On Wednesday, October 23, 2024, Bloomberg Law reported that federal prosecutors in Alaska are seeking to overturn a criminal conviction involving former judge Joshua Kindred. This request follows revelations that Kindred failed to recuse himself from a case despite having received inappropriate communications from a prosecutor involved.
The Justice Department’s motion to vacate arises from the case against Johnny-Lee Preston Burk, who pleaded guilty to assaulting a person assisting an officer. The department’s filing indicated that Kindred had a personal relationship with prosecutor Karen Vandergaw, which developed before Burk’s guilty plea over two years ago. It was noted that the relationship included the receipt of nude photographs from Vandergaw to Kindred.
In its legal filing, the Justice Department disclosed that Kindred and Vandergaw engaged in an ex parte discussion regarding the case, where Kindred allegedly stated that they had “worked it out.” This conversation, along with their undisclosed relationship, raised significant concerns regarding Kindred’s impartiality during the proceedings.
The request to vacate the conviction marks a significant development in the aftermath of Kindred’s prior misconduct. In July, he resigned from his judicial position following findings from an appeals court council that he had sexually harassed a former clerk and fostered a hostile work environment. The same investigation revealed Kindred’s inappropriate conduct toward female attorneys appearing before him, which included receiving explicit photos.
The government’s filing publicly identifies Vandergaw as the prosecutor involved, a detail previously reported by Bloomberg Law but not officially confirmed until now. The Justice Department argued that the personal connection between Kindred and Vandergaw would lead any reasonable observer to question Kindred’s ability to remain impartial in Burk’s case. Furthermore, the department criticized Kindred’s failure to recuse himself, labeling it as an “erroneous” decision.
Vandergaw had been the counsel of record in Burk’s case and had significant influence during key moments, including the initial guilty plea and sentencing. The situation has prompted defense attorneys to leverage these conflicts of interest in pursuit of relief for their clients. In a related case last month, a federal judge granted a new trial based on Kindred’s misconduct after a defense request.
Burk represented himself during the original proceedings and had initially filed a motion seeking more information about Kindred’s relationship with Vandergaw and any undisclosed communications regarding his case. However, following the Justice Department’s recent request to vacate Burk’s conviction, the court deemed Burk’s request for further discovery moot.
The case is currently assigned to Chief Judge Sharon Gleason, following the withdrawal of Vandergaw and another prosecutor, James Klugman, from the matter. Klugman had been involved in filing the initial indictment against Burk in 2019. The motion to vacate the conviction was signed by Steven Clymer, a seasoned attorney recently appointed to the Alaska U.S. Attorney’s office.
A spokesperson for the U.S. Attorney’s office in Alaska declined to provide additional comments beyond what was stated in the court filing. The request to dismiss Burk’s conviction comes amid ongoing scrutiny regarding judicial conduct and prosecutorial ethics in Alaska.
Source: Bloomberg Law
