An Arizona murder case that the Supreme Court has had before it at every one of its twenty-one private Conferences so far this Term, but with no action on it yet, is almost certain to be strung out further.  The case of Ryan v. Hurles — twice decided before in the U.S. Court of Appeals for the Ninth Circuit — produced another ruling by that tribunal on Friday.  Each time, the prior ruling has been reissued in revised form.

With the release of the new decision, the Ninth Circuit’s January 18, 2013, ruling that the Supreme Court has been studying has now been replaced, and there is a strong chance that the state of Arizona will now try to get even the new ruling reconsidered, thus prolonging the uncertainty.

In the Supreme Court, Arizona officials have tried to persuade the Court to hear their claim that the Ninth Circuit failed to show sufficient respect to a state trial judge’s ruling — upheld by state courts — that she was not biased against Richard D. Hurles of Phoenix and thus there had been no need for her to withdraw herself from trying his case and from imposing a death sentence.

The case is quite complicated, and the Supreme Court’s only response so far has been to call for the full record of what had happened in the state courts and in a long-running legal battle in federal courts.   With the case getting such frequent attention from the Supreme Court but without any final action yet, it has been assumed that the Justices were preparing to overturn the Ninth Circuit summarily — that is, without full briefing and argument.  The case was scheduled to be considered again at last Thursday’s Conference; orders from that session are due out Monday at 9:30 a.m.

The case before the Court focuses upon a Maricopa County Superior Court judge, Ruth H. Hilliard of Phoenix.  She presided over several aspects of the Hurles case, including a pretrial issue as well as the trial and sentencing.  Hurles was convicted of the 1992 stabbing of a library employee in the small town of Buckeye, Arizona, and is now on death row.

In the Ninth Circuit’s latest ruling, again splitting it two to one, the panel repeated its earlier mandate that a federal district judge must hold a hearing to gather evidence on Hurles’s claim that Judge Hilliard was biased against him.  She presided over the proceeding when her right to go forward with the case was challenged, and she ruled that she was not biased.

This time, the Ninth Circuit majority went further, adding a new legal issue for the district court judge, dealing with the performance of Hurles’s defense attorney at the appeals stage of his state case.  The issue is whether he was entitled to have a brain scan that could show damage that would add to his insanity claim — the only defense he had at the trial.

The Ninth Circuit panel opted to withdraw the ruling that the Supreme Court is now focused on, because in the meantime Hurles had moved to take advantage of a more recent Supreme Court ruling – Martinez v. Ryan — in 2012.  That decision gave convicted individuals an expanded right, in habeas cases, to challenge the effectiveness of their defense lawyers.

Hurles sought to apply that ruling to the appeals level, arguing that his defense lawyer did not perform properly because he failed to pursue a court order authorizing a neurological test to help support his claim that he suffered from brain damage that was a factor in his conduct.  That claim is based on the Supreme Court’s 1985 decision in Ake v. Oklahoma, giving individuals in criminal trials who are too poor to hire their own psychiatrist a right to have the state provide such a specialist to help support an insanity defense.

That, of course, is a new issue in the case, and it is not before the Justices in Arizona’s pending case.  That case focuses solely on the Ninth Circuit’s order for a new evidentiary hearing on his judicial bias claim against Judge Hilliard.

As in its prior handling of the Hurles case, the substituted opinion was written by Circuit Judge Dorothy W. Nelson and supported by Circuit Judge Harry Pregerson.  Dissenting, again, was Circuit Judge Sandra S. Ikuta.

In her dissent, Judge Ikuta took note of the Supreme Court’s repeated examination of this case this Term and commented that this new opinion will further delay the Supreme Court’s consideration of the majority’s “error” repeated in the new opinion.

Judge Ikuta commented: “A reasonable person may wonder why the majority has reissued this opinion for the third time, almost four years after the case was submitted on October 7, 2010, particularly when doing so will vacate a prior version of the opinion which has been the subject of a cert petition pending before the Supreme Court for nearly a year.”

Arizona officials filed their petition in the Supreme Court last June 17, and it was first scheduled for the Justices’ pre-Term Conference in September.  It has been distributed to the Justices for every Conference since then.

Posted in Ryan v. Hurles, Featured

Recommended Citation: Lyle Denniston, Ryan v. Hurles saga gets a new chapter, SCOTUSblog (May. 17, 2014, 12:00 PM), http://www.scotusblog.com/2014/05/the-ryan-v-hurles-saga-gets-longer/