The local attorney who sent “sexually suggestive text messages” to Judge Kindred is the wife of an Anchorage Superior Court judge

A Landmine investigation has found that the local attorney referenced in the Ninth Circuit Judicial Council’s detailed report on former Judge Josh Kindred is Michelle Nesbett. Nesbett has worked at the law firm Birch Horton Bittner & Cherot since 2020. She previously worked in a law firm with her husband. Nesbett’s connection to Kindred raises serious ethical concerns and conflicts of interest in Alaska’s justice system.

Nesbett is married to Anchorage Superior Court Judge David Nesbett. David Nesbett is the grandson of Buell Nesbett, the namesake of the Nesbett Courthouse in Downtown Anchorage.

According to the original Special Committee report, “Judge Kindred’s unprofessional conduct extended well beyond his office. As stated in the report, Judge Kindred received nude photographs from another, more senior Assistant United States Attorney (ASUA) who practiced before him. Judge Kindred discussed these photographs with his law clerk. According to the report, he also received “sexually suggestive text messages from a local lawyer who regularly appeared before him, which he also discussed with his legal trainees.” (emphasis added)

The assistant U.S. attorney mentioned in the report who sent nude photos to Kindred was identified as Karen Vandergaw, who has since been demoted. When the matters related to Kindred were presented to U.S. Attorney for Alaska Lane Tucker in October 2022, she reported them to the chief judge and the district court.

A July 12 email sent by Assistant U.S. Attorney and Chief of the Criminal Division Bryan Wilson to the Federal Defense Agency states:

When we first became aware of the possibility of potential conflicts of interest in late October and early November 2022, we proactively took steps to mitigate any conflicts until their veracity was investigated. We accomplished this by, among other things, informing the District Court Chief Judge of all allegations of which we were aware and cooperating fully with the investigation. Out of an abundance of caution, we also requested at that time that the cases involving three AUSAs and one defense attorney be administratively assigned or removed from Judge Kindred. The Court then did so beginning on November 15, 2022, and until Kindred’s resignation.

Vandergaw, Seth Brickey-Smith and Tara Lewis were the three assistant U.S. attorneys whose cases were taken over by Kindred. Lewis was Kindred’s former law clerk and, according to the report, had two intimate encounters with Kindred shortly after she began her work as an assistant U.S. attorney.

Until now, only the U.S. Attorney’s Office in Alaska knew that the defense attorney in question was Michelle Nesbett.

All cases were reassigned by Kindred on the same day, November 15, 2022. A review of PACER – a tool for accessing federal court records – shows that Nesbett was reassigned two cases by Kindred that day. Both cases were assigned to her by the Criminal Justice Act Panel. Nesbett is one of several criminal defense attorneys who are permitted to serve as defense counsel in cases from which the Federal Public Defender Office is barred due to conflicts of interest.

The first case was USA v. Martinez. This case was assigned by Kindred to Judge Burgess on November 15, 2022.

The second case was USA v. Pompa-Villa. In that case, Nesbett and Vandergaw were the opposing counsel. That must have been an interesting case! USA v. Pompa-Villa was also assigned to Judge Burgess on November 15, 2022.

Both Nesbett and Vandergaw applied for the vacant federal judgeship last April. That position became available when Judge Burgess moved to senior status in late 2021. It remains vacant because Senators Lisa Murkowski (R-Alaska) and Dan Sullivan (R-Alaska) could not agree on a name to recommend to President Joe Biden.

In her application letter to the Alaska Bar Association, Nesbett mentioned her husband, two daughters, and supposedly happy life. It is notable that Nesbett and Vandergaw both applied for the vacant judgeship five months after their cases were reassigned by Kindred and when they knew they were both involved in an ongoing investigation.

On November 20, 2023 – a year after the first reassignments – Nesbett and two of her colleagues filed a motion to serve as alternate counsel in a case. The next day, Kindred recused himself.

Multiple sources confirm that Kindred endorsed Nesbett for the vacant federal judgeship, even going so far as to arrange meetings with and introduce high-ranking officials in Murkowski and Sullivan’s offices. In the attorney survey conducted by Senator Murkowski’s office for the candidates, one respondent stated that Nesbett “developed a very close relationship with Judge Kindred.”

Nesbett served a term as attorney representative to the Ninth Circuit Judicial Conference. When her term ended on March 30, 2024, the position was advertised by the Alaska Bar Association. In an advertisement for the position, the bar association stated, “Attorney representatives work to promote open communication between federal judges and attorneys and provide support and advice in the work of the Court.”

In a strange twist in Alaska, Nesbett represented Maria Athens after the insane scandal in 2020 that led to the resignation of then-Anchorage manager Ethan Berkowitz.

Michelle Nesbett did not respond to multiple phone calls and emails seeking comment for this story over a four-day period.