Ex-Alaska Judge Texted With Prosecutor About Ongoing Trial (1)

Ex-Alaska federal judge Joshua Kindred texted with a federal prosecutor about an ongoing criminal trial where he was presiding and she attended, defense lawyers said in a new federal appeals court filing.

Kindred’s sexualized relationship with that assistant US attorney who previously served as his clerk helped prompt his resignation in July, and defense attorneys are citing the newly disclosed texts as part of an effort to get the defendant a new trial.

That clerk-turned-prosecutor attended an October 2022 criminal trial over which Kindred presided, and “communicated with Kindred via text during the pendency of the trial” in messages that contained “case-related commentary,” the Alaska federal defenders office said in filings Wednesday at the US Court of Appeals for the Ninth Circuit. The defendant, Jessica Spayd, was found guilty of drug distribution offenses and sentenced to 30 years in prison.

The government told defense counsel that it obtained the texts after the trial, but before the defendant was sentenced in June 2023, according to the declaration, signed by Michael Marks of the Alaska federal defenders and filed alongside a motion to pause his client’s appeal while Spayd seeks a new trial.

“U.S. Attorney’s Office management indisputably knew of the conflicts shortly after the verdict,” the motion said. However, the government did not inform defense counsel or the trial prosecutors until nearly two years after the conviction, according to the filings.

Alaska US Attorney Lane Tucker and her top deputy, Kathryn Vogel, “allowed the trial prosecutors to go to sentencing without any knowledge of Kindred’s conflict of interest or the text messages” he exchanged with his former clerk-toward-prosecutor during the trial, the motion said.

“For his part, Kindred never revealed any conflict of interest to Ms. Spayd before he sentenced her to 30 years in prison,” the motion said.

A spokesperson for the Alaska US attorney’s office and a representative for the former clerk didn’t respond to requests for comment.

The exchange of text messages between Kindred and a prosecutor regarding an ongoing criminal case hasn’t previously been reported.

Prosecutors disclosed the text messages to defense counsel in August, according to the public defenders’ motion. The government has also provided two batches of text messages between Kindred and his former clerk, which were shared under a protective order.

Case conflicts

Spayd’s case is one of several where lawyers have indicated plans to request a new trial in light of potential conflicts of interest stemming from Kindred’s misconduct.

The Ninth Circuit Judicial Council found that the former judge sexually harassed his clerk, created a hostile work environment for other employees, had inappropriate relationships with lawyers who appeared before him, and lied about his conduct to investigators.

The US attorney’s office has said it learned of these conflicts in fall of 2022 and referred the allegations to the Ninth Circuit to investigate.

Last month, a federal judge ordered a new trial for an Alaska man convicted of cyberstalking in Kindred’s courtroom, on judicial misconduct grounds. That new trial was granted because of the involvement in the case of a senior prosecutor, later identified by Bloomberg Law as Karen Vandergaw, who was found to have sent nude photos to Kindred.

The case is USA v. Jessica Spayd, 9th Cir., No. 23-1303, 10/9/24