Prosecutors Eye Conflicts in 23 Cases in Alaska Judge Fallout

Federal prosecutors in Alaska have identified nearly two dozen criminal cases with potentially undisclosed conflicts of interest involving US District Judge Joshua Kindred, who resigned last week amid allegations of sexual misconduct, and attorneys who worked on cases before him.

Three of those lawyers were at the US Attorney’s office, according to an email sent to the federal defender July 12 by criminal division chief Bryan Wilson and viewed by Bloomberg Law. Though the email does not name the three attorneys, one attorney involved in at least 13 of the 23 cases identified by the office is a senior prosecutor who the judicial investigation found sent Kindred nude photos.

The office first became aware of some potential conflicts in the fall of 2022, when the judiciary began investigating misconduct claims about Kindred, and “took proactive steps” to mitigate those issues, Wilson’s email said. That included a request that the judge not preside over cases involving those lawyers.

The inquiry could lead to the re-opening of multiple criminal cases that came before Kindred during his more than four years on the bench. And it represents the ongoing fallout from a scandal that has reverberated throughout Alaska’s tight-knit legal community and invited new scrutiny into the judicial nomination process.

The judiciary investigation found that Kindred had an inappropriate relationship with a female clerk, who later worked for the US attorney’s office in Alaska. The panel also found the judge created a hostile work environment, including by discussing his romantic life in the workplace, and lied about his conduct to judiciary officials conducting the inquiry. He hasn’t commented publicly.

“The office has obligations with respect to disclosing or avoiding potential conflicts of interest, and we are undertaking a review to ensure those obligations are met,” Reagan Zimmerman, a spokesperson for the US attorney’s office, said in a statement. She added that the office “will supplement disclosures as necessary.”

Federal defender Jamie McGrady, whose office is undertaking its own review, indicated in a short message to other criminal defense lawyers when she forwarded them Wilson’s email, that she believes the number of potentially conflicted cases is higher than the 23 identified by prosecutors.

In a separate statement to Bloomberg Law, McGrady noted that during the judiciary investigation into Kindred, the US attorney’s office was aware of a conflict of interest, and yet a prosecutor involved entered appearances in Kindred’s cases, prompting him to recuse.

“We don’t know the motivation behind that, or whether it was strategic, but we intend to find out,” McGrady said in the email to Bloomberg Law. Kindred had a reputation within the defense bar as a judge who wasn’t tilted toward the prosecution.

Neither McGrady nor Wilson named the attorneys with potential conflicts with Kindred.

In at least 13 cases identified by Bloomberg Law since 2022 involving prosecutor Karen Vandergaw, Kindred either recused himself or the cases were reassigned shortly after she entered her appearance in the case. Bloomberg Law previously reported that Vandergaw was the unnamed lawyer who judicial investigators determined had sent nude photographs to Kindred. Vandergaw didn’t return requests for comment.

According to the email sent to McGrady, Wilson said his office’s review is “based on “our educated guesses regarding some of the people involved and therefore cases implicated.” He also said in the email that the law clerk with whom Kindred was sexually inappropriate had no cases before the judge when she was with the US attorney’s office.

Wilson said that the office also asked that Kindred not be assigned cases involving the three assistant US attorneys and one defense attorney, which the court did starting in November 2022 through Kindred’s resignation last week.

One of the other attorneys with a potential conflict is a defense attorney, according to Wilson’s email. The Ninth Circuit judicial council’s order against Kindred says he “received sexually suggestive text messages from a local attorney who regularly appeared before him,” but didn’t name the lawyer.

‘Low standard’

Criminal defense lawyers outside of Alaska said that Kindred’s conduct with Vandergaw may be grounds to reopen any cases out of the US attorney’s office that reached his courtroom.

Judges are directed to recuse themselves from cases in any matter where his or her impartiality “might reasonably be questioned.” Abbe Smith, director of Georgetown Law’s criminal defense and prisoner advocacy clinic, called this a “very low standard.”

“As a defense attorney, you’re going to look any which way to show that your client was treated unfairly,” said Julie Rendelman, a New York-based criminal defense attorney and former prosecutor. “I can’t tell you that any are going to be successful, but it’s opened up a Pandora’s box of litigation.”

Though Kindred has generally recused from cases involving Vandergaw since November 2022, Alaska defenders would be expected to examine if there were any earlier cases where he didn’t recuse but should have, attorneys said.

Cases where Vandergaw may not have made an appearance in the case, but could have had influence behind the scenes in the relatively smaller office, could also be targeted. Vandergaw was promoted in September 2023, while the investigation was ongoing, to senior litigation counsel. She was effectively demoted after the findings against Kindred were released.

Defense attorneys could even try to revive cases before other judges if Vandergaw was the prosecutor, by arguing her judgment is compromised, Rendelman said. Smith said if she had a client tried and convicted before Kindred, regardless of the prosecutor involved, she would attempt to challenge it on the basis of the judge being unfit.

“Without a neutral decision maker, all bets are off,” Smith said.

Vida Johnson, co-director of Georgetown Law’s criminal justice clinic and a former D.C. public defender, said defenders should be asking the US attorney’s office for a list of every case Vandergaw had any involvement in, whether it be a primary or secondary role, and any case she supervised during Kindred’s tenure on the bench.

“We have always assumed that judges are always doing the right thing, and I think we have to be more careful about those assumptions, especially when you’re talking about federal judges who have lifetime tenure,” Johnson said.

Still, Bruce Green, director of the Stein Center for Law and Ethics at the Fordham University School of Law, said though defenders could present those arguments, it’s unlikely the appeals court would vacate every conviction over which Kindred presided.