Robert L. Ellman, who was the appellate chief for the United States Attorney for Nevada, replaces David Cole, the state’s solicitor general from March 2011 until Jan. 18.
Under a new structure for the state Attorney General’s Office, Ellman will have the additional duties of overseeing capital litigation and criminal appeals. The solicitor general has traditionally represented the state in civil matters on appeal, Open Law Meetings law litigation and Clean Elections.
This will be Ellman’s second stint at the Attorney General’s Office, having been a unit chief for capital litigation from 2000 to 2005. He sat as second-chair in Ring v. Arizona, a landmark U.S. Supreme Court case that held that juries instead of judges must make the findings to determine a death sentence. Department of Homeland Security Secretary Janet Napolitano argued and lost the 2002 case when she was the Arizona attorney general.
“I have extensive oral advocacy experience, but not with the U.S. Supreme Court,” Ellman said. “I’ve argued many cases in the 9th Circuit and the Arizona Supreme Court.”
Ellman convinced the Arizona Supreme Court that Ring was not retroactive, which kept dozens of older death-penalty cases from having to return to trial court for a new sentencing before a jury.
Attorney General spokeswoman Stephanie Grisham said Ellman brings with him a 95 percent success rate at the 9th Circuit Court of Appeals in 2011 and 2012 while with the U.S. Attorney for Nevada.
In one of those cases, however, the appellate court Chief Judge Alex Kozinski wrote a long rebuke of Ellman, accusing him of trying to “pull a fast one” on the court. The other two judges on the panel disagreed with Kozinski’s assessment.
Ellman said he would never try to mislead a court.
“A lot of attorneys have had difficult experiences with the chief judge up there,” Ellman said.
Cole said he left his job to return to teach at Phoenix School of Law, a private law school where he taught from 2007 until 2011. Cole also applied for a vacant seat on the Arizona Supreme Court last year.
Cole said his departure wasn’t in reaction to the FBI investigation into Attorney General Tom Horne’s alleged violation of campaign laws. In the last year, two of Horne’s key aides, spokeswoman Amy Rezzonico and Criminal Division chief James Keppel, both left the office in the aftermath of the investigation.
“I missed the teaching,” Cole said.