Getting to know Ada County Judge Steven Hippler

I took a look at the record and background of the new judge assigned to preside over State v. Bryan Kohberger after the venue change was granted

Was anybody more surprised than me that Judge Judge actually granted Bryan Kohberger’s motion to change venue? Even though venue changes seem to be approved with some regularity in Idaho, I still did not expect the ruling - I thought that Judge Judge would bend over backwards to find that the community who elected him could be fair and impartial in order to keep ownership of the case in the county where it originated. But since he ruled in favor of the change and opted not to follow the case to its new venue in Ada County, we now - all of a sudden - have a new judge to get to know and prepare for, and so far we’ve only had one ministerial hearing to evaluate. What can we ascertain about how Judge Steven Hippler will handle the case?

Judge Hippler has a low public profile but isn’t a novice to high profile cases.

Generally, I consider it a good sign when it’s hard to find a lot of information about a judge because it means the judge has not sought out attention or attracted drama. Choosing a judge for a high-profile case is a lot like Socrates’s observation about political leaders in the Republic - those who want the job are those least qualified to it, and those most qualified are least likely to seek it out. Because the temptation to play to the media can distort the judge’s decision-making, a judge who avoids the limelight is probably going to make fewer mistakes

Judge Hippler does not show signs of having sought out fame or attention to himself, whether in his elections, his career, or his personal interests. There doesn’t appear to be any election drama in his history. He doesn’t maintain social media and when he is in the news, it’s mostly local and related to his judicial activities. That doesn’t mean he’s inexperienced with high-profile cases, though - during the Lori Vallow trial, likely in his capacity as administrative judge, he played a role in communicating with the press about the jury selection process, as reported by the Idaho Statesman.

Judge Hippler also presided over a public records lawsuit against the former Lieutenant Governor of Idaho, Janice McGeachin, in which he didn’t shy away from making findings of bad faith and imposing attorney fees and costs:

These experiences suggest to me that Judge Hippler understands and will be prepared for the intense scrutiny he will face in the position. That said, a risk of an attention-averse judge is the inclination to keep parts of the process out of the public eye, and he has already signaled his receptivity to ex parte and sealed communications about the case. His public record on transparency being generally positive, I’m curious to see how well principle holds out when it’s his own decisions under the microscope.

Judge Hippler has the kind of record that is likely to minimize error but give the State the benefit of the doubt.

Although his own professional background focused on medical malpractice defense, Judge Hippler has presided over felony criminal cases for about a decade as a judge and from his appellate record, his decisions do not appear to be controversial. Despite being on the bench for more than a decade, few of Judge Hippler’s rulings have produced published appellate decisions and I found only two reversals out of more than 100 rulings, once in a civil matter involving whether a health organization constituted a tax-exempt charity and once in denying a motion to suppress

This is good from the standpoint of not making mistakes that could result in having to redo the trial. It’s not so good from the standpoint of a commitment to substantive fairness. Most of Judge Hippler’s appeals appear to be pro forma challenges to sentences imposed, decisions in which the judge has significant discretion. He has multiple affirmed rulings denying relief on procedural grounds. For example, in State v. Alba, an unpublished decision from 2016, the defendant claimed that his public defender was not filing certain motions in his case and hired a private attorney to do so. However, the deadline for filing the motions had passed and Judge Hippler declined to extend the deadline for the new attorney. This decision, which resulted in a defendant being unable to raise a potential constitutional challenge to a search, was upheld.

In another case, Smith v. State, the defendant sought to amend his post-conviction petition and claimed that his appointed attorney had abandoned him. Judge Hippler dismissed the defendant’s own pro se motions for relief because he was represented by counsel and did not follow the correct procedures to represent himself. Likewise, this decision was also upheld.

Although Judge Hippler has never presided over a death penalty trial, he did consider a petition for post-conviction relief in a death penalty case and denied all of the bases alleged in Hall v. State. This decision was upheld.

I also note that Judge Hippler has never had a decision appealed by the State, and he has several decisions that suggest to me his biases favor the prosecution. In one case, he denied a motion to suppress when three non-party defense witnesses testified that the witness’s taillight was not broken and one police officer testified that it was, finding the three defense witnesses not credible and the police officer credible. The single criminal case in which his ruling was reversed is particularly troubling to me, as it evinces a willingness to excuse law enforcement misbehavior. In State v. Crotto, a 2016 decision, Judge Hippler denied a motion to suppress in which the police employed admittedly “sharp investigative tactics” to induce a mentally disabled man to consent to a search of his home. The Court of Appeals found that Judge Hippler’s finding that the man never asked police to leave was clearly erroneous when the man told the officers multiple times that he did not want them in his house.

On the other hand, Judge Hippler doesn’t appear to be happy solely functioning as a cog in an incarceration machine. He spoke out against mandatory minimum drug sentencing in 2018, describing how he had “sleepless nights” after he had to impose a prison sentence in a particular case, because such sentences fail to consider circumstances unique to that individual. Thus, despite what appear to be pro law enforcement tendencies, Judge Hippler is not blind to the humanity of the defendants who appear before him and appears to recognize that criminal justice is imperfect - indicators of humility that will hopefully temper his perspective on the case.

My first impression - I’m cautiously optimistic.

Since the issue of venue first began to be discussed, I’ve argued that the risk of losing Judge Judge was a reason I would hesitate to seek a change - there are a lot of worse judges who could end up on the case. Fortunately, the change does not seem to be a major setback for the defense. Although I would certainly not categorize him as a particularly defense-friendly judge, and I don’t expect him to bend over backward to exercise his discretion in Bryan Kohberger’s favor, he nevertheless appears both prepared for the demands of the role and reasonably attuned to the appellate climate that will review him. As a result, his decisions are unlikely to be unpredictable and his courtroom management is unlikely to be provocative - by all appearances, Judge Hippler does not want the story of this case to be about him, and this gives me hope that he will veer towards the middle path with his rulings.

Another positive sign for me is that many of Judge Hippler’s cases have involved what I would characterize as difficult clients - for example, Williams v. State, in which the defendant alleged that every attorney involved in the case had been ineffective, including the attorney he refused to meet with to review his paperwork, resulting in the dismissal of his petition. These highly disagreeable Darrell Brooks-type personalities are fairly commonplace in the criminal system and stand in stark contrast to the cooperativeness and rapport with his team that seem to be demonstrated by Bryan Kohberger so far. I have no doubt that Judge Hippler will notice that Bryan is not behaving like typical antisocial troublemakers do in court.

At the same time, I do not like the early receptiveness to closing off the process from the public eye. The decisions both to evaluate Bryan’s request to wear street clothing in pretrial hearings in a closed session and to consider ex parte information from the defense about the necessity of extending expert disclosure deadlines due to the death of a defense witness result in shielding important decisions about the handling of the case from public inspection. It would be very unfortunate to establish an early habit of controlling the flow of information to the public by making decisions based on information communicated behind the scenes as public confidence in those decisions requires the ability to evaluate why they were made.

Overall, I’m optimistic that Judge Hippler will handle the case fairly and well. With multiple defense motions pending, we should soon get our first look at his reasoning and how he manages contested proceedings in his courtroom. Based on what we’ve seen so far, I expect respectful consideration of Bryan’s positions and clear decisions that are likely to stand up to appellate review, and ultimately, it’s hard to ask for a lot more in a judge handling a case of this significance.