Lane v. Second Judicial Dist., Washoe County

• Decision Date: 29 August 1988
• Docket Number: No. 18768,18768
• Parties: Mills LANE, District Attorney For Washoe County, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, The Honorable Robert L. Schouweiler, District Judge, and The Honorable Robin Wright, District Judge, Respondents.
• Court: Nevada Supreme Court

Page 1245

760 P.2d 1245

104 Nev. 427

Mills LANE, District Attorney For Washoe County, Petitioner, v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, The Honorable

Robert L. Schouweiler, District Judge, and The

Honorable Robin Wright, District Judge,

Respondents.

No. 18768.

Supreme Court of Nevada.

Aug. 29, 1988.

Mills Lane, Dist. Atty., and Gregory R. Shannon, Deputy Dist. Atty., Reno, for petitioner.

Robert L. Schouweiler, Dist. Judge, Second Judicial Dist. Court, Washoe County, Reno, for respondents.

OPINION

SPRINGER, Justice:

This original petition for a writ of prohibition challenges an order of the district court enjoining the Washoe County District Attorney from proceeding further with a criminal matter, and designating an investigator or so-called "special prosecutor" to evaluate the case for possible resubmission to the grand jury. On February 22, 1988, this court entered an order denying extraordinary relief, concluding that petitioner failed to demonstrate that the respondent district court acted arbitrarily or capriciously in the exercise of its discretion, or that it otherwise exceeded its jurisdiction. Petitioner has now petitioned for rehearing or reconsideration of our order, contending that this court overlooked two material matters and requesting further consideration of an argument previously raised. The petition for rehearing is opposed. Upon thorough review of the contentions of the parties, and of the record now before us, we conclude:

(1) The district attorney is inappropriately seeking to raise points never properly raised by his original petition to this court, and to reargue points fully considered in our original order;

(2) In any case, the district attorney is incorrect in his contention that he is vested with the sole right to control the processes of the grand jury, to the exclusion of District Court Judge Robert L. Schouweiler, who impaneled the grand jury, and to the exclusion of Chief Judge Robin A. Wright, who joined with Judge Schouweiler in entering the order challenged in these proceedings;

(3) The respondent judges' determination is well founded that complaints tendered to the district court by victims of alleged sexual assaults, and by two investigating officers of the Washoe County Sheriff's Department, warrant judicial inquiry, by virtue of the following:

(a) The record reflects without contradiction that the district attorney's deputy who presented the case to the grand jury did so in a manner that, as a natural consequence, precluded the grand jury from knowing about or considering the testimony of the investigatory officers;

(b) In presenting the case to the grand jury, the district attorney's deputy also depreciated the prosecution's case by multiple violations before the grand jury of Nevada's "rape shield law," NRS 50.090 and 48.069; and

(c) The district attorney's deputy depreciated and prejudiced the prosecution's case by the introduction of hearsay testimony which, as a natural and apparently intended consequence, diminished the credibility of the complaining witnesses.

Nonetheless, in our view, an inference does not inexorably follow that the district attorney himself, Mills Lane, was a blameworthy participant in the prosecutorial omissions mentioned above. Consequently, before the respondent judges took action to appoint a special investigator or "prosecutor" to collect further data in the district attorney's place and stead, we believe they should have accorded the district attorney notice and an opportunity to be heard concerning the prior failures of the prosecution and as to whether the district attorney's office will proceed properly with the case in the future. Although petitioner's claim that he did not receive proper notice has been raised belatedly, for the first time on rehearing, we have considered the matter in the interests of reaching a correct and speedy disposition. Accordingly, we grant rehearing and a writ of prohibition directing that the inquiry ordered below shall not proceed until a hearing on notice to the district attorney has been conducted before the district court, affording the district attorney an opportunity to be heard as aforesaid.

