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Judiciary

Prosecutor who sent nude photos to federal judge ‘felt trapped,’ thought she had no choice, cited letter says

By Debra Cassens Weiss

December 11, 2024, 2:57 pm CST

An assistant U.S. attorney in Alaska said she felt “completely powerless” when then-U.S. District Judge Joshua M. Kindred of the District of Alaska asked for nude photos around the same time that he allegedly texted her about holding grudges and his power to help her win a nomination to the federal bench, according to documents unsealed Monday.

The assistant U.S. attorney’s allegations were revealed after Senior U.S. District Judge Marco A. Hernández of the District of Oregon unsealed his September order granting a new trial to a cyberstalking defendant. Kindred presided in the case, and the assistant U.S. attorney described as “AUSA 1” had some prosecution involvement.

“The specific, unusual and highly troubling facts of Judge Kindred’s interactions and relationship with AUSA 1 give rise to at least the appearance of impropriety,” Hernández wrote when he granted the new trial.

Hernández also unsealed a defense brief that cited the prosecutor’s August letter detailing her relationship with Kindred. The brief does not indicate the recipient of the letter but says it appears to be in response to Kindred’s July resignation and the filing of motions by the defense counsel.

Reuters and Law360 have coverage, while the Volokh Conspiracy published part of the opinion.

Kindred abruptly resigned from the federal bench in July after he was referred to the U.S. Judicial Conference for possible impeachment. The judicial council of the 9th U.S. Circuit Court of Appeals at San Francisco had requested the resignation after concluding that Kindred created a hostile work environment for his law clerks and had a “sexualized relationship” with one of them.

The May judicial council report also mentioned the federal prosecutor who sent nude photos to the judge.

A defense motion for a new trial in the cyberstalking case included information said to have been in the letter from “AUSA 1.” The redacted letter was disclosed to the defense by a federal prosecutor tapped to review Kindred’s cases and whether recusal might have been required.

Before she sent the photos, “AUSA 1” said, Kindred sent texts saying he found her attractive, and he had recommended her for a federal judgeship. Shortly before that, Kindred allegedly texted “AUSA 1” about anger issues and holding grudges.

Her letter said she felt pressured to send the photos, according to the defense motion.

“I felt trapped and believed I had no choice,” she wrote. She thought that she “had no other option because he has the power to ruin not only my career but my personal life, as well.”

The prosecutor made the accusations after saying in an earlier letter that her relationship with Kindred was purely professional, according to Hernández’s order.

The cyberstalking defendant was tried and convicted a second time last month, according to a Dec. 6 press release.

An Alaska mom will spend the next several decades behind bars for the suffocation murder of her infant daughters two years apart.

In July, Stephany Elizabeth Bilecki, 30, formerly known as Stephany LaFountain, pleaded guilty to two counts of murder in the second degree over the deaths of her 4-month-old and 13-month-old baby girls.

On Monday afternoon, in a Fairbanks courtroom, Bilecki was sentenced to 130 years in prison — with 85 years suspended. In total, she will serve 45 years in state prison.

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3. Ballard Spahr announces merger that ‘is just…

Law Firms

Ballard Spahr announces merger that ‘is just the tip of the next iceberg’ in Pacific Northwest

By Debra Cassens Weiss

September 10, 2024, 9:32 am CDT

Ballard Spahr is expanding into the Pacific Northwest through a merger with Lane Powell, the law firms announced Monday.

Ballard Spahr will gain offices in Anchorage, Alaska; Portland, Oregon; and Seattle through the merger, which is set to take effect Jan. 1, 2025, according to a Sept. 9 press release. The combined firm will have more than 750 lawyers in 18 U.S. offices.

“We’re bullish on the Pacific Northwest—we really see opportunities in all three cities,” Peter Michaud, the chair at Ballard Spahr, told Law.com.

He joined Ballard Spahr through its 2018 merger with Lindquist & Vennum and became the chair this year. He will also chair the newly merged firm.

Greg Walther of Emerald Search Partners, a legal staffing and recruiting company, told Bloomberg Law that the Pacific Northwest is home to major technology companies, as well as an emerging biotech industry.

