SUPREME COURT OF THE UNITED STATES
MICHAEL DAMON RIPPO, PETITIONER
v.RENEE
BAKER, WARDEN
on petition for writ of certiorari to
thesupreme court of nevada
No. 16–6316. Decided March 6, 2017
Per Curiam.
A Nevada jury convicted petitioner Michael Damon
Rippo of first-degree murder and other offenses and sentenced him
to death. During his trial, Rippo received information that the
judge was the target of a federal bribery probe, and he surmised
that the Clark County District Attorney’s Office—which was
prosecuting him—was playing a role in that investigation. Rippo
moved for the judge’s disqualification under the Due Process Clause
of the Fourteenth Amendment, contending that a judge could not
impartially adjudicate a case in which one of the parties was
criminally investigating him. But the trial judge declined to
recuse himself, and (after that judge’s indictment on federal
charges) a different judge later denied Rippo’s motion for a new
trial. The Nevada Supreme Court affirmed on direct appeal,
reasoning in part that Rippo had not introduced evidence that state
authorities were involved in the federal investigation.
Rippo v.
State, 113 Nev. 1239, 1246–1250, 946
P. 2d 1017, 1023–1024 (1997) (
per curiam).
In a later application for state postconviction
relief, Rippo advanced his bias claim once more, this time pointing
to documents from the judge’s criminal trial indicating that the
district attorney’s office had participated in the investigation of
the trial judge. See,
e.g., App. to Pet. for Cert. 236–237,
397. The state postconviction court denied relief, and the Nevada
Supreme Court affirmed.
Rippo v.
State, 132 Nev. ___,
___, 368 P. 3d 729, 743–745 (2016). It likened Rippo’s claim
to the “camouflaging bias” theory that this Court discussed in
Bracy v.
Gramley, 520 U. S. 899 (1997) . The
Bracy petitioner argued that a judge who accepts bribes to
rule in favor of some defendants would seek to disguise that
favorable treatment by ruling
against defendants who did not
bribe him.
Id., at 905. We explained that despite the
“speculative” nature of that theory, the petitioner was entitled to
discovery because he had also alleged specific facts suggesting
that the judge may have colluded with defense counsel to rush the
petitioner’s case to trial. See
id., at 905–909. The Nevada
Supreme Court reasoned that, in contrast, Rippo was not entitled to
discovery or an evidentiary hearing because his allegations “d[id]
not support the assertion that the trial judge was actually biased
in this case.” 132 Nev., at ___, 368 P. 3d, at 744.[
1]
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 “ ‘ha[s] no actual bias.’ ”
Aetna Life Ins. Co. v.
Lavoie, 475 U. S. 813, 825 (1986) . Recusal is required
when, objectively speaking, “the probability of actual bias on the
part of the judge or decisionmaker is too high to be
constitutionally tolerable.”
Withrow v.
Larkin, 421
U. S. 35, 47 (1975) ; see
Williams v.
Pennsylvania, 579 U. S. ___, ___ (2016) (slip op., at
6) (“The Court asks not whether a judge harbors an actual,
subjective bias, but instead whether, as an objective matter, the
average judge in his position is likely to be neutral, or whether
there is an unconstitutional potential for bias” (internal
quotation marks omitted)). Our decision in
Bracy is not to
the contrary: Although we explained that the petitioner there
had pointed to facts suggesting actual, subjective bias, we
did not hold that a litigant must show as a matter of course that a
judge was “actually biased in [the litigant’s] case,” 132 Nev., at
___, 368 P. 3d, at 744—much less that he must do so when, as
here, he does not allege a theory of “camouflaging bias.” 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 the motion
for leave to proceed
in forma pauperis, and we vacate the
judgment below and remand the case for further proceedings not
inconsistent with this opinion.
It is so ordered.
