most important contribution to the way we live wasn't something he invented himself.  He just perfected it.  And the thing he perfected was the all-white neighborhood, hardwired with restrictive covenants that dictated not only the size and shape of the house but the color of the people who could live inside.  This idea, the racialization of space, would take root deep in the nation's consciousness, for both whites and blacks alike, becoming so entrenched that all the moral might of the civil right crusade was powerless to dislodge it.  In the South, Jim Crow was just the law.  In Kansas City, J.C. Nichols turned it into a product.  Then he packaged it, commodified it, and sold it.  Whiteness was no longer just an inflated social status.  Now it was worth cash money." [p.82]

Tanner, in his book, Some Of My Best Friends Are Black, traces how private housing forces, concerned about expanding black neighborhoods used practices, like blockbusting, to scare whites into selling their houses cheaply to developers, who then resold them to blacks.  They also sold houses to the fleeing whites in suburban housing developments that had covenants that included phrases like:

"None of said land may be conveyed to, used, owned, or occupied by negores as owners or tenants."[p. 91]

One J.C. Nichols innovation was to move this restriction from individual houses to whole developments.

". . .in 1909, J.C. Nichols broke ground on Sunset Hills and Country Side, the first of his developments laid out on land unencumbered by earlier deed restrictions.  Here, he attached the racial covenant, not to the deed for the lot, but to the plot for the entire subdivision.  Thus it became harder for one person to break."[p. 92]

Colby says Nichols was the celebrated leader in the development field, appointed to the National Capital Park and Planning Commission by President Calvin Coolidge and reappointed by Presidents Hoover, Franklin Roosevelt, and Truman.  Hoover, Colby reports, was a dinner guest at Nichols' home. 


Colby then discusses Nichols' friends, a group of prominent developers from around the country who were the 'brain trust' of National Association of Real Estate Boards (NAREB). 

"Not by coincidence in 1924 NAREB made racial discrimination official policy, updating its code of ethics to say, 'A Realtor should never be instrumental in introducing into a neighborhood members of any race or nationality . . . whose presence will clearly be detrimental to the property values of that neighborhood.  Like termites, they undermine the structure of any neighborhood in which they creep."

But government got drawn into the discrimination as well.  Colby tells us that Hoover created the Federal Home Loan Bank in 1932 to stimulate home building using government backed loans.  Roosevelt extended this program and then added the Home Owners' Loan Corporation (HOLC) and the Federal Housing Authority (FHA).

"J.C. Nichols was so intimately involved with the formation of the FHA that he was called to consult privately with FDR in the Oval Office.  When America's housing policy was drafted, whole chunks were lifted straight out of the Nichols Company handbook, practically word for word."

 He goes on to explain how using the Nichols Company handbook led to official government redlining:

"Through the HOLC (Home Owners' Loan Corporation) the federal government developed a four-tiered classification system for neighborhoods:

• high-end, all-white neighborhoods were given the highest rating;
• white working- and middle-class neighborhoods were given a secondary rating;
• Jewish and ethnically mixed areas were rated third; and the lowest possible rating was given to 
• black neighborhoods

 -regardless of the quality of the housing stock or the income of the inhabitants.  Then HOLC went through every block on every map of every city in America, giving each neighborhood a color-coded designation.  Black neighborhoods were coded red." [p.96]

This was supposedly a way to set up a metric for assigning the proper rate of interest.

". . . but black neighborhoods were not simply assigned higher interest rates. They were not assigned anything.  In a process that became known as redlining, the FHA cordoned off black neighborhoods and designated them wholly ineligible for federal subsidies and mortgages.  This was a policy based on nothing more than the say-so of the men who stood to profit from it." [p.97]

I'd read about the federal creation of redlining in Buzz Bissinger's  Pulitzer Prize winning A Prayer for the City.    So this wasn't new.  But Colby puts it into the context of Kansas City.

Perhaps the most insidious aspect was the perpetual discrimination clauses that are legally impossible to great rid of and continue to exist today. 

The early covenants expired in ten to twenty years, Colby writes.  In 1911, Nichols made them 25 years.   Then in 1913 he made them perpetual:

"He wrote all his property restrictions to be self-renewingevery twenty-five years unless a group of owners controlling the most street-facing footage opted to change those restrictions five years prior to the auto-renewal date.  It was the first use of self-perpetuating racial covenants anywhere in the country . . ."

