District of Nevada

Judge Cristina Silva – Nominee to the U.S. District Court for the District of Nevada

When President Trump nominated Jennifer Togliatti to the Nevada federal bench in 2019, she was expected to sail to confirmation. However, despite bipartisan support out of the Senate Judiciary Committee, Togliatti’s nomination stalled on the Senate floor as Majority Leader Mitch McConnell prioritized other nominees. With Togliatti left unconfirmed at the end of the Trump Administration, President Biden has now nominated Judge Cristina Silva to fill the vacancy.

Background

Cristina D. Silva graduated from Wellesley College in 2001 and from the Washington College of Law in 2007.

After graduation, Silva joined the Miami-Dade County State’s Attorney’s Office as a criminal prosecutor. In 2010, Silva moved to Nevada to become a federal prosecutor with the U.S. Attorney’s Office. In 2019, Gov. Steve Sisolack chose Silva to be a District Court with Nevada’s Eighth Judicial District, where she currently serves.

History of the Seat

Silva has been nominated for a seat on the U.S. District Court for the District of Nevada. This seat opened on June 29, 2018, when Judge James Mahan moved to senior status.

On October 16, 2019, President Trump announced the nomination of Jennifer Togliatti, a senior judge on Nevada’s Eighth Judicial Circuit, to fill the vacancy. While Togliatti received bipartisan support in being approved by the Senate Judiciary Committee, her nomination was never voted on the floor and the seat was left vacant at the end of the Administration.

On November 3, 2021, President Biden nominated Silva to fill the vacancy.

Legal Career

Silva spent her entire career before becoming a judge as a prosecutor: first working as a state prosecutor in Florida, and then as a federal prosecutor in Nevada.

Among the matters she handled as a prosecutor, Silva was part of the legal team prosecuting Caesars employees and guests participating in a scheme to illegally bet on the World Cup Soccer Tournament. See United States v. Wei Seng Phua, 100 F.Supp.3d 1040 (D. Nev. 2015). Among the various decisions in the prosecution, Judge Andrew Gordon suppressed evidence obtained by the government after they cut DSL service to a room and sent agents disguised as DSL employees to conduct a search. See id. at 1047. Judge Gordon found that any consent for the government agents was invalid and the result of deception. See id. at 1040.

Jurisprudence

Silva served as a trial court judge in Nevada since her appointment in 2019. Among the matters she handled as a trial court judge, Silva denied the postconviction habeas petition for Lee Reed, who was convicted in a proceeding where jury selection was conducted without swearing in the jury venire. See Reed v. State, 472 P.3d 192 (Nev. 2020). The Nevada Supreme Court affirmed the denial of relief, finding that Reed couldn’t demonstrate prejudice from his trial counsel’s failure to object. Id.

Among other matters, the Nevada Supreme Court overturned Silva’s ruling not to seal criminal records in a misdemeanor sexual offense case. See In re Tiffee, 485 P.3d 1249 (Nev. 2021). The Nevada Supreme Court also overruled Silva’s decision to allow victim impact statements from family, friends, and coworkers of the victims killed by a drunk driver, noting that she took too broad a view of a “victim” under Nevada law. See Aparicio v. State, 496 P.3d 592 (Nev. 2021).

Overall Assessment

While Togliatti’s bid to fill this judgeship stalled, Silva’s looks more likely to be successful. While she is still likely to draw a sizable contingent of opposition, there is little in Silva’s background that is likely to be be fatal to confirmation and nominees who have served as prosecutors have generally attracted less controversy in general. As such, barring the unexpected, Silva will likely be confirmed early next year.

36 CommentsLeave a comment

Anne Rachel Traum – Nominee to the U.S. District Court for the District of Nevada

Anne Rachel Traum, a law professor with the University of Nevada, was nominated for a federal judgeship in the waning days of the Obama Administration but was never confirmed. Traum now has a second chance to join the U.S. District Court for the District of Nevada.

Background

Anne Rachel Traum was born in 1969 in Redwood City, California. Traum graduated from Brown University in 1991 and from the University of California Hastings College of Law in 1996.

