Why didn’t judge recuse himself in the long ago trial of Jose Ecchavarria?

The man who killed Las Vegas FBI agent John Bailey may get a new trial more than 25 years after the fact. But not because he didn’t do it.

The evidence is clear that Jose Echavarria shot the agent three times during an attempted bank robbery on June 25, 1990. The 29-year-old dealer was disguised as a woman and dropped his wallet as he fled. Agents went to the apartment just six blocks away and found the disguise. His fingerprints were on two $100 bills dropped inside the bank. The evidence against him was overwhelming.

His roommate and getaway driver, Carlos Gurry, a 27-year-old laundry worker, was also arrested and convicted of charges, but not murder. He waited outside the bank and didn’t fire a weapon. Echavarria fled to Mexico, where he was arrested and returned to Las Vegas.

If ever there was an open-and-shut case, this was it. Echavarria received the death penalty. Gurry received life with the possibility of parole.

In death penalty cases, extensive appeals are routine, so Echavarria’s attorneys filed appeal after appeal on various legal issues. The Nevada Supreme Court denied them all, and in an appeal to the federal court, U.S. District Judge Miranda Du kicked all but one issue.

In January, Du issued a 57-page opinion concluding Echavarria had one valid point. He deserved a new trial because of the appearance of judicial bias. The judge who tried the case, District Judge Jack Lehman, should have told Echavarria and his attorneys that in 1986 and 1987, Lehman, then the chairman of the Colorado River Commission, had been investigated by the FBI on suspicion of serious fraud allegations involving land transactions. Lehman wasn’t charged, but he was investigated.

Echavarria claimed his constitutional rights to a fair trial were violated because Lehman had been biased. Du said that there was no proof of bias, but that it should have been disclosed by the judge so Echavarria could have asked for a new judge. “It was constitutionally intolerable for the trial judge to preside over the case,” Du wrote.

Here’s the ironic twist. Lehman did disclose it. Just not to Echavarria and his attorneys.

On Sept. 17, 1990, Lehman told Gurry’s defense attorney, David Wall, and prosecutor Bill Henry. No one objected to Lehman remaining on the case. The next month, there was a meeting between FBI officials and Clark County prosecutors to discuss it. A prosecutor said he would suggest a chambers meeting with all the parties to discuss the potential conflict.

But Echavarria’s attorneys Michael Stuhff and David Schieck said they were never told of the investigation or they would have asked for a new judge.

The U.S. 9th Circuit Court of Appeals will have to decide whether to uphold or reject Du’s ruling, and in all likelihood, it could end up before the U.S. Supreme Court.

Should Lehman have voluntarily recused himself from the case against shooter Echavarria and getaway driver Gurry?

In retrospect, absolutely.

Someone actually told Lehman’s wife he shouldn’t be hearing the case, which went to trial in 1991.

A new trial brings plenty of problems. After 25 years, witnesses are dead. Others are going to have trouble remembering. There’s a chance the man who murdered Bailey might walk.

I knew John Bailey. He was a funny, likable professional who in 21 years with the FBI, 13 in Las Vegas, worked on many cases I covered as the Review-Journal’s federal court reporter. I didn’t know his wife, Beth, or his two teenage daughters, 15 and 14 at the time of his death, but I considered him a friend.

When they named the Las Vegas FBI building after him following his murder, I was glad. Just now, pouring over old newspaper clips, the Las Vegas Sun’s color photo of him on a gurney being rushed to the hospital where he died made me tear up.

He was involved in high-profile cases, including the tax evasion case against federal Judge Harry Claiborne, the 1978 unsolved kidnapping case of 6-year-old Cary Sayegh, the 1978 case in which two men tried to bribe then Gaming Commission Chairman Harry Reid, the 1979 torching of the Chicken Ranch brothel, and the 1984 bank robbery in which he recovered $1 million of the $2.5 million stolen.

Bailey, 47, was in the wrong place and the wrong time. He was serving a subpoena for records for someone being investigated when Echavarria entered the bank in his clownish disguise and pulled a gun on a teller, who screamed and jumped back. The would-be bank robber changed his plan and tried to leave.

