The Volokh Conspiracy
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Order Unsealing Opinion Granting New Trial Based on Judge's Sexting Relationship With One of the Prosecutors
From Judge Marco Hernandez's decision posted yesterday in U.S. v. Hernandez-Zamora (D. Alaska); for the order granting a new trial, see this other post:
On July 19, 2024, Defendant filed a motion for either dismissal of the indictment or a new trial based on misconduct by former U.S. District Court Judge Joshua Kindred and a senior Assistant United States Attorney ("AUSA 1"). Prior to filing a response to Defendant's motion, the Government sought a protective order concerning confidential material it planned to disclose to defense counsel. The Court granted the motion for a protective order, and all materials that were subject to the protective order were filed under seal, including the response and reply briefs related to the motion for a new trial.
The Court ultimately granted Defendant's motion for a new trial, finding that the relationship between Judge Kindred and AUSA 1 created an appearance of impropriety in violation of 28 U.S.C. § 455. The Court's opinion, which referenced the sealed materials, was also filed under seal.
Now, Defendant … asks that the Court unseal and remove redactions from these court filings, arguing that they contain important information about judicial and prosecutorial misconduct in this case. The Government opposes Defendant's motion….
"Historically, courts have recognized a 'general right to inspect and copy public records and documents, including judicial records and documents.'" There is a "strong presumption in favor of access" to court records except for those traditionally kept secret, such as grand jury transcripts and warrant materials. Courts, therefore, require "compelling reasons" to seal judicial records: "[T]he party [seeking to seal a judicial record] must articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure, such as the public interest in understanding the judicial process." …
The Government has not demonstrated a compelling reason to maintain the materials related to Defendant's motion for a new trial under seal. There is a significant public interest in Defendant's motion for a new trial, and the information the Government seeks to maintain under seal goes to the heart of that motion. The timing and details of the relationship between AUSA 1 and Judge Kindred as well as the Court's reasoning in granting Defendant's motion for a new trial should be accessible to the public.
While the documents reference matters of a very private nature that will have repercussions for the AUSA 1, these concerns are significantly outweighed by the public's interest in the litigation surrounding the motion for a new trial given theF conduct of both Judge Kindred and AUSA 1, and its potential impact on other matters in the District of Alaska…. "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." … {Indeed, the Government has since filed a Motion for Order Permitting Production of the Court's sealed Opinion & Order granting a new trial because there are pending cases which may be affected by Judge Kindred's misconduct.}
The Court, however, finds that there are compelling reasons to protect AUSA 1's identity. To balance the public's interest with the Government's concerns that the court documents will be used for an improper purpose—such as public scandal—the Court will require the parties to amend their public filings so that the name of AUSA 1 is not revealed. Where possible, the parties shall amend their documents to refer to the senior AUSA as "AUSA 1," as the Court has done in this decision. If a document cannot be so amended—for example, in February 2023 and August 2024 letters—AUSA 1's name shall be redacted.
The Court also finds there are compelling reasons to maintain the redactions in the February 2023 and August 2024 letters. As the Government notes, the redacted materials would only serve to reveal additional private information with no relationship to the motion for a new trial. The redactions in the February 2023 and August 2024 letters include recipient information and matters unrelated to AUSA 1's relationship with Judge Kindred. This information is not relevant to Defendant's motion for a new trial….
The misconduct, according to the opinion granting a new trial, included this:
In December 2021 Judge Kindred began texting frequently with a senior [Assistant U.S. Attorney] ("AUSA 1"), sending her "selfies," and telling her that he found her attractive. Judge Kindred also began asking AUSA 1 to send him nude photographs of herself. AUSA 1 agreed to share nude photographs of herself with Judge Kindred via the encrypted messaging app Signal, and "he agreed to delete everything." AUSA 1 then began sending Judge Kindred nude photographs. AUSA 1 also sent Judge Kindred text messages "describing how [she] would perform oral sex on him." Judge Kindred would "frequently" send AUSA 1 texts "detailing … his fantasies of performing oral sex and anilingus on [her]."