After graduation, Traum clerked for Judge Stanwood Duval on the U.S. District Court for the Eastern District of Louisiana and then joined the Environment and Natural Resources Division of the U.S. Department of Justice. Traum then spent two years as a federal prosecutor before becoming a public defender in Las Vegas. Since 2008, Traum has worked as a law professor with the University of Nevada Las Vegas William S. Boyd School of Law.

History of the Seat

Traum has been nominated for a seat on the U.S. District Court for the District of Nevada. This seat opened on February 1, 2016, when Judge Robert Clive Jones moved to senior status.

On April 28, 2016, Traum had been nominated by President Barack Obama to replace Jones, but her nomination was never considered by the Senate Judiciary Committee and was not confirmed before the end of the Obama Presidency. Throughout his Presidency, Trump never nominated a judge to replace Jones and the seat remains vacant to this day.

Legal Career

Traum started her legal career at the Department of Justice, where she worked on issues of Indian and environmental law, as well as a detail with the U.S. Attorney’s Office in Nevada, where she worked in the civil division on both affirmative and defensive cases. Additionally, from 2002 to 2008, Traum worked as a federal public defender, and has worked as a law professor since 2008. Throughout her career, Traum has tried one criminal jury trial and one habeas bench trial.

Among the notable cases she handled, Traum represented a defendant serving a 52-year sentence on a habeas petition. See Mitchell v. State, 149 P.3d 33 (Nev. 2006). Traum was able to obtain a vacatur of Mitchell’s conviction for attempted murder and his release from prison, arguing that a conviction for attempted murder required proof of a specific intent to kill. See id.

Writings

As a law professor, Traum has written multiple papers on criminal law and procedure. In particular, Traum has been fairly critical of the Supreme Court’s narrowing of Confrontation Clause protections in Ohio v. Clark, which allowed evidence of a 3-year-old’s testimony to be introduced against a defendant. See, e.g., Anne Traum, Confrontation after Ohio v. Clark, Nevada Lawyer, Oct. 1, 2015. Traum has noted that the Clark decision could eliminate a defendant’s confrontation rights in a variety of cases.

In another paper, Traum advocated that judges should consider the systemic impact of mass incarceration in making individual sentencing determinations. See Anne R. Traum, Mass Incarceration at Sentencing, 64 Hastings L.J. 423 (2013). In doing so, Traum argues that judges can mitigate the effects of mass incarceration.

Overall Assessment

While Traum’s last nomination to a federal judgeship was unsuccessful, put forward under a Democratic Senate, Traum is likely to be confirmed early next year barring unexpected developments. Any opposition to her opposition will likely point to her academic writings in arguing that Traum has been unduly critical of the criminal justice system and Supreme Court jurisprudence.

26 CommentsLeave a comment

Judge Jennifer Togliatti – Nominee to the U.S. District Court for the District of Nevada

Jennifer Togliatti, who retired as a state court judge last year, is President Trump’s first nominee to the U.S. District Court in Nevada.

Background

Jennifer Paige Togliatti was born in 1967 in Waterbury, CT.  Togliatti graduated from the University of Nevada in 1989 and from California Western School of Law in 1993.[1]

After graduation, Togliatti joined the Clark County District Attorney’s Office as a criminal prosecutor.[2]  In 1999, she became a Justice of the Peace in Las Vegas Township.  In 2002, Gov. Kenny Guinn chose Togliatti to be a District Court with Nevada’s Eighth Judicial District.[3]  Togliatti stayed at that position until 2019 when she retired to become a private mediator.

History of the Seat

Togliatti has been nominated for a seat on the U.S. District Court for the District of Nevada.  This seat opened on June 29, 2018, when Judge James Mahan moved to senior status.  

In April 2019, Togliatti was approached about the judgeship by U.S. Sen. Catherine Cortez-Masto.[4]  Togliatti was then recommended, alongside other candidates by Cortez-Masto and Sen. Jacky Rosen.[5]  Togliatti interviewed with the White House Counsel’s Office in July 2019.[6]  President Trump announced Togliatti’s nomination on October 16, 2019.

Legal Career

While Togliatti has spent most of her legal career as a judge, she did have five years of experience as a state prosecutor before she joined the bench.  Her experience in this role was purely criminal and included prosecuting both misdemeanor and felony cases in Nevada state courts.

