Editor's note: A version of the following commentary was first featured in Make-A-Scene, a monthly community publication serving readers in the Matanuska-Susitna Valley. It is the eleventh installment in a series through which Mr. Kohring intends to tell his own side of the federal probe of public corruption in Alaska.
"Injustice anywhere is a threat to justice everywhere." -- Martin Luther King, Jr.
For remaining naysayers unwilling to accept my words that I was run over roughshod by the government and for those who have difficulty recognizing that corruption exists in our so-called "Justice" Department in Washington, D.C., I ask that you consider the opinions of legal professionals who've carefully reviewed my case. One such individual is attorney Solomon L. Wisenberg of Barnes and Thornburg LLP, partner and co-chair of the white collar defense practice Group of Washington, D.C.
Mr. Wisenberg doesn't know me from Adam, so his opinion isn't biased or influenced in any way. More important, he recognizes how the Feds maligned me over with their "systematic" concealment of evidence that prevented me from winning my trial. Wisenberg's conclusions were also in alignment with the U.S. Ninth Circuit Court of Appeals who threw out my convictions last year because of deplorable conduct by federal prosecutors.
Attorney Wisenberg wrote a review entitled "The Vic Kohring Catastrophe," following the disclosure that government lawyers concealed evidence crucial to my case with deliberate intent. He points out how a complete exoneration at the appellate level was razor close, hinging on the vote of one appeal court judge who held the key to totally clearing my name. If his one vote had been a yes to dismiss my case "with prejudice," joining his colleagues on the panel, the government would have been barred from retrying me and thereby placing my legal issues behind me forever.
Instead, I missed this best-case scenario by a single vote. So very close, but still a major victory. Despite not achieving everything I hoped for, I will always be grateful to the Ninth Circuit for at least throwing out the convictions, something U.S. District Court Judge Sedwick in Alaska refused despite overwhelming evidence that the government's bungling of my case was extraordinarily unprofessional, if not criminal. So a dispensing of the convictions was in itself a huge victory. Very few defendants get this far in the judicial process and are lucky to have an appellate court agree to hear a case, let alone act to throw out convictions. In fact, statistics reveal that up to 98 percent of appeals before the Ninth Circuit Court are rejected, so the odds were greatly stacked against me regardless of the strength of my case. I was very fortunate.
In addition to the court's favorable ruling (based primarily on the prosecution concealing material concerning central witness and Veco CEO Bill Allen's alleged child rape), Mr. Wisenberg further validates my arguments by going beyond the court's findings. He correctly points out how Allen committed perjury on the witness stand and engaged in obstruction of justice. This is precisely why I filed a defamation lawsuit against him, to hold the man accountable for his false statements which contributed to my erroneous convictions. The case is pending.
Wisenberg wrote how it was "jaw-droppingly incredible" that vital information concerning Allen's investigation by the Anchorage Police Department into sexual exploitation of minors was secretly cached away and hidden from me by the government. He found it even more incredible that, even after it reluctantly dismissed U.S. Sen. Ted Stevens' convictions (the Justice Department was opposed to this action as their goal was to convict Stevens, but were pressured by the judge to acquiesce and vacate the indictment), the government continued playing games by failing to disclose significant evidence until my lawyer demanded it be turned over.
A defendant should not have to ask for something they're entitled under the Constitution, nor should his or her attorney have to go to court to force the government to divulge evidence they are required by law to provide. Wisenberg notes how the Ninth Circuit Court patiently explained in their ruling that this hidden material was highly relevant, "impeaching" evidence (meaning it would have seriously tarnished Allen's credibility as a witness and cast serious doubt that he bribed me) and that my lawyer should have been allowed to question Allen as a witness on the matter. The prosecutors conduct couldn't have been more shady.
If Allen had lied if asked questions on the stand concerning the child sex crime allegations, the government would have been legally bound to correct his false testimony, according to Wisenberg. But considering their dismal track record of adhering to the law, that was highly unlikely. The probability of Allen lying concerning such crimes would have been strong as he lied repeatedly on the stand involving facts crucial to my case, the most serious being his claims that he bribed me yet admitting the opposite in private interviews with the FBI.
