No. 84328 

FILED 

MAR 1 1 2022 

ELIZAREM A. 8ROW14 

CLERK OF suprzEmE COURT 

S 

DEPUTY CLERK 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

MICHAEL ALAN LEE, 

Petitioner, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA. 

IN AND FOR THE COUNTY OF 

CLARK; AND THE HONORABLE 

DAVID BARKER, 

Respondents, 

and 

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 

al? - 7 q30 

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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 

2 
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 

6,y6A, J. 

Cadish 

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). 

4 
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. 

Pickering 

J. 

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 

SUPREME COURT 

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NEVADA 

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(0) I947A AR91.