Echavarria v. Filson, Nos. 15-99001, 17-15560 (Fletcher with Berzon and Nguyen) --- The Ninth Circuit affirmed the grant of a habeas petition and a new trial filed by a Nevada death-row prisoner, holding that the fact that he was never told that the FBI agent he was convicted of killing had previously investigated criminal conduct by the judge who presided over his trial, at which he was accused of killing that FBI agent, created an intolerable risk of bias that violated his right to due process.　

In the summer of 1990, the petitioner attempted to rob a bank in Las Vegas where an FBI agent happened to be on other business. The agent foiled the robbery, but was killed in the process. The petitioner left the bank with a getaway driver. The driver was apprehended later that afternoon. The petitioner was caught in Juarez, Mexico, tortured by Mexican police, and then returned to Las Vegas to face the murder charges here. As it turned out, the agent had been involved in prior government corruption investigations relating to the Colorado River Commission. One of the members of the Commission was a Nevada state trial judge. The trial in the bank robbery case in which the agent was killed was assigned to the same trial judge whom the agent had previously investigated. Although no charges arose from the investigation, the judge did not recuse himself from the petitioner's trial. Although the driver's counsel knew about the connection between the agent and the judge before trial, nobody informed the petitoner's counsel until well after the trial was over and the petitioner had been sentenced to death.　

After the trial, the judge recused himself because he threatened the petitioner's counsel with bar discipline after counsel investigated potential juror misconduct by interviewing jurors. A different judge denied the petitioner's motion for a new trial, but the problematic judge entered the death judgment. The Nevada Supreme Court affirmed the conviction and sentence on direct appeal, rejecting a claim of judicial bias based on comments the judge made in the courtroom. The problematic trial judge also ruled on the petitioner's first state habeas petition. Once the petitioner received appointed federal counsel, he subpoenaed FBI records to obtain information about the agent's investigation of the problematic judge. He then returned to state court with two more rounds of state habeas proceedings, in which he aired his new information and claims of judicial bias. The state courts denied these new claims as "law of the case," seeing no difference between them and the claim he raised on direct appeal. Ultimately, the federal district court granted the petitioner a new trial on grounds of judicial bias stemming from the judge's failure to disclose the fact that the agent whom the petitioner had killed had previously investigated him as part of a government corruption probe.　

The state appealed the grant of relief to the Ninth Circuit, which affirmed. The invocation of the law-of-the-case doctrine in state habeas proceedings did not amount to an adjudication of the judicial bias claim on the merits for AEDPA purposes. On direct appeal, the petitioner was complaining about statements the judge made in the courtroom. He had no idea about the connection between the judge and the agent until he filed his second and third rounds of state habeas proceedings. At most, this was an adjudication of a claim of actual bias, not a claim that a reasonable observer would think that a judge was biased. The Nevada Supreme Court has historically failed to appreciate the difference between the two kinds of judicial bias, requiring correction from the U.S. Supreme Court. See Rippo v. Baker, 137 S. Ct. 905 (2017). Thus the federal district court correctly reviewed the petitioner's judicial bias claim relating to the undisclosed connection between the agent and the judge de novo. In light of the FBI's involvement in the petitioner's torture at the hands of Mexican police and their investigation into the judge's conduct that led to no charges being filed, a reasonable observer would perceive a risk that an average judge would be biased under those circumstances. The petitioner had been accused of killing the very FBI agent who had investigated the trial judge, and in order to try the case the judge had to resolve accusations relating to the FBI's involvement in the petitioner's torture by police in Mexico. The petitioner deserved a new trial.　

Congratulations to Assistant Federal Public Defenders Randolph Fiedler, Sylvia Irvin, and Mike Pescetta of Las Vegas.　

The decision is here:　

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/07/25/15-99001.pdf