Wisenberg asks, "What could (the prosecutors) have possibly been thinking when he/she/they failed to disclose this information?" He says that even if it hurts, evidence of this nature must be turned over as required by law.
I know the answer. It's because the prosecutors were so determined to achieve a conviction at nearly any cost that they were willing to cheat by hiding evidence and collaborating with Allen, their "star" witness, even if it meant violating my constitutional right to due process. They were obstructing justice, itself a criminal act.
Mr. Wisenberg further explained that no prosecutor has any business withholding key evidence such as FBI "302's," which are summaries of private interviews with witnesses including Allen. Contained in these summaries were Allen's admissions (secretly recorded by the government and not divulged to me) that he did not bribe me and had no expectation of receiving anything in return for his small gifts. In other words, no quid pro quo as the prosecutors argued.
Wisenberg noted that many of the concealed materials were indeed 302's containing crucial notes from interviews with key witnesses, and that "almost all offices in almost all judicial districts" in the country automatically turn over these statements to a defendant before trial. He asks, "Why wasn't it done here in a high-profile public corruption case (such as Kohring's)?"
He's absolutely right that the evidence should have been disclosed to me without hesitation. No games. These same prosecutors, the exact same group of individuals who also prosecuted Ted Stevens with a vengeance, tried to bluff their way to victory in court. Consequently, they became the target of a criminal investigation. It's interesting how Karma works.
Wisenberg additionally pointed out that the government concealed many handwritten interview notes containing what's known as "exculpatory" information, meaning evidence that favored me, the defendant, which could have cleared my name if the prosecutors had not kept the material tucked away in files and boxes. A concealed FBI 302 by itself is not necessarily enough to exonerate a person, but if it contains exculpatory evidence such as Allen's admissions that he did not bribe me, then you bet it is.
Wisenberg referred to the prosecutors' conduct as a "widespread problem," since their acts were so frequent and blatant. For example, one such item the prosecutors "conveniently" failed to turn over was a note from a private interview of Allen before my trial which reads (verbatim), "Allen said he never asked Vic to do anything in exchange for cash or some benefit." Pretty important in a Hobbs Act bribery case, no?, he asks almost sarcastically. And Wisenberg explains that the jury might very well have relied on this evidence to reach its verdicts, so it cannot be considered "harmless" as the prosecutors (who were backed up by pro-government Judge Sedwick) claimed in ludicrous fashion.
Finally, Mr. Wisenberg asks, "Why wasn't all of this evidence immediately revealed to Vic Kohring's defense team when the Department of Justice moved to dismiss the Stevens indictment?" Why the long delay? There was such a lack of integrity on their part and desire to follow the law even after being seriously admonished by Emmit Sullivan, Stevens judge. Moreover, who knew about and failed to authorize disclosure to Kohring of this patently exculpatory material? This person should be identified and criminally prosecuted, otherwise justice will never be fully achieved. But will the Justice Department, the proverbial "fox guarding the hen house," indict and hold one of their own to task? I seriously doubt it.
Wisenberg emphasized that the indictment was not dismissed with prejudice as explained, which proved very eventful. That's because it would have saved me a lot of grief, fully cleared my name and allowed me to get on with my life after several ugly years of harassment by prosecutors and the FBI. Instead, I was forced to continue my fight and ultimately pressured into an unfortunate and regrettable plea deal. It's now something I must keep battling for the rest of my life, defending myself to the public and explaining how I was shafted by our government. It was truly a raw deal.
Thank you, Mr. Wisenberg, for your analysis and for concurring that the government's heavy-handed attorneys went overboard in their zealous attempt to convict and imprison me. Thanks too for putting certain closed-minded media in their place. Hopefully those few who still won't accept my explanation that I was denied my constitutional right to a fair trial, will at least acknowledge the words of a distinguished member of the legal profession.
Vic Kohring represented Wasilla, Chugiak and the Matanuska-Susitna Valley in the Alaska House of Representatives. He was first elected in 1994 and resigned in 2007. He can be reached on Facebook. His blog is available at www.simplesite.com/vickohring.
The views expressed here are the writer's own and are not necessarily endorsed by Alaska Dispatch. Alaska Dispatch welcomes a broad range of viewpoints. To submit a piece for consideration, e-mail commentary(at)alaskadispatch.com.