dissenting:
Mindful that this is a death case, I dissent to the majority’s denial of Hogan’s motion to disqualify Justice Rose, who Hogan claims is prejudiced against him. I dissent also to the majority’s denial of Hogan’s request to be provided with certain presently-concealed documents relating to his case.
JUSTICE ROSE’S DECIDING HIS OWN DISQUALIFICATION CHALLENGE
Strangely, Justice Rose has signed and participated in the majority opinion even though it is Justice Rose’s own qualification to sit in this case that is the subject of Hogan’s motion. Hogan claims that Justice Rose is disqualified to sit in his case because Justice Rose has been subject to undue influence by certain prosecutorial officials. Hogan asserts that he will be able to establish a firm factual basis for his claim if he is permitted to have access to certain secret documents and other information that has been “sealed” in district court files by Judge Nancy Becker.
Justice Rose has recently been insisting upon playing a part in decisions in which his own impartiality is being questioned. (See, for example, Snyder v. Viani, 112 Nev. 568, 916 P.2d 170 (1996); Allum v. Valley Bank, 112 Nev. 591, 915 P.2d 895 *563(1996); Martin v. Beck, 112 Nev. 595, 915 P.2d 898 (1996)).1 To my way of thinking it is clearly impermissible for Justice Rose to sit in judgment of himself in these matters.
HOGAN’S REQUEST FOR SECRET DOCUMENTS
The second reason that I dissent is that the court has before it in this case, sworn testimony submitted in support of Hogan’s request for certain disclosures of concealed facts, facts which, for the most part, have been hidden from this court as well as from Hogan. A number of issues in this case rest upon the nature of the sought-after facts; and, certainly, this court is in no position to rule on Hogan’s renewed motion to disqualify Justice Rose until it has gained access to and has examined the critical information that is presently being denied to Hogan and denied to this court.
Death-sentenced Michael Ray Hogan asks this court to enter an order “requiring disclosure” of certain information relating to those who sit in judgment of his life. I can think of no reason why the requested disclosure of sealed judicial materials should not be made, especially in a death case.
The attorney general vigorously opposes the disclosure of the information sought by Hogan and stridently argues that Hogan’s request for information “impugns” her ethics and the “ethics of this court.” One would think that the ethics of this court and of the attorney general would be enhanced rather than impugned by granting Hogan’s request for full disclosure of the readily-available but “sealed” information that Hogan wishes to examine. It is my belief that Hogan is entitled to all facts that might have any relevancy to the impartiality of jurists who have “had anything to do with this case.” As Hogan points out in his motion, the Judicial Code of Conduct, Canon 3(E)(1), makes it clear that a jurist should not sit on a criminal case if the prosecu-torial agencies of the state have put the jurist in a compromised or vulnerable position by reasons of favors done for the jurist by the prosecutorial apparatus. That this is a problem in the present case is more than just a possibility.
*564During the course of proceedings in this court, Hogan has expressed two concerns that give me some pause. First, he expresses his concern about certain unlawful practices that have admittedly been carried out by the Nevada Commission on Judicial Discipline. It is now clearly established that the Discipline Commission has for some time been conducting secret sessions out of which have emanated a number of unlawfully secret discipline decrees. Among these secret decrees have been orders placing judges on secret probation to the attorney general.2 Although our order in the Whitehead3 case preventing the attorney general from any further participation in judicial discipline cases precludes any future probationary control over judges by the attorney general, the practice of judicial probation was clearly going on during the time that criminal proceedings were pending against Hogan. Hogan certainly is entitled to know if any of the jurists in his case were subject to probationary supervision under the attorney general while they were deciding matters relating to his case.
It seems to me that judges who were under coercive supervision by the attorney general should not be sitting on criminal cases, at least while they were actually probationers. Hogan has asked that any probationary judge or justice who has had any decision-making power in his case be required to disclose this fact to him. This seems like a reasonable request to me. I would require all such jurists to make, on the record, not only a full disclosure of the nature of their secret probation but also a disclosure of any favorable consideration of any kind that might have been given to such jurists by the attorney general during the time that the attorney general was acting as both counsel and probation officer for the Judicial Discipline Commission.
Hogan’s second concern is about the favors that he claims have been done for Justice Rose by the attorney general and the district attorney of Clark County. All of the members of this court have been made aware of the attempts by Hogan’s counsel to secure secret documents relating to the questioned relationships between Justice Rose and Hogan’s prosecutors. Justice Rose, himself, tells us (in his Response, filed with this court on February 7, 1994) that “[i]n the instant matter, the Clark County District Attorney found that Chief Justice Rose had committed *565no criminal acts,4 and the Attorney General concurred in that conclusion.” Justice Rose went on in the mentioned “Response” to announce that he became aware of the pending *566criminal charges against him “less than two weeks prior to the Attorney General’s decision” not to pursue the criminal charges against him. We also learned from Justice Rose’s Response that the attorney general’s nolle prosequi decision “confirmed” a comparable decision by the Clark County District Attorney that the criminal charges against Justice Rose constituted a “‘no merit’ case.”