Essentially, blacks couldn't get into these white suburbs (and the covenants were copied by most developers) and they couldn't get money to buy in black neighborhoods, which became more and more depressed.

If you live in a subdivision, you may actually find the clause.  While they may no longer be enforceable, getting them out of covenants may be difficult because of  Colby's work.  Here's a history of housing discrimination in Seattle.


I was a little skeptical of Colby's book when I picked it up at the library new book shelf.   But despite the lack of an index and a bibliography of the many works he says he consulted, Colby does a very good job of what he sets out to do:  find out why he doesn't have any black friends.  As a student of Birmingham, Alabama's premiere white school, Vestavia High when it had court ordered integration, Colby goes back to his old high school to peel back the layers to find out what had really been going on around him then, and reveal the underbelly of the 1960's civil rights movements, integration, and school busing.

He also has a section on Kansas City - where the quotes above are taken - and two more which I haven't read yet.  One on Madison Avenue and the other on churches.  These investigations were, he tells us in the preface, to understand why he didn't have any black friends.  His answer is that the US was structured in many ways to keep blacks and whites separate, even after Jim Crow laws ended.

Colby does something that is hard to do - he explains in very understandable terms, the power structures, private and public, that continue to enforce racial discrimination.  He finds some successes, but also serious problems, including the unanticipated consequences of forced school integration and housing policies intended to undo redlining.

When talking about race, there is always the problem of what 'racism' means.  Most people use it interchangeably with prejudice, but those who study the issue more closely, distinguish it as institutionally supported discrimination, rather than individual prejudice.

It's the institutionally supported discrimination - like redlining - that Colby does an excellent job of explaining.

But not only does a book like this explain what happened in the past (and have continuing effects), but it also should make people wonder what those people with access to power today are doing to make their lives more comfortable and profitable and at whose expense.  

The Case That HD 5 Was Gerrymandered - Part 1

I'm dividing this into sections so it's easier to find the parts you want or need to read.

Introduction
 
This is the first of two posts on HD 5 in Fairbanks.  The title reflects the implied case that the plaintiffs are making against the Board.  The Plaintiffs argue that HD 5 has compactness problems.  They also want a different pairing of House District 5 to make a better Senate seat - one that would make more likely the election of a second Democratic Senator in the Fairbanks area.  They don't use the word gerrymandering, but, as I mention below, the constitutional standards tend to stand as proxies for the harder to prove gerrymandering.

In Part 1 here, I want to give background.  In Part 2 we'll look at maps and details of HD 5 and the related Senate districts.  Other districts in Matsu and Kenai and rural Alaska are challenged by the plaintiffs, but just looking at this one in close detail will be more than enough to understand what's going on and what's at stake.  And, I hope, help people be able to react to the eventual court decision with facts as well as partisan fervor. 

Purpose of the Post

To make this accessible to people not following this day-to-day.
This isn't that hard to understand, it's just that there are so many details, that keeping it all straight is difficult.  Plus, a lot of stuff is subjective and requires someone who has enough grasp on the facts and the standards to come to an informed conclusion.  For example both sides will talk about compactness and then one side will say moving these people from this district to another will cause a ripple effect.  The other side says, no, they can be put into another district easily.  It takes someone who has watched the map making to have a better sense of which claim is more accurate.

As someone who has been to nearly every Board meeting held in Anchorage and at most of the others via the phone or online, I know that this is complex and that there is more to this than can be presented in the facts.  In this post I'm going to present what the parties have said and also give you my sense of which side is more persuasive.  But I have no special powers and other people who were there a lot might come to different conclusions.

Scope of this Post

I'm focusing on Fairbanks HD 5.  I think I understand this a little better than the other points being challenged - Matsu and Kenai and some rural districts.  Looking at HD 5 will inevitably get us into neighboring districts - mainly 3 and 4 - and into Senate Seats B and C.  I'm hoping, though, that if people get into the details of HD 5, they can get a grasp of the competing standards, and why this is all so difficult to prove one way or the other.  But at least, when the judge's opinion comes down, you'll be able to follow it.  