Bailey was a Vietnam veteran with two Bronze Stars and a marathon runner weighing about 155 pounds and standing 5 feet 9 inches tall. He tried to stop Echavarria. He identified himself as FBI and ordered him to halt. When Echavarria kept walking, Bailey fired a shot shattering the bank’s front door.

Du’s order described it this way: “Echavarria stopped. Bailey grabbed the gunman, held him against the wall, and ordered him to drop his gun, which Echavarria eventually did.”

Bailey asked someone to call the FBI and asked a bank employee to get his handcuffs from his car, seating Echavarria in a chair. When the handcuffs arrived, Du wrote, Echavarria jumped out of the chair and collided with Bailey. During the scuffle, Bailey fell and the gunman retrieved his own .38 revolver and shot the agent. Three times. In the right arm, the lower left chest and the fatal shot to the upper right chest.

Why didn’t Lehman realize there would be at least an appearance of bias on his part? We’ll never know. He’s in no condition to discuss it. He’s in fragile health and moved to California.

If his investigation by the FBI created an appearance of bias, why didn’t Henry or Wall, who later became a judge himself, see that as a problem? After all, he could have been biased in either direction, either for or against the FBI. He could have wanted to seek the FBI’s favor or he could have resented that investigation. The fact that neither the prosecutor or Gurry’s defense attorney saw it as a problem speaks volumes.

Du’s opinion has outraged the FBI, and Attorney General Adam Laxalt decided his office will appeal her ruling. The case is in the hands of defense attorney Michael Pescetta, a expert in death penalty cases, and Deputy Attorney General Jeffrey Conner.

The first trial lasted four weeks and is chronicled in the 2014 book by retired agent Gary Magnesen.

“FBI Agent Down” focuses on Bailey’s life and death, the investigation into his murder and the backgrounds of Echavarria and Gurry, both refugees from Castro’s Cuba, as well as the trial itself.

Now he’ll have to add an addendum, especially if Echavarria goes free.

If Echavarria walks, a tragic story becomes a horror story.

Jane Ann Morrison’s column appears Thursdays. Email her at jmorrison@reviewjournal.com or leave a message at 702-383-0275. Find her on Twitter @janeannmorrison

