An Alaska man convicted of cyberstalking will get a new trial after revelations that the judge handling his case received nude photos from a government attorney involved in his prosecution.
Former U.S. District Court Judge Joshua Kindred resigned in early July, days ahead of a report by the 9th Circuit’s Judicial Council that he had inappropriate, sexualized relationships with two prosecutors. Kindred also created a hostile work environment for his law clerks, including one he sexually harassed, and sent inappropriate text messages to his staff, the report said.
That has left a lingering question of whether Kindred’s relationships with the prosecutors – like the one who assisted in the cyberstalking prosecution and sent him nude photos – affected his impartiality.
The prosecutors worked in the U.S. Attorney’s Office for Alaska, which has identified more than 40 cases with potential conflicts that it is reviewing. At the same time, the Department of Justice’s Office of Professional Responsibility is investigating how the Alaska U.S. Attorney’s Office handled the matter.
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And as first reported by Bloomberg Law, at least one defendant on the list of cases under review has won a new trial.
On Friday, a new judge assigned to the case issued a ruling that Rolando Hernandez-Zamorra, whom a jury convicted in June of cyberstalking his ex, should get a new trial. The judge is filling in from Oregon because, with Kindred’s resignation, there is only one active judge currently working in the District of Alaska.
Hernandez-Zamorra’s attorney, Alexis Howell, said text messages were the basis of the government’s case against her client and that he deserved a new trial because of the potential conflict of interest and the similarities between his case and the findings in the report on Kindred.
“His conduct with some of his law clerks could, under the federal statute, be constituted as cyberstalking, and that’s what my client was charged with,” Howell said. “I think there’s some serious concerns when you have a judge sitting in judgment of somebody that’s charged with essentially the same crime as what he’s committed.
Hernandez-Zamorra’s conviction came just a few days before Kindred’s resignation, apparently prompted by the imminent release of the 9th Circuit’s report, which was based on an 18-month investigation.
Because of that timeline, Howell said, the U.S. Attorney’s Office either knew or should’ve known more than it revealed about the judge’s inappropriate relationship with a senior assistant U.S. Attorney who was in the courtroom for the proceedings and advising the prosecutors in Hernandez-Zamorra’s case.
“Rolando was forced to take it at face value that he had a fair trial, and the reality was he didn’t,” Howell said.
The new judge agreed and said even if he had not seen evidence that Kindred’s relationship with the prosecutor had caused him to be biased against Hernandez-Zamorra, the appearance of such a bias was enough to justify a new trial, Howell said.
Ultimately, a new trial will take much more time and money, said Howell, who was assigned to represent Hernandez-Zamorra under the Criminal Justice Act, meaning she and defense experts are paid with federal taxpayers’ money, because Hernandez-Zamorra was unable to afford a private attorney.
That’s on top of the salaries of the judge and prosecutors and the jury members’ time that was wasted, she said.
“I mean, it’s not a cheap, easy thing to run a federal criminal trial,” Howell said. “And essentially, what’s happened is now we have to go back to square one to guarantee that Rolando has a trial that’s fair and meets his constitutional rights of due process.”
Hernandez-Zamorra is just one of the dozens of defendants whose attorneys are seeking to have their clients’ indictments or convictions thrown out. Legal experts say reviewing Kindred’s cases and dealing with the fallout is taking time and resources away from other work the U.S. Attorney’s Office is tasked with, including prosecuting drug conspiracies and cybercrime.
A spokesperson for the U.S. Attorney’s Office did not respond to a request for comment.
Casey Grove is host of Alaska News Nightly, a general assignment reporter and an editor at Alaska Public Media. Reach him atcgrove@alaskapublic.org. Read more about Caseyhere.
