WINNEMUCCA — The attorney for a local man facing drug charges has filed a motion with the court requesting Judge Michael Montero disqualify himself from the case over allegations of bias.

Montero denied the motion and the matter of whether or not bias exists may have to be decided by another judge.

Robert Hager is the attorney for Ramiro Gutierrez, who is charged with two counts of drug trafficking level III. If convicted, Gutierrez faces two life sentences with the possibility of parole after ten years has been served on each count.

In the motion, Hager said Montero – the drug court judge --  should disqualify himself for bias because of his close working relationship with the substitute drug-court judge – who’s too close to the case for the defense’s comfort.

HISTORY:  Gutierrez was arrested more than a year ago on a warrant obtained by TRIDENT (Tri-County Drug Enforcement Team) charging he twice sold methamphetamine to a confidential informant (CI).

Hager has alleged all along the state contrived the controlled-buys that busted the defendant so that Gutierrez would be arrested but not his girlfriend whose father works within the criminal justice system.

The girlfriend’s name is being withheld because she’s not charged in this case.  

Going to the record, Hager notes the girlfriend was the person who negotiated with the CI. The girlfriend negotiated the amount of drugs, the price, the location where the buy would occur, and the time the buy would occur, Hager notes.  In addition,  the investigation and controlled-buys occurred at the girlfriend's house.

But Gutierrez was the only person arrested and charged with trafficking in drugs.

THE CASE:  Hager argues the government is taking every action to protect the girlfriend "from the consequences of her criminal behavior" because her father works within the criminal justice system, which includes a position as the substitute drug-court judge for Judge Montero.

But the relationships actually go deeper because Gutierrez and his girlfriend have a child together – so the substitute judge is the grandfather of Gutierrez’s child.  Hager questions whether the father is using the criminal justice system to rid himself of Gutierrez.

As to evidence of this bias, Hager argues he's been unable to get evidence for review, which may lead to the defendant's acquittal (called exculpatory evidence) because those in the court system will not turn it over.

At question is a probable cause statement given by TRIDENT investigators to the Justice of the Peace Gene Wambolt, and referenced by the judge in the warrant, wherein the allegation is made of ongoing drug activity at the girlfriend's house. Hager points to this as a further example of bias within the system that seeks to protect the substitute drug-court judge's daughter.

BIAS:  While there can be little question the substitute drug-court judge is directly related to the parties, the actual presiding judge notes his relationship to the parties does not rise up to the legal definition of bias.

Going to the NRS statutes, Montero notes implied bias exists when the judge is a party to/or has an interest in the action, or is related to either of the parties.

None of these circumstances applies to the case at hand, Montero noted.

The matter remains undecided. SPJ will post additional information as it becomes available.   Previous posts on this topic:

Attorney attempts to have case dismissed; claims conduct of investigators outrageous

Defense attorney continues to dispute open access to evidence