Lee (Michael) v. Dist. Ct. (State) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL ALAN LEE, No. 84328
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA.
IN AND FOR THE COUNTY OF
FILED
CLARK; AND THE HONORABLE MAR 1 1 2022
DAVID BARKER,
ELIZAREM A. 8ROW14
Respondents, CLERK OF suprzEmE COURT
and S
DEPUTY CLERK
THE STATE OF NEVADA,
Real Party in Interest.
ORDER GRANTING IN PART PETITION FOR WRIT OF MANDAMUS
This original petition for a writ of mandamus and/or prohibition
challenges a district court order denying petitioner's motion to disqualify
the entire Clark County District Attorney's Office.
A writ of mandamus is available to compel the performance of
an act that the law requires as a duty arising from an office, trust, or station,
or to control a manifest abuse of or an arbitrary or capricious exercise of
discretion. NRS 34.160; State u. Eighth Judicial Dist. Court (Armstrong),
127 Nev, 927, 931, 267 P.3d 777, 779 (2011); Round Hill Gen. Imp. Dist. v.
Newman, 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981). A writ of
prohibition is available to restrain a district court's proceedings that "are
without or in excess of [its] jurisdiction." NRS 34.320. This court has
discretion in determining whether to entertain a petition for extraordinary
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relief. See Smith v. Eighth judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d
849, 851 (1991).
Petitioner Michael Lee alleged his defense trial strategy was
inadvertently disclosed to the prosecution and this disclosure created a
conflict of interest that required the disqualification of the entire district
attorney's office. The disclosure of the defense's trial strategy raises a
strong indication of a possible Sixth Amendment violation, the remedy for
which could be disqualification of some or all of the district attorney's office.
See Weatherford v. Bursev, 429 U.S. 545, 554 (1977) (suggesting a Sixth
Amendment violation is possible where the prosecution learns details of
defense trial preparations); United States v. Elbaz, 396 F. Supp. 3d 583, 595
(D. Maryland 2019) (reviewing prosecution's inadvertent access to em ails
containing privileged materials relating to defendant's trial strategy for
Sixth Amendment violation and finding no prejudice where the prosecutors
who were to conduct the trial had not learned of the contents of the emails);
State v. Svoboda, 180 N.E.3d 1277, 1295-96 (Ct. App. Ohio 2021)
(recognizing that prosecutor's interception of defense trial strategy
information could result in a Sixth Amendment violation, but finding no
violation because appointment of special prosecutor neutralized any
possible prejudice).
In its opposition to Lee's motion below, the State did not provide
affidavits from anyone in the district attorney's office who received the
privileged conimunication addressing (1) whether the office still had access
to the privileged communication; (2) who, if anyone, in the office accessed
the privileged communication; or (3) if anyone did access the privileged
communication, what, if any, use the person(s) rnade of the privileged
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communication.' Without this information, the district court could not
resolve whether a Sixth Amendment violation may have occurred. An
evidentiary hearing was necessary to resolve this issue. State v. Bain, 872
N.W.2d 777, 793 (Neb. 2016) ("[W]hen a court is presented with evidence
that the State has become privy to a defendant's confidential trial strategy,
it must sua sponte conduct an evidentiary hearing that requires the State
to prove that the disclosure did not prejudice the defendant, and it must
also give the defendant an opportunity to challenge the State's proof.").
Additionally, an evidentiary hearing would have assisted in resolving Lee's
assertion that a conflict exists that warrants disqualification of the entire
district attorney's office under State v. Eighth Judicial Dist. Court
(Zogheib), 130 Nev. 158, 321 P.3d 882 (2014).
Accordingly, we grant the petition in part and direct the clerk
of this court to issue a writ of mandamus instructing the district court to
vacate its order denying Lee's motion to disqualify the district attorney's
office and to, before trial, conduct an evidentiary hearing on the matter to
determine whether Lee was prejudiced by the inadvertent disclosure of his
defense trial strategy. If the district court finds that no one accessed the
confidential materials or no prejudice resulted, trial may proceed. If,
however, the district court finds that Lee was prejudiced by the disclosure,
the district court must, prior to trial, tailor a remedy to neutralize the Sixth
Amendment violation, which may include disqualification of the entire
'Although the State has provided this court with an affidavit in its
appendix to its response, the affidavit was not filed in the district court or
considered by the district court when it made its decision. We therefore did
not consider the affidavit when resolving this matter.
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district attorney's office or any individuals within the office. See U.S. u.
Morrison, 449 U.S. 361, 365 (1981).
It is so OR:DERED.
J.
Silver
Cadish
6,y6A, J.
PICKERING, J., dissenting:
The district court did not abuse its discretion in denying
petitioner's motion to disqualify the district attorney's office from this case.
After receiving the petition, this court requested and reviewed the
applications the district court clerk filed publicly, then sealed. They do not
reveal information or strategy not otherwise part of the existing record in
this case or that will not necessarily be revealed in the imminent pretrial
hearing on Merridee Moshier's competence to testify. And even if they did,
the district court clerk's public filing of them on Odyssey revealed their
contents to the decedent's aunt, who is a witness in the case and whom the
applications concern)
I Neither in district court nor in the petition to this court did the
defense request an evidentiary hearing. Whether this was a matter of
strategy or waiver, mandamus does not lie to compel one. cf. Jensen v.
Superior Court, 279 CaL Rptr, 3d 295, 300 (Ct. App. 2021) (holding a court
does not abuse its discretion by not granting relief that was not requested).
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This court does not superintend proceedings in district court by
writ relief absent a manifest abuse of discretion or clear legal error. Archon
Corp. v. Eighth Judicial Dist. Court, 133 Nev. 816, 819-20, 407 P.3d 702,
706 (2017). The petitioner, as the party seeking the extreme remedy of
disqualification, bore the burden of demonstrating that the prosecutor
and/or someone from that office viewed privileged or confidential
documents, see Merits Incentives, LLC v. Eighth Judicial Dist. Court, 127
Nev. 689, 699, 262 P.3d 720, 726-27 (2011), and that the conflict stemming
therefrom required disqualification of the entire prosecutor's office to
ensure petitioner receive a fair trial. State v. Eighth Jud. Dist. Ct.
(Zogheib), 130 Nev. 158, 165, 321 P.3d 882, 886 (2014), as modified (Apr. 1,
2014) (when one member of the prosecutor's office has a disqualifying
interest, "the appropriate inquiry is whether the conflict would render it
unlikely that the defendant would receive a fair trial unless the entire
prosecutor's office is disqualified f'rom prosecuting the case").
This petition does not meet those demanding standards. For
these reasons I would deny writ relief and respectfully dissent.
J.
Pickering
cc: Chief Judge, The Eighth Judicial District Court
Hon. David Barker, Senior judge
Nevada Defense Group
Attorney General/Carson City
Clark County District Attorney
Eighth District Court Clerk
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(0) I947A AR91.