FACTS

In the early morning hours of February 22, 1986, two young women, referred to hereafter as Jane and Mary, visited Nye Hall, a coeducational dormitory on the campus of the University of Nevada at Reno (UNR). ¹ During that visit, four young men, three of whom were members of the UNR football team, allegedly engaged in nonconsensual sexual acts with the young women. Jane and Mary did not immediately complain to the police. Several days after the incident, however, Jane allegedly continued to experience pelvic pain. Both women then visited the hospital and were examined by physicians. The police were notified of the incident at this time. Washoe County Sheriff's Deputies Putnam and Jenkins assisted the university police in investigating the complaints of the two women. The officers took statements from the four suspects involved, administered certain tests, and recorded the results of these tests and interviews. As a result of their investigation, it appears that the officers obtained certain data, some of which they regarded as admissions or confessions. ²

Following their investigation, the officers felt that the evidence, including the confessions or admissions, justified charges against the men for sexual assault. The officers' supervisor agreed, and the evidence was submitted to the Washoe County District Attorney for presentation to the grand jury.

The deputy district attorney scheduled grand jury time for this presentation on two dates, March 26, 1986, and April 10, 1986, to accommodate all witnesses whose testimony he felt would be necessary to present. The proposed indictments of the suspects, however, listed only four witnesses--the complainants and two friends of the suspects. The investigating officers were not listed as witnesses, although they were subpoenaed to testify.

According to the grand jury transcript of March 26th, at the outset of the presentation of evidence, the deputy district attorney told the grand jurors, "[t]his is ... a rather unusual proceeding in that we anticipate a break ... and I think you will see why that break is necessary." He then presented to the grand jury the testimony of the two alleged victims, after which he requested that the grand jurors take a break. Following this break, the deputy district attorney called "Roe," a friend of the suspects, to testify. This "witness," a fellow member of the UNR football team, testified that he had spent the weekend in question out of town and that he had learned about the incident from others during the following week. He then indicated to the grand jurors his opinion, based on a conversation with Mary and their past relationship, that Mary had in fact consented to the sexual acts of which she later complained:

DEPUTY D.A.: After the police talked to you, [Mary] called you?

ROE: That night she called me saying ... she felt she owed me an explanation of what had happened. I told her she didn't owe me anything. And I did inquire about it, asked her "Why are you guys lying about this and trying to get ... all them in trouble?"

DEPUTY D.A.: What did she say?

ROE: She said it--I said "Why are you lying about and saying they raped you?" Was my direct statement. She said "They did not rape us. I feel they took advantage of us."

DEPUTY D.A.: "They took advantage of us?"

ROE: That is what she said.

DEPUTY D.A.: Did you have any other discussion with either [Jane] or [Mary] about this situation?

ROE: No, I have not.

DEPUTY D.A.: You haven't had any other meetings with [Mary] on any subject.

ROE: No. But when I asked her on the phone, I asked her "Why are you lying about this and trying to get them in trouble?" She wouldn't answer me. I felt, you know--

DEPUTY D.A.: That is when she said "They were taking advantage of us?"

ROE: Yeah. In my mind I felt that, you know, I knew there wasn't any wrongdoing.

DEPUTY D.A.: How did you know?

ROE: From--

DEPUTY D.A.: The way you feel?

ROE: My feelings there wasn't any wrong doings. From my past experiences with [Mary], I know how she is and I didn't want to further the conversation any.

Following this testimony, the deputy district attorney indicated to the grand jurors that no more time was scheduled on that day for their consideration of the case:

Mr. Foreman, looking at the schedule we have gone way beyond our allotted time. There are several other witnesses who have been subpoenaed to testify and I would leave it to the Grand Jury to decide whether you want to deliberate at this point in time to the conclusion of a no true bill or true bill or desire to hear those other witnesses who will be made available to you in two weeks.

The transcript indicates that the grand jury then met privately to consider whether to proceed. The deputy district attorney then stated for the record:

Before we proceed, Mr. Foreman, you asked the reporter and I [sic] to leave the room at the end of the last witness' testimony when we indicated we were pretty much out of time. You have since asked me to have Mr. [Doe] who was here present and ready to testify and you wish to continue with that with our investigation....

Accordingly, the deputy district attorney presented Mr. Doe, the last witness endorsed on the proposed indictment. Doe, a friend of the suspects, testified that he was in the suspects' dormitory room on the night in question, that the two complainants were apparently intoxicated, and that he left before the alleged incidents occurred when an argument ensued between Jane and one of the suspects. The deputy district attorney then permitted this witness to testify in response to the following questions of a grand juror concerning rumors Doe had heard about the complainants' reputations, and concerning Doe's belief that the women had consented to the...