In a letter directed both to the attorney general and to the Clark County District Attorney, Hogan’s counsel demanded a disclosure of information relating to the criminal charges against Justice Rose that were in the hands of these mentioned prosecu-torial officials. Hogan legitimately seeks out the “existence of a conflict of interest” which he claims arises out of what he sees as favoritism on the part of prosecuting officials who refused to prosecute Justice Rose. After pointing out that there was “no conceivable danger to law enforcement personnel” or other reason to withhold facts relating to the Rose criminal investigation, Hogan’s counsel made written demands upon both the attorney general and the Clark County District Attorney that they provide him with “copies of all information, including tape recordings, transcripts of tape recordings, investigative reports, and any and all other documents relating to the investigations of a justice of the Supreme Court in the matter identified by the state at Metro DR# 930625-1024.” The demand was refused or ignored by the attorney general and the district attorney.
In letters to the mentioned prosecutors, Hogan’s counsel correctly pointed out that the State’s investigation of a justice of this court, during a time that criminal proceedings were pending in this court against Hogan, necessarily relate to “material which the state, through all of its prosecution agencies, has an obligation to disclose to opposing counsel.” Hogan’s counsel also correctly pointed out that “[tjhere can be no rational dispute that the pendency of a criminal investigation of a jurist by counsel for the state raises a conflict of interest with respect to cases in which the state is a party.” (Citing In Interest of McFall, 556 A.2d 1370 (Pa. Super. 1989), aff’d, 617 A.2d 707 (Pa. 1992)). Counsel also *567cited Supreme Court Rule 179 which relates to the prosecution’s duty to disclose specified information to defense counsel.
One reason (other than the refusal of the attorney general and district attorney) that Hogan’s counsel had been and is presently unable to obtain the requested information is because of an order sealing the court files relating to the subject criminal investigation of Justice Rose. The order sealing these public records was signed by Judge Nancy Becker of the Clark County District Court. In my opinion, Hogan is entitled to these documents whether they are delivered by Judge Becker, the attorney general or the Clark County District Attorney. Until this information is made available to Hogan and his attorney, it is impossible for him to make adequate preparation for his intended pursuit of motions relative to the qualifications of Justice Rose to sit on his case.
In his opposition to a previous motion to disqualify Justice Rose, filed by Hogan in this case, Justice Rose resisted disqualification by pointing out that “Hogan’s motion to disqualify Chief Justice Rose is generally deficient because it presents no facts” that established bias on the part of Justice Rose. This may have been true at the time Justice Rose wrote these words, but the reason that it was true at the time Hogan first filed his motion to disqualify Justice Rose was because the facts relating to possible favored treatment given to Justice Rose by the attorney general and the district attorney were being improperly withheld by the very persons who had at their disposal the pertinent information, namely, Hogan’s prosecutors.
There is another matter, well known to the members of this court, that should persuade this court to permit Hogan to explore further the scope of possible prejudicial bias on the part of Justice Rose. I refer to the facts surrounding the mysterious “withdrawal” of Hogan’s motion to disqualify Justice Rose.
The gist of Hogan’s motion (the one that was “withdrawn”) was his allegation that the State was holding something over Justice Rose’s head that prevented him from acting fairly and impartially in criminal prosecutions in general and in Hogan’s prosecution in particular. As put by Hogan, in his motion, there was a “conflict presented by the State’s possession of information potentially damaging to Justice [Rose], and by the decision of relevant prosecutorial agencies to decline to prosecute.” Startlingly, only three days after Hogan’s defense counsel filed the mentioned motion to disqualify Justice Rose, defense counsel’s employer (Nevada Appellate and Postconviction Project) filed a motion with this court to withdraw the motion to disqualify Justice Rose which had been filed by Hogan’s personal attorney. Hogan’s defense attorney was an employee of the mentioned Nevada Appellate and Postconviction Project.
*568The vice-president of defense counsel’s employer (the Nevada Appellate and Postconviction Project, which attempted to withdraw Hogan’s motion to disqualify Justice Rose) was one Thomas Pitaro. Mr. Pitaro was Justice Rose’s personal attorney. Neither Mr. Pitaro nor the Project was able successfully to have the motion to disqualify Justice Rose withdrawn and the motion was eventually ruled on and denied on the paradoxical ground that Hogan was unable to support his motion with the factual material that was being denied to him by the attorney general, the Clark County District Attorney and Judge Becker.
That Hogan’s counsel would be subject to interference with his attorney-client relationship, by his counsel’s employer, in a death case is a matter of serious concern to me as it well should be to the other members of the court. All of the foregoing information appears by affidavit in the file of this matter and appears to have been totally ignored by the court.
