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In a case where former judge Joshua Kindred didn’t recuse himself—despite having been provided nude photos by a prosecutor in the case—Alaska federal prosecutors moved to throw out a criminal conviction.
Before the disgraced former judge accepted the defendant’s guilty plea for assault more than two years ago, Kindred’s relationship with the prosecutor, Karen Vandergaw of the Alaska US attorney’s office, “had become personal,” according to a Justice Department filing on Tuesday.
The Justice Department further informed the court that it learned “from a hearsay source” that Kindred and Vandergaw discussed the case ex parte, during which Kindred reportedly said the two “worked it out.”
But according to the Justice Department’s brief, neither Kindred nor Vandergaw told the defendant about their relationship or the improper conversation.
The government’s request is the most recent repercussion of Kindred’s July resignation and misconduct while serving on the bench.
According to an appeals court council, the Trump-appointed judge had inappropriate connections with female attorneys who appeared before him, including obtaining nude images from an unidentified senior prosecutor, and sexually harassed his former clerk. He also established a hostile work environment.
This filing on Tuesday is the first time the Justice Department has made Vandergaw’s publicly disclosed this prosecutor.
In another case over Kindred’s misbehavior, misconduct last month at the defense’s request, and defense lawyers have seized of those conflicts of interest to demand relief for their clients. DOJ had never before requested that a court to nix a criminal conviction due to Kindred’s behavior.
According to the Justice Department petition, Kindred and Vandergaw’s personal relationship “would reasonably cause an objective observer to question his impartiality in this case,” and the former judge’s omission to recuse was “erroneous,”
According to the government, Vandergaw was counsel of record and “personally represented the government during critical events over which Kindred had discretionary decision-making authority,” such as the guilty plea and sentencing.
Additionally, the Justice Department pointed out that Johnny-Lee Preston Burk, the defendant, represented himself. He entered a guilty plea to one count of assaulting a person assisting an officer.
In 2019, Vandergaw and another prosecutor in the office, James Klugman, filed the initial indictment against Burk. Klugman withdrew earlier this month, and she was removed from the case in July, a few weeks after Kindred resigned. Veteran fixer, who was just assigned to the Alaska US attorney’s office, signed the motion to vacate by Steven Clymer.
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Chief Judge Sharon Gleason has already been given the case.
A representative for the US attorney’s office in Alaska declined to comment beyond the information in the filing.
Less than two months after Burk filed a pro se motion requesting more discovery into Kindred’s relationship with Vandergaw, the government has requested to toss the case. Any ex parte communication on his case between Kindred had with Vandergaw or any other US attorney’s office, included in his request.
In a second filing on Tuesday, the Justice Department informed the federal court in Alaska that, in light of the government’s request to vacate his conviction, this request is now moot.
The government’s decision to disclose the conflicts in a public filing was applauded by Jamie McGrady, Alaska’s chief federal defender.
In an email, she stated, “We are happy 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, since the government has exclusive control over the potential conflict information.”
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