ad-high_impact_4
News
One of world's longest racetracks planned in Pahrump by 2020
The racetrack will be 16 miles long by the year 2020 according to Spring Mountain Motor Resort and Country Club owner John Morris. (Marcus Villagran/Las Vegas Review-Journal) @brokejournalist
Henderson police bodycam footage of officer-involved shooting
Henderson police released body-worn camera footage of an officer-involved shooting in a grocery store parking lot at 2667 Windmill Parkway on Aug. 12, 2018. (Henderson Police Department)
Robotics takes off at Las Vegas Academy
Las Vegas Academy’s robotics team made it all the way to the world competition last year, the first year the team competed. Zackary Perry describes how they programmed their robot to compete. The team is an example of what Tesla wants to have in every school in the state. (Meghin Delaney/Las Vegas Review-Journal)
Bicyclist suffers major head trauma in hit-and-run
A bicyclist was hospitalized with life-threatening injuries after a Thursday morning hit-and-run crash near the school formerly known as Agassi Prep. Police said the bicyclist was hit by a white SUV, which fled the scene. The injured man suffered multiple injuries including major head trauma. As of 9 a.m., Lake Mead remained closed between Martin Luther King and Revere Street while police investigate.
Las Vegas artist Dave Dave dies at 42
Dave Dave talks about his art and his life in 2016. (Michael Quine/Las Vegas Review-Journal)
Dave Dave, whose dad set him on fire in 1983, dies
Dave Dave, a respected Las Vegas artist who was badly scarred as a boy when his father tried to burn him to death in Southern California, died at Sunrise Hospital on July 15. He was 42. When he was 6, Dave's father tried to kill him by setting him on fire. He was given a sleeping pill and his bed at a Buena Park, California, motel was doused with kerosene. “I remembered being in a lot of pain,” Dave told the Review-Journal in 2016. “When stuff happens to you at that young of an age, you tend to block it out, but I remember the pain was excruciating.” Dave, who was born David Rothenberg, became close friends with Michael Jackson, who met him after the attack, which burned more than 90 percent of his body. “I wanted to meet him, and he wanted to meet me, and that just turned into a lifelong relationship that never ended,” Dave said. “It was amazing being friends with Michael Jackson. He was an amazing person.” Dave attended ArtCenter College of Design in Pasadena, California, and collaborated with various artists around Las Vegas, eventually selling his art to private collectors. Despite his challenges, he continued to live, thrive and create. Dave Dave
Homicide detectives investigate woman's death
Las Vegas police were called to Tahiti Village Resort early Wednesday after calls that someone had been shot. Police found a woman’s body between a parking garage and boiler room on the resort's property. A guest first reported hearing gunfire. There are no witnesses, but police will examine surveillance videos and look for clues. The woman was not identified, but a purse was found near the body. She did not appear to be a guest at the resort.
LVMPD Discusses Ross Dress for Less Shooting
LVMPD Assistant Sheriff Charles Hank discussed the 15th officer-involved shooting of the year at a press conference at Metro headquarters on Tuesday, Aug. 14. The active-shooter incident took place at the Ross Dress for Less store at the 4000 block Blue Diamond Road in the south Las Vegas Valley. (Madelyn Reese/ Las Vegas Review-Journal)
Metro Asst. Sheriff Brett Zimmerman on Aug. 8 officer-involved shooting
Metropolitan Police Department Assistant Sheriff Brett Zimmerman met with media Monday to discuss the details of the 14th officer-involved shooting of the year. (Madelyn Reese/ Las Vegas Review-Journal)
Clark County School Board president Deanna Wright on travel expenses
Clark County School Board President Deanna Wright says she followed proper expense protocol in trip to Florida last year.
Matt Kelly Elementary School hosted its third annual Back-to-School Red Carpet Program
Matt Kelly Elementary School hosted its third annual Back-to-School Red Carpet Program where community and business leaders joined to welcome students back with an inspirational welcome. Bizuayehu Tesfaye/Las Vegas Review-Journal @bizutesfaye
Shooting leaves 1 dead in southeast valley
A man was found fatally shot in the doorway of a squatter apartment after an argument ended in gunfire on Sunday night. Officers responded about 10:30 p.m. to the Silver Pines apartments and discovered the man in a breezeway in one of the buildings. The wounded man died at the scene, despite the efforts of another person, who tried to administer medical aid. Witnesses saw a man and a woman flee the scene, but were unable to give police a clear description.
North Las Vegas unveils new school crosswalk
North Las Vegas councilman Isaac Barron talks about the new school crosswalk in front of CP Squires Elementary School Monday, August 6, 2018. (Marcus Villagran/Las Vegas Review-Journal) @brokejournalist
LVMPD Briefing on OIS #13
Assistant Sheriff Tim Kelly held a press conference to discuss details of the 13th officer-involved-shoot for the department in 2018. Video shows the moments before the suspect was shot. The shooting, which has been edited out, occurred as the suspect lunged at an officer outside the apartment. (Madelyn Reese/Las Vegas Review-Journal)
Sedan and semitrailer collide in south Las Vegas
An early Wednesday morning crash has left one person in critical condition. A sedan and semitrailer collided around 4 a.m. at the corner of Spencer Street and Serene Avenue. Police do not believe impairment is a factor in the crash. Spencer has been blocked off north of Serene while police continue their investigation.