In my opinion, the court should order that Judge Becker’s order sealing the public files be vacated, that all of the information requested by Hogan’s counsel be delivered to him and that the full extent of the interference with Hogan’s attorney-client relationship by Justice Rose’s attorney, Thomas Pitaro, and the managing officials of counsel’s employer (the Nevada Appellate and Postconviction Project) should be brought to light and considered by this court. After this information has been made available to Hogan and to this court, Hogan should be permitted to bring an amended or supplemental motion to disqualify Justice Rose, and this motion should be heard in due course by this court.
Perhaps the most extravagant example of Justice Rose’s deciding matters relating to his own qualification is found in Nevada Attorney General v. Steffen, et al., Docket No. 27847, a pending case in which the attorney general has petitioned for a writ of prohibition which would prohibit the court in the Whitehead case, 111 Nev. 70, 893 P.2d 866 (1995), from proceeding in that case (that is to “stay all actions” of the majority justices in that case). Justice Rose has, of course, disqualified himself in the Whitehead case; still, he has voted in Case No. 27847 (even though he is disqualified to act in matters relating to the Whitehead case) to deny challenges to his own qualifications and voted to disqualify Justices Zenoff, Steffen and Springer, the majority justices in Whitehead.
It was only through a fortuitous array of circumstances that this court learned of the unlawful practice by the Discipline Commission of placing judges on secret probation under the control of the attorney general.
Whitehead v. Comm’n on Jud. Discipline 110 Nev. 874, 878 P.2d 913 (1994).
Justice Rose cannot accurately claim that prosecutors “found that Chief Justice Rose had committed no criminal acts.” No prosecutorial authority has ever ruled that Justice Rose has not committed any criminal acts. The attorney general, saying that it was “questionable whether the matter submitted [by the district attorney] was within the jurisdiction of this office,” nevertheless “agreed with [the] analysis” of the district attorney concerning “alleged violations of NRS 199.520 (disclosure of information to subject of investigation) and NRS 199.540 (notification of interception of wire or oral communication).” The district attorney had ruled that NRS 199.540 was “inapplicable” to the evidence uncovered in the police investigation and that “the evidence does not support a violation of NRS 199.520.” The district attorney decided not to prosecute the “alleged violations”; and the attorney general agreed. This is not the same as saying that Justice Rose had “committed no criminal acts.”
Hogan’s concern here is not whether Justice Rose committed any criminal acts; rather, his only concern is whether the mentioned prosecutors’ refusal to prosecute Justice Rose gives rise to the possibility that the district attorney and the attorney general might be able to exert some influence over Justice Rose. Prosecutorial influence over Justice Rose, according to Hogan, might have arisen out of the prosecutors’ refusal to prosecute Justice Rose on charges of obstructing a criminal investigation or out of the “threat, or potential threat, of prosecution [that is] universally recognized as a potent factor affecting an individual’s impartiality.” Hogan points out that the possibility of criminal violations other than those relating to obstructing a criminal investigation is “quite real,” citing as examples, “NRS 197.100 (influencing public officer); NRS 197.110(2) (misconduct of public officer); NRS 197.190 (obstructing public officer)” and other related criminal statutes. Other possible threats of prosecution might be seen under NRS 199.480(3)(f) (conspiracy to commit an act injurious to or a corruption of public justice or the due administration of law).
The gist of Hogan’s moving papers is that possible favors done for Justice Rose and potential threats of further prosecution hanging over Justice Rose have placed Justice Rose in a position of conflict with respect to Hogan’s conviction and death sentence. Hogan bases his assertions on factual allegations that he claims to be able to establish if he is allowed to examine the secret and “sealed” court documents and other materials relating to police investigations and charges relating to Justice Rose. Hogan claims that Justice Rose had certain telephone conversations with his business associate and former law clerk, Rhonda Mushkin, which were intercepted by police detectives. Hogan claims that Ms. Mushkin asked Justice Rose to help her “in dealing with the pending criminal proceedings” against her and that, in response to this request, Justice Rose agreed to pay a “visit” to the district attorney. According to Hogan, Justice Rose then “discussed ... the pending criminal prosecution of Rhonda Mushkin” with the district attorney. It is reported that then Chief Justice Rose said to the district attorney, “They [Ms. Mushkin and her co-defendant] would like to see it go away or diverted out of the system or something, and I would love that too.”
Simply put, Hogan’s position is that the district attorney’s and attorney general’s refusal to prosecute charges of obstruction of a criminal investigation (disclosure of information relating to investigation and notification of *566interception of wire communication) and the threat of possible prosecution under NRS Chapters 197 and 199 have compromised Justice Rose in such a way as to disqualify him from sitting in judgment on Hogan’s death case. Hogan complains that “the primary sources of information with respect to [Justice Rose’s] conflict are entirely unavailable” to him and that the State “has access to the records of investigation of the Chief Justice, [but] has not disclosed the existence of the investigation or its subject” to Hogan. It seems to me that Hogan is entitled, at least, to be provided with the “primary sources of information” which are contained in the court documents sealed by Judge Becker.