On March 6, 2017, the United States Supreme Court (SCOTUS) issued a smackdown of sorts to the Nevada Supreme Court when it indicated that when it came to determining whether a judge could be biased when presiding over a case, Nevada had been asking the wrong questions and applying the wrong standards. In a per curiam order, SCOTUS mandated that the Nevada high court re-evaluate the death penalty case at issue. The Nevada Supreme Court formally lodged the higher court’s order on April 7, 2017. Almost 14 months later, there has been no action, decision or compliance with the mandate. Michael Rippo, the defendant at the center of that decision, remains on death row.

The delay, the issue, and a bigger conversation on judicial bias — in a state where the judges are elected and actively solicit contributions — are all implicated in this little-publicized SCOTUS development. Here’s why this case is important.

Background

Legal precedent can be dry. Important, but sometimes dustier than a windy day at Bonnie Springs when the Emus are ornery. And so, as is tradition, we must talk about cases in the context of the often horrific fact pattern that underlies the issues at hand. (Note: It’s a testament to our American system of justice that even when the facts are brutal, we are still an intellectual and reasoned society which can draw lessons that ultimately protect us all. That said, Mr. Rippo seems to be loathsome).

Michael Rippo, a defendant of the crazy eyes and questionable facial hair variety, was convicted because a jury believed the then-district attorney’s theory that he used a stun gun to subdue and then rob and kill two young women at the Katie Arms apartments in Las Vegas in 1992. They were both bound and gagged and found by the coroner to have died from strangulation. Curiously, the coroner found no indication that a stun gun had been used on either of them. There was also no evidence of sexual assault, either, though it appears from the record that Rippo had previously been convicted of sexual assault and that fact ultimately came out at the trial.

That original trial was not without its complications. At one point, Rippo’s defense attorneys (including one named Steve Wolfson — yes, the same Steve Wolfson who is now the Clark County district attorney) moved to have the entire Clark County district attorney’s office removed from the case for interfering with the investigation. The judge, Gerard Bongiovanni, granted the motion in part by removing the specific prosecutors but let the DA’s office stay on the case.

A funny thing about Judge Bongiovanni:  During the trial he was the subject of a federal grand jury investigation for bribery that allegedly involved the very same Clark County District Attorney’s office. He was ultimately acquitted at some point after the trial was done. (Oh, Vegas! We love you and your “characters.”) A motion had been made by the defense to have the judge recuse himself from participation, which was promptly denied by that judge.

The jury found Mr. Rippo guilty and, in March 1996, he was sentenced to death and placed on death row where he has remained ever since. Years and many appeals on a number of grounds later, Judge Bongiovanni’s non-recusal remains a persistent complaint. A single Nevada Supreme Court justice determined that Mr. Rippo did not get the fair trial the Constitution requires on additional grounds. After that and the most recent round of requests for a reversal failed in 2016, the Nevada federal public defender’s office took a final shot with the United States Supreme Court. They argued that Nevada had been evaluating things using a wrong standard. SCOTUS agreed in what has been described as a sharply worded rebuke.  

And yet, with the case sent back over a year ago, Mr. Rippo still waits. In a technical string of events, the legal order is simply gathering dust up in Carson City while the case awaits directions in front of Judge Kathleen Delaney back down in Las Vegas. In fact, since the decision from SCOTUS, the litigants have met four times (the first in May, 2017; the most recent in February) in District Court only to kick the can a little further down the road in the hope that the Nevada Supreme Court will do something that instructs everyone how to proceed. The case is next in scheduled for the District Court on June 25, 2018.

The Nevada Supreme Court has no deadlines for ruling on pending matters

Simply stated, the Nevada Supreme Court can sit on any case for as long as it wants. Although cases can sometimes be delayed because of unique issues that are connected – and lawyers often find themselves requesting additional time to complete the record, file complex briefs or prepare for oral arguments – once a case is fully submitted, there is no formula or dictate for announcing a decision.

The priority of the high court’s decisions is a mystery to most, despite the antsy litigants hoping for finality on matters of money, policy and in a case like Rippo, life or death. Ostensibly, a large caseload in the Nevada Supreme Court has been an issue and one of the prime arguments for the creation of an intermediate Court of Appeals, which has been up and running since 2015.

But even with the Court of Appeals handling a large of number of appeals, there doesn’t seem to be much high court appetite for issuing quicker decision once a case has been fully submitted. Thankfully, this alacrity or lack thereof does seem to be an issue in the upcoming Nevada Supreme Court election – but then again, the judicial races tend not to get too much coverage primarily because the juicy issues of “how a judge would rule on Case X or Y” are prohibited because of judicial canons. But administrative issues are fair game in judicial races. “How do you prioritize or speed up decisions for the most important decisions once a case is fully submitted” would be a good question to ask an aspiring judge.