Background - How We Got Here

1. The Redistricting Board submitted its latest redistricting plan July 14, 2013
2. The Riley plaintiffs - George Riley from Ester and Ron Dearborn from Goldstream, two liberal leaning communities near Fairbanks - challenged the plan.  They also challenged the original plans as well, challenges that ended with the Alaska Supreme Court
1. invalidating the first plan
2. requiring some changes to accept the second plan as an interim plan that was used in the 2012 elections, because there wasn't enough time for a complete new plan, and
3. determining the interim plan was unconstitutional and that the Board needed to make another plan for the 2014 election
3. The Board objected to the plaintiffs challenges
4. More briefs were filed with more details of the complaints.
5. The Board filed briefs to dismiss the complaints
6. The Alaska Democratic Party filed complaints.
7. North Star Fairbanks Borough filed an amicus brief.
8. The judge - Michael McConahy - can make summary judgments on some or all of these motions.  That means he can just decide who is right or wrong and issue an order.  Or he can say he needs more information and allow the two sides to make further arguments in court. My guess is that he may make a few summary judgments and then identify the points he needs to hear more on in court.  That court date is set for Dec. 9 - 16 in Fairbanks. 

You can see all these briefs at the Board's website.  In this post my focus will be on House District 5 to give you a sense of what the court has to decide.  But looking at 5 will mean also looking at the districts around it.  But there's lots there.  Here are the ones I'd start with:

Corrected Copy of Riley Plaintiff's Memorandum in Support of Motion for Summary*
Doc 296 - ARB's Response Part 1
Doct 296  ARB's Response Part 2
Doc 296  ARB's Response Part 3

*I can't find this one on the Board's list.  It was sent to me and I think it's a consolidation of previous motions.  It's long, but there aren't that many words on each page. 

Background - Redistricting and Gerrymandering

 These two words go together.  Redistricting is about redrawing the lines of the political districts (in Alaska's case since we only have one member of the US House, redistricting is only about the state house and senate).  How one draws the lines can have enormous impact on which party gets more members elected.  Gerrymandering is the term used to describe shaping districts to favor one party over the other.

It takes Wikipedia's entry on Redistricting only 253 words to start talking about gerrymandering.  At All About Redistricting's page What Is Redistricting? gerrymander is the 207th word.   My point is that most people who know anything about redistricting expect the party in power to take advantage of their power.  The only real question is can they make their maps so that they favor their side BUT also stay legal?

Both parties will claim, publicly, their innocence and exclaim the other party's guilt.  "We have done nothing but correct the gross abuse of the other party in the last redistricting."

ProPublica's Redistricting, A Devil's Dictionary identifies several of the typical gerrymandering ploys:

• Cracking: This technique splits a community into multiple districts to ensure it doesn't have significant sway with a candidate. . .
• Packing: When faced with too many unfriendly voters, it can also be a winning strategy to limit the damage by drawing them all into one district. The benefit for you is there are fewer of the voters you don't want in all the surrounding districts. When race is involved, redistricting pros call it bleaching.  . . .
• Hijacking: If there's an incumbent you don't like, you can make their re-election difficult by putting them in a district with another incumbent to contend with. . .
• Kidnapping: Most politicians have geographic political bases; places they came up in politics where they have supporters, political allies, donors and name recognition. But what if their home address ends up in a different district than their base? That can make re-election tough. . .

The ProPublica link gives more explanations and examples with maps.


This is like poker.  People keep as straight a face as they can while they make all sorts of claims.


The current partisan redistricting facts in Alaska are these: 

1.  The Alaska Supreme Court declared the process the Board went through last time to be unconstitutional.  The Board will tell you, and not incorrectly, that the Court found the process, not the product, unconstitutional.  But since the process was unconstitutional, the Court didn't look at each district's constitutionality.

2.  The Board has four Republicans and one Democrat.  The Democrat, Marie Greene, is the CEO of NANA Corporation, an Alaska Native Regional Corporation.  The Board  claims that all their decisions were unanimous and since they had a Democrat, it shows there was no partisanship.  I agree that almost all the decisions have been unanimous.  But my sense was that Marie Greene's main concern was to make sure that Alaska Natives were treated fairly.  She did not raise issues about other Democratic party concerns. 

