A federal appellate court has upheld a lower court ruling in the case of a Nevada inmate who was sent to death row for killing an FBI agent in 1990.
The July 25 opinion from the 9th U.S. Circuit Court of Appeals means that the inmate, Jose Echavarria, must be retried or set free.
Echavarria, now 57, was convicted of murder in Clark County District Court for fatally shooting FBI agent John Bailey in a Las Vegas bank.
In January 2015, U.S. District Judge Miranda Du found that Echavarria had received an unfair trial. She granted his petition for writ of habeas corpus, which would have resulted in his release if the Nevada attorney general’s office had not appealed.
Last week, a panel of three 9th Circuit judges affirmed Du’s decision. The panel found that Echavarria’s right to due process was violated because the trial judge, District Judge Jack Lehman, had been investigated for possible criminal prosecution by Bailey.
“An average judge in that position would have feared that rulings favoring Echavarria, tipping the outcome toward acquittal or a sentence less than death, could cost him his reputation, his judgeship, and possibly his liberty,” according to the 30-page opinion.
Echavarria’s lawyers argued that they learned after the trial that Bailey had investigated Lehman several years earlier over a questionable land deal when he was a member of the Colorado River Commission.
The state argued that there was no risk of bias because federal and state authorities previously had declined to prosecute Lehman.
“The question is whether an average judge in Judge Lehman’s position would have feared that the FBI might reopen its investigation or renew its advocacy for state prosecution if he made rulings favorable to Echavarria,” wrote Judge William Fletcher, who authored the panel’s opinion.
On Wednesday, Assistant Solicitor General Jeffrey Conner filed a court paper stating that the Nevada attorney general’s office anticipates taking the case to the U.S. Supreme Court.
If the 9th Circuit opinion is upheld, the Clark County district attorney’s office will have 60 days to file a notice of intent to retry Echavarria, or he will be released from custody.
According to last week’s ruling, the FBI met with prosecutors specifically to brief them on Bailey’s investigation and to prepare them for “in court and/or appeal motions based on due process.”
Chief Deputy District Attorney William Henry promised to “suggest a chambers meeting to discuss this with all counsel present.”
“But that meeting never took place, and Echavarria never had the opportunity to request that Judge Lehman recuse,” the opinion states.
At the time of the murder on June 25, 1990, Bailey happened to be in a Security Pacific Bank branch on FBI business when a man disguised as a woman — later identified as Echavarria — pulled a gun on a teller, according to court documents. Bailey scuffled with the robber and was fatally shot.
Echavarria was arrested in Juarez, Mexico, the next day and was returned to Las Vegas to face charges in Bailey’s death.
The local FBI building is now named for Bailey.
Lehman died last year.
Contact Briana Erickson at email@example.com or 702-387-5244. Follow @brianarerick on Twitter.