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Ninth Circuit Holds Undisclosed Relationship Between Murdered FBI Agent and Presiding Judge in Capital Case Created Intolerable Risk of Judicial Bias, Warranting Habeas Relief

by David Reutter

The U.S. Court of Appeals for the Ninth Circuit held that an undisclosed connection between an FBI agent and a judge entitled a death row prisoner to the grant of habeas corpus relief. The Court found there was a constitutionally intolerable risk of judicial bias.

Jose Echavarria attempted to rob a Las Vegas bank on June 25, 1990. In the bank on unrelated business was FBI agent John Bailey. When Echavarria attempted to rob the teller, she screamed, causing Echavarria to abandon the robbery. Bailey drew his gun, identified himself as an FBI agent, and ordered Echavarria to stop. Echavarria continued walking, and Bailey fired a shot that shattered the glass of the front door. Echavarria complied with an order to drop his gun. Before Bailey could get handcuffs on Echavarria after a frisk search, he was knocked to the ground by Echavarria, who retrieved his gun and shot Bailey three times.

Echavarria was subsequently apprehended in Juarez, Mexico. He was convicted of capital murder and sentenced to death. Prior to Echavarria’s trial, it was disclosed to his co-defendant Carlos Gurry, who served as the get-away driver, that Bailey had previously investigated the judge who was presiding over the two cases for possible criminal prosecution. Nevada District Judge Jack Lehman was investigated in 1986 by Bailey for corruption, fraud, and perjury in relation to low cost housing land being sold while Lehman was chairman of the Colorado River Commission.

Lehman held a conference in Gurry’s case during which the bias issue was discussed, but neither party asked Lehman to recuse himself. It was determined that a conference would be held to include Echavarria’s counsel, but no such conference was held nor was Echavarria’s counsel provided information of the potential conflict. 

On appeal, Echavarria asserted an actual judicial bias claim based on “comments by the court [that] went far beyond legal admonishments on points of law and took the form of enraged rebukes of counsel.” Echavarria did not yet know of any connection between Bailey and Lehman.

After that appeal and a state habeas petition was denied, Echavarria filed a federal habeas petition and was appointed counsel, who obtained permission to investigate the connection between Bailey and Lehman. 

The federal habeas was stayed to allow the state courts to consider two state habeas petitions that raised the bias issue. Once those petitions were denied, the federal district court reviewed the matter and granted habeas relief. The court found there was an intolerable risk of judicial bias that “might lead” the “average man as a judge” to be biased. The State of Nevada appealed. 

The Ninth Circuit noted that the Due Process Clause does not require proof of actual judicial bias. The test requires only a showing of an undue risk of bias, based on psychological temptations affecting an average judge. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (1975). In deciding whether there was possible influence, the question is whether the case “would offer a possible temptation to the average … judge to … lead him to hold the balance nice, clear and true.” Aetna Life Insurance. Co. v. Lavoie, 475 U.S. 813 (1986). Under that principle, due process “may sometimes require recusal of judges who have no actual bias and who would do their very best to weigh the scales of justice equally.” Hurles v. Ryan, 752 F.3d 768 (9th Cir. 2014). 

The Ninth Circuit found that Judge Lehman was well aware of the FBI’s efforts to ensure Echavarria’s conviction. “The average judge in his position would have understood the risk entailed in making rulings favorable to Echavarria,” the Court wrote in finding error. A realistic appraisal of psychological tendencies and human weaknesses led to an appearance that Judge Lehman “would have feared that the FBI might reopen its investigation or renew its advocacy for state prosecution if he made rulings favorable to Echavarria.” As a result, “the risk of bias was extraordinary in both its nature and severity,” the Court found. The Court concluded that the risk of bias “deprived Echavarria of the fair tribunal to which he was constitutionally entitled.”

Accordingly, the Ninth Circuit affirmed the district court’s grant of habeas relief. See: Echavarria v. Filson, 896 F.3d 1118 (9th Cir. 2018). 


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Echavarria v. Filson



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