Cybersecurity Professionals Flock to Las Vegas for Black Hat
Black Hat USA, the largest annual cybersecurity conference, is expecting a record 17,000 attendees during its six-day run at the Mandalay Bay Convention Center this week. One thing attendees have in mind is making sure they don't get hacked while they're there. (Madelyn Reese/Las Vegas Review-Journal)
Police chase ends with suspects captured in east Las Vegas
An early Tuesday morning chase ended with a car crash in an east Las Vegas neighborhood. Police were pursuing the vehicle, which they say was involved in robberies in Las Vegas and North Las Vegas, when the driver crashed at Owens and Statz Street. A man was taken into custody. A woman was ejected from a vehicle and taken to a hospital with non-life threatening injuries. The intersection at Mojave Road and Owens Avenue was shut down while police officers searched for the suspect and investigated. The intersection will remain closed for most of the morning.
Record number participate in Touro University Nevada White Coat Ceremony
Three hundred sixty-five medical students received their white coats during the Touro University Nevada White Coat Ceremony at the M Resort in Henderson Monday. The ceremony was developed to honor students in osteopathic medicine, physician assistant studies, nursing, occupational therapy and physical therapy as they accept the professional responsibilities inherent in their relationship with patients. (K.M. Cannon/Las Vegas Review-Journal)
Stop for school buses, urges CCSD
Clark County School District Police Department hold a mock traffic stop at Centennial High School in Las Vegas, Monday, Aug. 6, 2018. (Marcus Villagran/Las Vegas Review-Journal) @brokejournalist
Work Begins at Las Vegas Community Healing Garden
Crews moved the wooden Remembrance Wall at the Las Vegas Community Healing Garden on South Casino Center Boulevard Monday. Construction on a permanent wall is set to begin within the week. (Madelyn Reese/Las Vegas Review-Journal) @MadelynGReese
Man wounded outside Cottages apartment
Las Vegas police don't have a motive after a man was shot early Monday morning outside a northwest valley apartment. The man's mother called police to say her son had been shot. She called police around 1:15 a.m. Other people were inside the apartment but no one else was injured. Police are still looking for the shooter.
Ride new Interstate 11 segment in one minute
Interstate 11 opens to the public Thursday, providing sweeping views of Lake Mead, art deco-style bridges and a mural illustrating the construction of Hoover Dam. (K.M. Cannon/Las Vegas Review-Journal)
Miss El Tiempo 2019
Miss Teen El Tiempo and Miss El Tiempo 2019 were crowned at Sam's Town Saturday, August 4, 2018. (Marcus Villagran/Las Vegas Review-Journal) @brokejournalist
Las Vegas Woman Raises Awareness for Anxiety and Depression
Cassi Davis was diagnosed with anxiety and depression after the birth of her second child. After seeking help and support, she felt that there wasn't enough for support for those living day in and day out for those with mood disorders. She created the Crush Run, set for Sept. 22, to raise money for the Anxiety and Depression Association of America and bring together a community of people who live with the same conditions she does. (Madelyn Reese/Las Vegas Review-Journal)
North Las Vegas marks the opening of Tropical Parkway connector
The City of North Las Vegas, Nevada Department of Transportation and other partners celebrated the opening of the Tropical Parkway connector to Interstate 15 and the Las Vegas Beltway. The stretch of road will make access easier for distribution centers for Amazon, Sephora and other companies moving into an 1,100-acre industrial area rising near the Las Vegas Motor Speedway. (K.M. Cannon/Las Vegas Review-Journal)
Bighorn sheep with West Temple in background at Zion National Park
A bighorn sheep walks through Zion National Park (National Park Service)
Adult Superstore location closes after 45 years
The Adult Superstore on Main Street has closed its doors for good after 45 years. The shop, which offered a multitude of adult toys, novelty items and movies, opened in 1973. Four other locations remain open. A note on the front door tells customers, “We can’t fully express our sorrow.” Adult Superstore was awarded Best of Las Vegas adult store by the Review-Journal in 2016 and 2017 .
Funeral held for Las Vegas corrections officer
Department of Public Safety Correctional Officer Kyle Eng died July 19 after a fight with an inmate at the Las Vegas Jail. A funeral was held for Eng at Canyon Ridge Christian Church Monday, July 30, 2018. (Marcus Villagran/Las Vegas Review-Journal) @brokejournalist
What Back-To-School Shopping Is Like For a CCSD Parent and Teacher
Laura LeBowsky, a CCSD special education teacher and mother of two, set out to shop for her children's supply lists at her local Walmart and Target. She was looking for deals to try to keep the total under $150, while also allowing Chloe, 8, and Brady, 6, some choice in what they wanted. (Madelyn Reese/ Las Vegas Review-Journal) @MadelynGReese
Businesses struggle to fill food manufacturing jobs
Chelten House is a family-owned food manufacturing company from New Jersey. They created a facility in Vegas five years ago and have struggled to find experienced workers in the area. (Marcus Villagran/Las Vegas Review-Journal)
TOP NEWS
News Headlines
ad-infeed_1
ads_infeed_2
Local Spotlight
Add Event
Home Front Page Footer Listing
Circular
You May Like

You May Like