A former Alaska judge’s misconduct triggers a new trial in a criminal case

A federal judge has ordered a new trial in one of Joshua Kindred’s earlier cases because of possible conflicts of interest between the disgraced former Alaska federal judge and a top prosecutor implicated in the case who sent him nude photos.

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

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

According to a public filing, Hernandez granted the new trial motion on Sept. 27, but the opinion is under seal.

The statement is the latest in the ongoing fallout from the resignation of Kindred, a Trump appointee who was found by a judicial panel to have sexually harassed his employee, 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 relationship.”

The Judicial Conference, the judiciary’s policy-making body, called on the House of Representatives earlier this month to impeach Kindred over his conduct, citing his “reprehensible behavior.” It is unclear whether lawmakers will take up the issue.

The revelations have also prompted the Defense Bar Association to examine Kindred’s previous cases for possible conflicts of interest and prompted the Justice Department to launch an internal investigation. The U.S. Attorney’s Office in Alaska, which has come under increased scrutiny over the scandal, has also identified more than 40 cases where conflicts may have occurred.

Howell filed a motion for a new trial or dismissal in July on behalf of her client, Rolando Hernandez-Zamora. She argued in court filings that the unnamed lead U.S. attorney, who did not officially appear in the case, was in the courtroom throughout the trial and was “observed” talking “at length and at length” to the two about the case “The prosecutors we commissioned spoke about apparent detail.”

The U.S. Attorney’s Office in Alaska countered in a court filing earlier this month that Kindred did not have to recuse itself because the conflicted prosecutor was not officially representing the government but was instead “merely providing advice” to the two prosecutors assigned to the trial observed.”

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

According to Howell, Hernandez said in his opinion he did not need to address the question of whether there was actual misconduct and whether Kindred should have recused himself from the case. The mere appearance of misconduct and injustice created by the controversial prosecutor’s presence was enough to warrant reconsideration.

“I think the opinion is correct, but I also felt that he was very careful not to denigrate anyone or accept any particular argument,” Howell said. “What he really emphasized was the presence of the senior AUSA in the courtroom, combined with the allegations Rolando was facing.”

United States v. Hernandez-Zamora, Alaska Dist. Ct., No. 3:21-cr-00062, 09/27/24