Michael Rippo is lingering on death row and the case is ripe for action. It really seems to be a shame on them situation. This case needs a ruling.

In the meanwhile, there’s virtually nothing the litigants can do except wait. There is no current trigger for a status check or an update from the Nevada Supreme Court. While commonplace in the lower courts, the higher court has traditionally been “above” that. But maybe putting this into the light may help this particular and indisputably important cause.

Nevada’s standard for the recusal of judges is bad

SCOTUS ruled as follows:

“The Nevada Supreme Court reasoned that… Rippo was not entitled to discovery or an evidentiary hearing because his allegations ‘did not support the assertion that the trial judge was actually biased in this case.’ 

We vacate the Nevada Supreme Court’s judgment because it applied the wrong legal standard. Under our precedents, the Due Process Clause may sometimes demand recusal even when a judge ‘has no actual bias.’ 

Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.’”

In other words, the Nevada Supreme Court – and by extension all courts in Nevada – has been applying an “actual bias” standard for basically, ever, when the correct standard is “a high probability of bias” even when actual bias may not exist. Stated another way, per SCOTUS, “as an objective matter, (is) the average judge in her position likely to be neutral, or is there an unconstitutional potential for bias?”

SCOTUS went on to tell our high court: “The Nevada Supreme Court did not ask the question our precedents require: whether, considering all the circumstances alleged, the risk of bias was too high to be constitutionally tolerable. As a result, we grant the petition for writ of certiorari … and we vacate the judgment below and remand the case for further proceedings not inconsistent with this opinion.”

More than a year has gone by with no “further proceedings.”

The recusal of a judge comes up in a lot of different contexts. In civil courts, the litigants get one shot each to remove a judge that might not be favorable using something called a peremptory challenge (for a small fee). This is without even needing a reason. Criminal litigants get no such opportunity. As it was, there was no recusal, and without a doubt, certain rulings – especially those that involved the DA – went against Mr. Rippo.

In Nevada, as it has long stood, a judge may disclose knowing certain witnesses, or even having some close involvement with groups or entities that have a vested interest in the outcome of a case, and still not self-recuse so long as it doesn’t impact “bias.” Without an appeal, that determination is left to the judge. And even when it’s appealed, well, Nevada has been applying the wrong standard.

Oh, and also:  Judges are elected and take campaign contributions. Long and valid has been the criticism of a system of elected judges in which election year money comes into the equation. It’s not outlandish to at least wonder how fair a shake a litigant can get when one side has significantly backed the judge in the last election and the other side didn’t give up any contributions (or worse, backed a challenger). They can deny it all day long, and they do, but judges know who their attorney “friends” are with remarkable precision. Not to say that judges are actually ruling in ways that favor their contributors (there would be no possible way to prove that outside of wiretaps or mind-reading), but is there not at least the possibility - or to use SCOTUS’s word, probability — that this goes on? And yet, apart from a little hand-wringing at the time of the next big story, nothing changes. 

And then there are even more subtle issues (insert sarcasm here). Like when a judge is found to have abused their discretion in a case by a higher court (but not in a manner causing a reversal) and then is also the presiding judge when the case comes back on subsequent appeals. Right now, that is the law in Nevada – the same judge who abused discretion (for whatever reasons) gets to stay on a case whenever that judge is still available. There are even more cases where a judge, for no apparent reason, acts so one-sided on the record to the benefit of one party that the litigants rightly feel that something else is afoot and vaguely suspect something needs to be disclosed.

In any event, there have been many, many requests for recusal denied in our courts based on what SCOTUS called “the wrong legal standard.” In Rippo, like all the others, this absolutely must be addressed — and now. In an already tenuous world of electeds applying judicial discretion, our system demands nothing less.

And speaking of recusals, according to the court records, the Clark County district attorney’s office remains on the case, predictably opposing any relief to Mr. Rippo. Given their involvement in the core issue (potential cooperation with or against the trial judge) and the weird fact that Rippo’s former lawyer is now the DA who controls that position, it seems recusals should be forthcoming all around.

Bias, actual or potential, has no place in Nevada courts. Our high court has had a year now to contemplate the mess — and as hard as it may be giving folks like Rippo some relief, the time has come.

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. He is a Nevada Arts Council Fellow in Literature and has written extensively about Las Vegas culture.