3. The state Senate,  before redistricting, had a 10-10 split between Democrats and Republicans, with a bi-partisan coalition running the Senate.  After the 2012 election, which used the interim redistricting plan, the Senate had a 13-7 Republican majority.  Two Democratic Senators were redistricted into the same district in Fairbanks. (Note the ploy of Hijacking above.) Alaska's only Black legislator was given a far more conservative district than before (Cracking), and a Republican and Democratic Senator were put in the same district in Southeast Alaska.  There had to be a pairing of two incumbent Senators in SE, because of population decline. It could have been two Democrats, two Republicans, or one of each. 

4.  While the Chair of the Board declared, at the first Board meeting, that he had no instructions from the Governor (who appointed him) and had not even met with the Governor, the Chair of the Republican Party, Randy Ruedrich, was an active observer throughout the whole process.  The Executor Director of the Board had recently worked for Ruedrich as the Republican Victory Director in 2010.  I like the (now former) Executive Director and he was always fair and open with me.  And there is nothing illegal about these arrangements, but the Republican Party was able to share its opinions about the districts more easily than was the Democratic Party.

5.  The Board member who did most of the mapping of Fairbanks, Jim Holm, is a former Fairbanks legislator who was defeated by current Democratic representative Scott Kawasaki.  His original maps of Fairbanks turned out to have what was called by the Democrats "the Kawaski finger."  The house of S. Kawasaki was 'kidnapped' into another district by a small protrusion.  It turns out that the house belonged to Sonia, Scott's sister, but you can't convince the Democrats that it wasn't an attempt to put Scott into a totally different district.  The Board's attorney recently pointed out to me that the Court found, in the previous trial, the arguments of gerrymandering unpersuasive.  And I agree that the evidence presented probably wasn't enough to prove anything.  But being the one who does the maps where you lost your last election smells a bit like conflict of interest to me.

As a blogger, I'm more than conscious that raising these points will likely cause Republicans to declare my obvious bias.  But these are things I observed or heard about and to not mention them would also be bias. If readers are going to get a sense of what was happening I need to include them.  These points, by themselves prove nothing, but they do give the context for judging the outcome.   I also heard Democrats who said they would take the same liberties if they had been in power. 

I should also note that the Board’s rules, drafted by the Board’s attorney, Michael White,  say that gerrymandering is illegal, White has also said on a number of occasions, that no redistricting plan in modern times has been overturned because of political gerrymandering.   

The point is, unless a Board member says explicitly that they have gerrymandered, it’s hard to tell what was going on inside their heads. 

That’s why the process of redistricting is so controversial.  The Courts now use the more objective criteria of compactness, contiguity, etc.  as a proxy for gerrymandering.  They don’t call it gerrymandering, but if a district looks strange enough, it can be ruled not compact and thus unconstitutional.  No need to use the G word. 

So, the assumption by many, if not most, is that the Republicans are going to do their best to take advantage of their  4-1 majority on the Board to nudge the districts here and there to favor Republican candidates. 

And the Board members are going to deny this, because if they acknowledge gerrymandering, they would then have their plan thrown out.  So even if a Board were completely unbiased, there would be suspicion of gerrymandering.


And In The Board's Defense

I would also note that the Board meetings were all very accessible for anyone, like me, who had the time and was in Anchorage.  And most meetings, after the first few months, were accessible online or by phone. Most of the Board members and all of the staff were always willing to answer questions in detail during breaks and after meetings.   The Board had a difficult task before them balancing different criteria to map a huge state with a sparse population.    Strangely large districts are inevitable.  Compared to what's happened in some states, this Board has been transparent and did not get greedy.  I think some of the new districts also reflect the split within the Republican Party between the traditional leadership and the new Tea Party activists.  The court's decision is not going to be a slam dunk by any stretch of the imagination.  

The question the Court will have to address is whether the issues that the plaintiffs raise are violations of the Alaska constitution, or whether the anomalies they allege are simply the by-products of balancing many factors to map a huge state with a sparse and scattered population. 

Part 2 will look at the maps and the details of HD 5 and neighboring house and Senate districts to help folks understand what is happening and why.  

[UPDATE Nov. 15, 2013:  Part 2 is now up here.]


 

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….