In addition, since 2019, Togliatti has been working as a mediator in private practice.  In this role, Togliatti notably was tasked with determining the damage disbursements to plaintiffs injured from the 2017 mass shooting in the Las Vegas strip.[7]

Jurisprudence

Togliatti served as a trial court judge in Nevada between 2002 and 2019, in which role, she presided over approximately 8500 cases.[8]  Two of her most notable cases are outlined below.

Death Penalty

Most notably, Togliatti reviewed the execution protocol for Scott Dozier, the first inmate scheduled to be executed in 11 years in Nevada.[9]  In an unusual posture, federal defenders challenged the execution protocol as cruel and painful, while Dozier pushed for the execution to be carried out.[10]  After multiple hearings, Togliatti blocked the use of Nevada’s three drug protocol, citing concerns about the use of cisatracurium, a paralytic drug included in the cocktail.[11]  However, Togliatti’s decision was overruled by the Nevada Supreme Court.[12]  In a sad epilogue, Dozier died by his own hand before his execution.[13]

Discrimination in Prosecutions

In 2000, as a Justice of the Peace, Togliatti reviewed a challenge to Clark County policies criminalizing prostitution and solicitation, which were alleged to discriminate against women by allowing male offenders to complete classes for dismissal but not allowing the same option for women.[14]  Togliatti rejected the challenge, finding that the policy did not discriminate based on gender, but rather differentiated between “buyers” and “sellers” in the prostitution industry.[15]  Togliatti’s ruling was ultimately upheld by the Nevada Supreme Court.[16]  However, the Court also criticized Togliatti for involving other judges in a “collective” decision to authorize continued prosecution, finding the process “flawed.”[17]

Overall Assessment

With twenty years of judicial experience, Togliatti would  not have a learning curve to develop a judicial persona.  Additionally, nominated with the support of the Administration and Nevada’s Democratic senators, Togliatti would likely secure a bipartisan majority for confirmation.  However, Togliatti may draw attention from her decisions in the Dozier case and the prostitution challenge, both of which were criticized by the Nevada Supreme Court.  As such, Togliatti may see some negative votes from those cases.

[1] See Sen. Comm. on the Judiciary, 116th Cong., Jennifer Togliatti: Questionnaire for Judicial Nominees 1.

[2] Id. at 2.

[3] Id.

[4] Id. at 40.

[5] Nigel Jaquiss, Oregon Senators on a Collision Course with White House Over Openings on Federal Courts, Willamette Week, Feb. 12, 2018, https://www.wweek.com/news/2018/02/12/oregons-senators-on-a-collision-course-with-white-house-over-openings-on-federal-courts/.

[6] See Togliatti, supra n. 1 at 26.

[7] Marco Della Cava, Victims to Split $800M: What’s Their Pain Worth?, USA Today, Feb. 11, 2020.

[8] See Togliatti, supra n. 1 at 11.

[9] Ken Ritter, Death Row Inmate Says No Concerns About Painful Execution, A.P. State & Local, Aug. 17, 2017.

[10] See id.

[11] Danielle Haynes, Nevada Delays Execution of Murderer Who Opposes Method, UPI, Nov. 9, 2017.

[12] See Ken Ritter, Nevada Court OKs Execution, Rejects Challenges on Procedure.  See also Nevada Dep’t of Corr. v. Eighth Judicial Dist. Ct. of the State of Nevada, 417 P.3d 1117 (Nev. 2018).

[13] Daniel Uria, Nevada Death Row Inmate Scott Dozier Found Dead From Apparent Suicide, UPI, Jan. 6, 2019.

[14] A.P., County Prosecutorial Bias Alleged in Solicitation Cases, A.P. State & Local Wire, Oct. 5, 2000.

[15] See A.P., Las Vegas Judges OK Trials for Prostitutes While Johns Get Diversion, A.P. State & Local Wire, Dec. 28, 2000.

[16] See Salaiscooper v. Eighth Judicial District Court of the State of Nevada, 34 P.3d 509 (Nev. 2001).

[17] Brendan Riley, Nevada Supreme Court OKs Vegas Prostitution Prosecutions, A.P. State & Local Wire, Nov. 15, 2001.

1 CommentLeave a comment