One or two of you may remember that I penned a column on the stall-out of a very important Nevada case with implications well beyond the fate of the death row inmate at issue. I noted that if the Nevada Supreme Court would stop fighting a very simple order from the United States Supreme Court (SCOTUS), the man on death row would likely get a new trial — and hundreds of people in prison, or facing prison, would get a brand new light shined on their situations.
I wrote the column with hopes that it all might reasonably be sorted out, especially as many litigants that are not parties to the litigation (let alone the man on death row) have been waiting (and waiting) for years for agreement by the Nevada Supreme Court that we will do things right from now on. Since that almost universally ignored column first appeared (I swear I’m trying to make these opinion pieces snappy!) the Nevada Supreme Court has (finally!) made a ruling – sort of. I say “sort of” because the ruling confounds the mind when it comes to interpreting what sure looked like a direct mandate from SCOTUS.
In a nutshell, the SCOTUS order said Nevada has been using the wrong standard for ferreting out biased (or potentially biased) judges. And until the Nevada Supreme Court acts, the wrong standard for removing judges will continue to be used. And the hundreds of imprisoned people I mentioned above will not get a chance to be heard.
To refresh your memory about the most relevant facts, Michael Rippo has been on death row for more than 20 years after being convicted by a jury of a double homicide from 1993. One persistent claim in the many appeals submitted by Mr. Rippo and his lawyers was the bias of the trial judge. The basis of that claim was the allegation that the trial judge was being investigated for bribery by the very same district attorney’s office that was prosecuting Mr. Rippo.
After years of state and federal claims for relief, Mr. Rippo finally (seemed to) get good news from SCOTUS.
First, the SCOTUS held that when it comes to determining whether a judge should be removed from hearing a matter, Nevada has been applying “the wrong standards.” In short, Nevada has been requiring proof of “actual bias” whereas SCOTUS says the law of the land is something rather less stringent. A judge may be required to bounce from a case even if a criminal defendant can’t prove “actual” bias, but can show a reasonable appearance of one.
Bias is a big deal. The lady with the blindfold, the scales, the Al Pacino movies of the 70s. The integrity of our whole judicial system starts with neutrality from the gatekeepers. And as our gatekeepers (judges) are granted broad, undisturbed discretion in most of their rulings and decisions, the need to make sure they aren’t harboring biases should be self-evident.
The issue comes up more than you’d think, but the “actual bias” standard Nevada has been wrongly applying has been so hard to overcome that many judges who should not have been hearing cases got to remain in the courtrooms. (This doesn’t even touch upon the open-secret of a whole cadre of “hanging judges”, “max penalty judges”, “hard-asses” and “second prosecutor” judges who pervade Nevada. Hard cheese to the accused citizen who lands in one of these courtrooms.)
Removal of a biased judge is often the only thing a defendant can hope for in order to get a fair trial, and this is what Nevada was ordered to take a relook at.
Second, the SCOTUS held that Mr. Rippo did not get to fairly bring evidence into the record even though there was more than a strong suggestion that not only did the evidence exist, it was persuasive, because Nevada used the wrong bias standards. There was no discussion by the SCOTUS of any other issue on this point. Possible bias was enough to give Mr. Rippo some sort of relief, and the SCOTUS told the Nevada Supreme Court to do something about that. It was not interested in all the other minutiae of the case or other holdings the Nevada Supreme Court made in past orders.
The SCOTUS mandate I’m referencing was issued on March 6, 2017. My column in The Indy came out on June 7, 2018. I can report that on Aug. 2, 2018, the Nevada Supreme Court did something, but arguably not what it was told to do. (Also, the state court gave no explanation for the almost year and half delay. And there has been no news coverage on this development.)
Following is what the Nevada Supreme Court did, much to the chagrin of people hoping for a mea culpa for applying the wrong standards on bias and certainly to the displeasure of Mr. Rippo who to this day remains on death row.
The Nevada Supreme Court’s “something”
On Aug. 2, the state’s high court issued a 69-page response to the two-and-a-half page SCOTUS mandate. The first 62 pages of that opinion are signed off on by the majority (four of seven) of the Nevada Supreme Court justices. (One judge, Justice Linda Stiglich, did not participate in the proceedings. This is presumably because she was not on this bench when the SCOTUS mandate was handed down, though it is not explained why that would disqualify her from participation.)
Instead of responding directly to the SCOTUS mandate, the 62-page opinion authored by Justice James Hardesty took a weird turn. It basically treated the mandate as an order to correct a typo.
To paraphrase SCOTUS: Hey, that last order you wrote and really, the entire way you’ve been treating this Rippo case, is messed up because you used the wrong standard of bias; and because you used the wrong standard you didn’t consider highly relevant evidence about the judge and district attorney. What the majority of the Nevada Supreme Court did in response was to add a couple of sentences into its old (and wrong) order.
This is an odd approach which only fuels more curiosity. Typically, with a narrow directive from SCOTUS, you’d think the judicial majority would just focus on the one point of controversy and not rehash everything. They didn’t. Indeed, it almost looks like a strategy to indirectly rebuke SCOTUS by suggesting that even if SCOTUS is right, it really shouldn’t matter in the big picture. It’s quite stunning: the majority opinion never accepts (or even comments on the fact) that SCOTUS said Nevada has been using the wrong standard of bias. Whether this is an odd tactic by a defiant court to deflect addressing the finding of wrongdoing or just a missed opportunity is hard to say.
