Ex-Alaska Judge’s Lawyer Ties Have US Asking to Toss Conviction

Alaska federal prosecutors moved to throw out a criminal conviction in a case where ex-judge Joshua Kindred didn’t recuse himself—despite having received nude photographs from a prosecutor in the case.

Kindred’s relationship with the prosecutor, Karen Vandergaw of the Alaska US attorney’s office, “had become personal” before the disgraced former judge accepted the defendant’s guilty plea for assault over two years ago, the Justice Department said in a Tuesday filing.

The Justice Department also told the court it learned “from a hearsay source” that Kindred and Vandergaw had an ex parte conversation about the case, during which Kindred reportedly said the two “worked it out.”

However, neither Kindred nor Vandergaw disclosed their relationship or the improper conversation to the defendant, the Justice Department said in the filing.

The government’s request is the latest fallout from Kindred’s misconduct while on the bench and resignation in July.

An appeals court council found the Trump-appointed judge sexually harassed his former clerk, created a hostile work environment, and had inappropriate relationships with female lawyers who appeared before him, including by receiving nude photos from an unnamed senior prosecutor.

Tuesday’s filing marks the first time the Justice Department has publicly disclosed this prosecutor is Vandergaw, which Bloomberg Law has previously reported.

Defense lawyers have seized on those conflicts of interest to ask for relief for their clients, and a federal judge ordered a new trial in another case over Kindred’s misconduct last month at the defense’s request. However, the DOJ hadn’t previously asked a court to nix a criminal conviction due to Kindred’s behavior.

The personal relationship between Kindred and Vandergaw “would reasonably cause an objective observer to question his impartiality in this case,” and the former judge’s failure to recuse was “erroneous,” the Justice Department filing said.

Vandergaw was counsel of record and “personally represented the government during critical events over which Kindred had discretionary decision-making authority,” including the guilty plea and sentencing, the government said.

The Justice Department also noted that the defendant, Johnny-Lee Preston Burk, represented himself. He pleaded guilty to one count of assaulting a person assisting an officer.

Vandergaw filed the initial indictment against Burk in 2019, alongside James Klugman, another prosecutor at the office. She was withdrawn from the case in July, several weeks after Kindred’s resignation, and Klugman withdrew earlier this month. The motion to vacate was signed by Steven Clymer, a veteran fixer recently deployed to the Alaska US attorney’s office.

The case has since been assigned to Chief Judge Sharon Gleason.

A spokesperson for the Alaska US attorney’s office declined to comment beyond the information in the filing.

The government’s request to toss the case comes less than two months after Burk filed a pro se motion requesting more discovery into Kindred’s relationship with Vandergaw. His request included any ex parte communications between Kindred and Vandergaw, or any other member of the US attorney’s office, about his case.

The Justice Department told the Alaska federal court in a second filing Tuesday this request is now moot, given the government’s request to vacate his conviction.

Jamie McGrady, the chief federal defender for Alaska, praised the government’s decision to disclose the conflicts in a public filing.

“Since the government has exclusive control over the potential conflict information, we are glad to see this motion regarding both government and judicial misconduct filed on the public docket, and look forward to more timely disclosures in order to litigate these issues,” she said in an email.

USA v. Burk, D. Alaska, No. 3:19-cr-00117, 10/22/24