Alaska Judge’s Links to Lawyer Didn’t Require Recusal, US Says

Joshua Kindred didn’t need to recuse himself from a case in which an Alaska prosecutor who sent him nude photos had “minor involvement,” the US attorney’s office argued Tuesday in the latest fallout from the former judge’s misconduct and resignation.

The senior assistant US attorney—who was found by a judicial committee to have sent Kindred nude photos as part of “flirtatious rapport”—didn’t formally enter an appearance in the case nor officially represent the government, the government said in a response brief.

Rather, she “only provided advice” to the two prosecutors assigned to the trial “and watched court proceedings, sitting in the gallery, not at counsel table.” This doesn’t require his recusal under judicial ethics codes, the office said.

In the same vein, as there was no recusal obligation, the US attorney’s office also wasn’t obligated to notify defense counsel about the interactions between the two. And even if Kindred should have recused, it would have been a “harmless error,” the government said.

“That said, it would have been prudent, indeed expected, for the senior AUSA to refrain from involvement in any case assigned to Judge Kindred, including this one, once their relationship became more than professional,” the brief said. “But, for reasons explained above, because there was no recusal obligation due to the senior AUSA’s limited involvement in the case, a failure to notify could not have been prosecutorial misconduct.”

The government’s response brief didn’t name the prosecutor, but Bloomberg Law has identified her as Karen Vandergaw, who was recently demoted.

Tuesday’s court filing fights an effort by an Alaska defense lawyer to request a new trial for her client, Rolando Hernandez-Zamora, who was convicted of cyberstalking after a jury trial in Kindred’s courtroom in June.

The request was the first following Kindred’s July resignation, after a judiciary panel found that Kindred sexually harassed his former clerk, created a hostile work environment for employees, and lied about his conduct to investigators. In addition to the nude photos from the US attorney’s office, Kindred also “exchanged flirtatious text messages” with another local attorney, both of whom often appeared before him, the panel found.

The findings have spurred defense lawyers to prepare requests to unwind a range of cases due to Kindred’s potential conflicts of interest.

Last month, the Justice Department instituted a litigation hold requiring employees of the Alaska US attorney’s office to retain records and communications related to Kindred’s potential conflicts with prosecutors involving 38 cases, according to internal documents obtained by Bloomberg Law.

The department implemented the preservation process after receiving “numerous requests” to do so, one of the documents said.

Employees of the US attorney’s office were asked to retain materials from November 2021 to present. That included all communications about the conflict of interest to or from three assistant US attorneys from whom Kindred began recusing in late 2022.

Redo request

Hernandez-Zamora argued shortly after Kindred’s resignation that he deserved a new trial over the judge’s misconduct.

His lawyer, Alexis Howell, claimed that the presence of the senior prosecutor who sent the judge nude photos during court proceedings affected the outcome in the case and represented a conflict of interest, and that the US attorney’s office should have disclosed it.

She also said that Kindred’s behavior toward a former clerk “meets the legal definition of cyberstalking,” and asked for the dismissal of the indictment or a new trial, and additional discovery into the issue.

The government’s Tuesday response also opposed the discovery request, calling it a “fishing expedition.”

The case was was reassigned to Judge Marco A. Hernandez, visiting from the Oregon federal trial court.

Hernandez-Zamora’s case is one of dozens getting a closer look after Kindred’s resignation. The Alaska US attorney’s office has identified more than 40 cases where there may have been potential conflicts of interest.

Among the government lawyers signed onto the response brief in the cyberstalking was Steven Clymer, a veteran Justice Department lawyer who was recently deployed to support the Alaska US attorney’s office review of cases.

The case is USA v. Hernandez-Zamora, case no 3:21-cr-00062.