There is nuance here, one not lost on a careful read of the opinion. Mr. Rippo not only had the wrong standards applied to his claims, not only was denied a proper hearing and a proper right for discovery of information from the district attorney’s office (which may have falsely made a claim belied by records,) and not only was denied the chance to get into issues regarding the failure of his prior counsel to do their job, but Mr. Rippo also was continually told via every single court opinion in Nevada for decades that he was procedurally barred from even pursuing his basic claim of bias.
In the face of all this, the majority opinion of the state’s high court explicitly ignored all the claims of wrongness laid down by SCOTUS except the least important. In lay terms, all they did was cling to the obvious: Mr. Rippo does get to move forward and thereby possibly get more “discovery.” The SCOTUS mandate guaranteed that. But instead of acknowledging the thrust of the mandate, the state court sent the matter back down to the trial court to hold a very limited hearing to assess Mr. Rippo’s prior allegation of bias.
Pickering did not take this opinion lightly and issued her own opinion in tune with the language of the SCOTUS mandate, along with a dire prediction.
“I would remand not just for discovery and an evidentiary hearing, but also briefing on the mandate rule as it applies to Rippo’s judicial bias claim,” Justice Pickering asserted. “Rippo may be entitled to a new trial if he can show the State defeated his original judicial bias claim by falsely denying its involvement in the investigation of the judge.”
My take on that language is that Rippo is actually much further down the road of relief than was suggested by the majority and, oh, by the way: the standard of bias we should have been applying all along is a real concern. Pickering (joined again by Cherry on the judicial bias issue) further offers: “If we are wrong in our interpretation, additional delay and yet further proceedings, including additional discovery and even reversal, may result.” Justice Pickering concludes by stating that the case should be remanded to the lower court for a hearing and for a broader analysis and argument on the judicial bias claims, “consistent with the Supreme Court’s mandate.”
So what’s next, and what else?
Rippo’s case is set to be heard by Judge Kathleen Delaney on Monday, Dec. 17, the hearing ordered in the majority opinion. Whichever way Judge Delaney interprets the higher court’s mandate in this case, the bigger issue of dealing with issues of bias in our state courts appears to have been squarely kicked down the road to….nowhere?
Not content with nowhere, or what could be a few more years of litigation, the lawyers for Mr. Rippo decided to heat up the matter by asking the Nevada Supreme Court to take another look-see at the way the Rippo case should be handled. In essence, their filings took the majority of the Nevada Supreme Court to task for not following the SCOTUS mandate and ignoring established facts in the case — and ended with a threat to take the matter back to SCOTUS. In doing so, they also notched things up by meticulously painting a picture of what would appear to be a very corrupt Clark County district attorney’s office blatantly lying for decades about how much it was involved in the Rippo trial judge’s corruption case.
The facts are so salacious, and the deception so detailed, that it’s hard to believe the district attorney can remain on this case. One of the juicer bits from the new motion by the federal public defender is evidence that the D.A. created a fake criminal case and forged documents with the sole intent of getting the case assigned to the judge under investigation so the FBI could effectuate a bribery sting. Let me say that again: the D.A.’s office has denied it had ANYTHING to do with the investigation, and yet according to the research of the federal attorneys for Rippo, the D.A. signed off on a pretend criminal case, fraudulently presented it to a court of law as legitimate, and allowed it to remain in the system as the FBI worked its undercover agents to see whether the judge under investigation would take the bait.
Also, in a remarkably audacious twist, the federal filings say that same district attorney’s office similarly requested that the Nevada Supreme Court revisit its response to the SCOTUS mandate — only the D.A.’s office asks that the court strike ALL language about judicial bias so that SCOTUS can’t procedurally spank Nevada, again, on this issue. (You’re welcome for being able to skip all the hyper-technical argument on this point! But if you law geeks want to read it for yourself, it’s all public record. Basically, the D.A. appears to have a theory that if Nevada doesn’t give too much play to the SCOTUS mandate, SCOTUS loses oversight.)
Surprise of surprises (the sarcasm, it drips), the Nevada Supreme Court denied both sides a re-hearing but took five more pages to rationalize and justify their earlier 69-page re-order — and now they’re referring to proceedings as Rippo I, Rippo II, Rippo III, Rippo IV and Rippo V. Then, they amended a line here or there, while still (!) failing to acknowledge that SCOTUS called out Nevada. And still kicked the Rippo case down to the district court to do see what the heck the judge makes (heads or tails?) out of even more words about something that should be a quite simple question:
Based on the compelling evidence of bias, and the overwhelming appearance of bias, why wouldn’t we just give this Rippo guy a new trial?
Judicial bias in an elected system is a big problem that needs to be fixed, and now it’s clear that the Rippo matter will not be the vehicle. In fact, it looks like Mr. Rippo is being set up for years more delay just to get an answer on a new trial — at least based on the prediction of Justice Pickering (and Justice Pickering’s new dissent in the new pleading that her colleagues (save Justice Cherry who joined her) don’t seem to understand.) For the rest of those hundreds affected by “the wrong standard” of finding bias, the journey to justice hasn’t even begun. And for those taking a hard look at what to do with our funky Nevada death penalty law, this may be another reason to give up the ghost on killing our current inmates, no matter the heinousness of their crimes.
Dayvid Figler is a private criminal defense attorney based in Las Vegas. He previously served as an associate attorney representing indigent defendants charged with murder for the Clark County Special Public Defender’s office. During his legal tenure, he served a brief appointment as a Las Vegas Municipal Court judge. Figler has been cited as a noted legal expert in many places including the New York Times, National Public Radio, Newsweek, USA Today, Court TV and the Los Angeles Times. His award-winning radio essays have appeared on KNPR as well as on NPR’s All Things Considered program.