The merger “is just the tip of the next iceberg,” Walther said. “I’m sure there are a lot of other Am Law 50 firms looking at merging or planting a flag here in the Pacific Northwest.”

The merged firm will be called Ballard Spahr, although in the Pacific Northwest it will use the name Ballard Spahr Lane Powell for the next few years, Michaud told Law360.

Lane Powell, founded in 1875, has nearly 180 attorneys. Ballard Spahr has more than 600 lawyers in 15 U.S. offices.

Michaud told Bloomberg Law that Ballard Spahr will keep a one-tiered partnership “for the foreseeable future,” even though Lane Powell has a nonequity partnership tier.

The issue is “something that we’ll probably tackle as a combined firm,” Michaud told Bloomberg Law. In the meantime, he said, the focus will be on helping every Lane Powell attorney understand that they are important “regardless of what their what their title is.”

Michaud also told Bloomberg Law that Ballard Spahr is considering other growth opportunities in intellectual property and in the areas of Texas and Florida.

“As the combined firm, all of us will work together to figure out what … the next move should be,” he said.

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3. 2nd Circuit cites push notifications to jurors…

Tort Law

2nd Circuit cites push notifications to jurors as one reason why Sarah Palin deserves new defamation trial

By Debra Cassens Weiss

August 28, 2024, 2:54 pm CDT

Former Alaska Gov. Sarah Palin, a Republican, is entitled to a new trial in her defamation case against the New York Times, partly because a jury finding of no liability was marred by push notifications received by jurors, a federal appeals court ruled Wednesday.

The 2nd U.S. Circuit Court of Appeals at New York said U.S. District Judge Jed Rakoff of the Southern District of New York wrongly intruded on the province of the jury when he ruled during deliberations that the case should be dismissed because of insufficient evidence that the newspaper and one of its editors acted with actual malice.

Rakoff allowed the jury to issue a verdict anyway, and it found no liability. But the verdict was marred by some of Rakoff’s decisions and by push notifications that some jurors received about Rakoff’s finding of no actual malice, the appeals court said in its Aug. 28 opinion.

Law360 covered the 2nd Circuit’s decision in favor of Palin, a Republican who was the 2008 vice presidential candidate. She had sued over a June 2017 editorial linking the shooting of a Democratic congresswoman with a digital crosshairs graphic published by Palin’s political action committee.

Rakoff’s law clerk had learned about the push notifications when interviewing jurors following the verdict to see whether they had problems understanding the legal instructions.

A push notification from a news application can appear at the top of a cellphone or on a lockscreen even when the app is closed, the 2nd Circuit explained.

Jurors said they were not prejudiced by the push notifications, which were “an unfortunate surprise” to Rakoff, the appeals court said. But Rakoff was wrong in concluding that the jury verdict was not prejudiced, the appeals court concluded.

“Given a judge’s special position of influence with a jury, we think a jury’s verdict reached with the knowledge of the judge’s already-announced disposition of the case will rarely be untainted, no matter what the jurors say upon subsequent inquiry,” the 2nd Circuit said. “We therefore conclude that a new trial is warranted on this basis.”

The 2nd Circuit panel also said Rakoff erred by excluding some evidence offered by Palin and by improper jury instructions.

The New York Times editorial had linked a 2011 shooting that wounded then-U.S. Rep. Gabby Giffords, a Democrat from Arizona, to a map by Palin’s political action committee showing targeted electoral districts in a crosshairs. Six people were killed in the shooting, including a federal judge.

The New York Times had declared that “the link to political incitement was clear,” even though the attack was viewed as stemming from the perpetrator’s mental illness, according to the 2nd Circuit.

The New York Times later issued corrections saying the crosshairs were placed over targeted electoral districts, not photos of politicians, and saying there was no established link between political rhetoric and the shooting.

Palin sued the New York Times and James Bennet, then the editorial page editor, who had written the sentence about the link to political incitement being clear.

The 2nd Circuit said Rakoff should have allowed evidence that Bennet’s brother, Michael Bennet, was a Colorado Democratic U.S. senator, that Bennet was involved in his brother’s 2010 reelection bid, that the crosshairs map targeted the districts of two Democrats in the House of Representatives who endorsed Bennet’s brother, and that Palin had endorsed the person running against Sen. Bennet.

