Ex-Alaska Judge’s Misconduct Triggers New Trial in Criminal Case

A federal judge has ordered a new trial in one of Joshua Kindred’s past cases over potential conflicts of interest between the disgraced former Alaska federal judge and a senior prosecutor involved in the case who sent him nude photos.

In a sealed opinion, Judge Marco A. Hernandez, a senior judge visiting the Alaska federal trial court from Oregon, agreed to grant a new trial to an Alaska man convicted of cyberstalking in Kindred’s courtroom, on judicial misconduct grounds, according to his attorney Alexis Howell.

The misconduct stemmed from the involvement of a senior prosecutor who judicial investigators found had sent nude photos to Kindred, Howell said.

Hernandez granted the new trial request on Sept. 27, according to a public docket entry, but the opinion is filed under seal.

The opinion is the latest in the ongoing fallout from the resignation of Kindred, a Trump appointee who was found by a judicial council to have sexually harassed his clerk, created a hostile work environment for other employees, and lied to judicial investigators about it. The council also found in its July report that Kindred had inappropriate relationships with female lawyers who appeared before him, including a senior prosecutor who sent him nude photos as part of a “flirtatious rapport.”

The Judicial Conference, the judiciary’s policymaking body, asked the House of Representatives earlier this month to consider impeaching Kindred over his conduct, citing his “reprehensible conduct.” It’s unclear if lawmakers will take up the issue.

The revelations have also prompted the criminal defense bar to examine Kindred’s past cases for potential conflicts of interest, and the Justice Department to initiate an internal investigation. The Alaska US attorney’s office, which has come under increased scrutiny over the scandal, has also identified more than 40 cases where there may have been conflicts.

Howell filed a motion for a new trial, or dismissal, in July on behalf of her client, Rolando Hernandez-Zamora. She argued in the court filing that the unnamed senior assistant US attorney who didn’t officially appear in the case, was in the courtroom for the entire trial and was “observed speaking” to the two prosecutors assigned to the case “at length and in seeming detail.”

The Alaska US attorney’s office countered in a court filing earlier this month that Kindred didn’t need to recuse because the conflicted prosecutor didn’t officially represent the government, but instead “only provided advice” to the two prosecutors assigned to the trial “and watched court proceedings.”

Bloomberg Law has identified that prosecutor as Karen Vandergaw, who has since been demoted.

According to Howell, Hernandez said in his opinion he didn’t need to reach the issue of whether or not there was actual misconduct and whether Kindred should have recused from the case. The mere appearance of misconduct and unfairness created by the presence of the conflicted prosecutor was enough to merit reconsideration.

“The opinion is right, in my opinion, but I also felt like he was pretty careful to not dime any one person out, or accept any particular argument,” Howell said. “What he really harped on was the presence of the senior AUSA in the courtroom, combined with the allegations that Rolando was facing.”

USA v. Hernandez-Zamora, Alaska Dist. Ct., No. 3:21-cr-00062, 9/27/24