The appeals court said the evidence was relevant, and it could lead a reasonable juror to infer that Bennet had “a reason to personally dislike Palin, and that it was therefore more likely that he intentionally or recklessly, rather than inadvertently, connected her” to the shooter who wounded Giffords.

Rakoff should also have allowed introduction of three prior New York Times opinion articles that could “be plausibly read” as casting significant doubt on links between the shooting and the crosshairs map, the 2nd Circuit said. Bennet had testified that he “must have read” the prior articles.

Judge John M. Walker Jr., an appointee of former President George H.W. Bush, wrote the panel opinion. It was the second time that the 2nd Circuit ruled in the case. Rakoff had previously tossed the case without a trial, but the appeals court ruled in 2019 that he followed the wrong procedure and reinstated the lawsuit.

The case is Palin v. New York Times Co.

A man hit a woman over 100 times, shot her in the stomach, bound her with zip ties, gagged her and taped a plastic bag around her head before covering her body with a sleeping bag. He then put the body it the car and crashed into a pole.

Cops in Alaska made the grisly discovery in 2016 and charged Benjamin Wilkins with murder. On Wednesday, a judge sentenced Wilkins, now 43, to 75 years behind bars.

Anchorage police on June 27, 2016, responded to the traffic crash in the 2800 block of Debarr Road near Alaska Regional Hospital. Cops quickly realized Wilkins was impaired. As they were waiting for the tow truck, they saw what appeared to be a passenger under a sleeping bag and found the body of 30-year-old Jacqueline Goodwin. She had plier marks and bruises throughout her body and her teeth were broken, the Juneau Empire reported at the time. The medical examiner determined the cause of death was from asphyxiation, blunt force trauma and gunshot wound to her stomach, the outlet reported.

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3. Warrant required for overhead zoom-lens search…

Privacy Law

Warrant required for overhead zoom-lens search that could reveal ‘intimate’ and ‘unflattering’ details, top state court says

By Debra Cassens Weiss

March 12, 2024, 1:29 pm CDT

The Alaska Constitution requires police to get a warrant if they use binoculars or cameras with zoom lenses to look into a yard from a plane, the Alaska Supreme Court has ruled.

The state supreme court ruled March 9 for John William McKelvey III, who sought to suppress evidence from a search that allegedly found marijuana plants, methamphetamine, scales, a loaded AK-47 rifle and a large amount of cash at his home north of Fairbanks, Alaska.

The Alaska Beacon, the Associated Press and Alaska’s News Source have coverage, while the Legal Profession Blog has highlights from the opinion.

Alaska state troopers focused on McKelvey after they received a tip in 2012 from an informant that he was growing marijuana on his property. The officers flew over McKelvey’s property in a plane, snapped photos using a camera with a high-powered zoom lens, and obtained a search warrant after the photos revealed buckets of unidentifiable plants in a greenhouse.

McKelvey was convicted of possession of methamphetamine and possession of a gun in connection with a drug crime.

The state supreme court said the Alaska Constitution’s ban on unreasonable searches and seizures should be given a liberal interpretation because of another state constitutional provision that explicitly recognizes a right to privacy.

“The state argues that because small airplane travel is so common in Alaska and because any passenger might peer into your yard and snap a picture of you, law enforcement officials may do the same,” the Alaska Supreme Court said. “We disagree. The Alaska Constitution protects the right to be free of unreasonable searches. The fact that a random person might catch a glimpse of your yard while flying from one place to another does not make it reasonable for law enforcement officials to take to the skies and train high-powered optics on the private space right outside your home without a warrant.”

The Alaska Supreme Court said using a high-powered lens while flying overhead has the potential to reveal “intimate details,” such as “an unflattering photo of a person in a swimsuit, images of a person practicing a silly dance with their children, or expressions of religious devotion that one might not wish others to see. The mere knowledge that the government could make these kinds of detailed observations without a warrant may discourage Alaskans from using their curtilage to live their private lives.”

Two concurring justices said the Alaska Supreme Court should have gone further by requiring warrants for any plane surveillance, rather than aerial surveillance carried out with technological enhancements.