The Nevada Supreme Court denied relief based on a prosecutor’s alleged failure to provide exculpatory evidence to the grand jury

A grand jury indicted petitioner Anthony Mayo for the murder of his wife. Under NRS 172.145(2), the district attorney must provide the grand jury any evidence of which the district attorney is “aware” that “will explain away the charge.” Mayo seeks dismissal of his indictment based on the district attorney’s failure to present to the grand jury two notes from his deceased wife’s hospital chart. The notes’ exculpatory potential was not obvious and only emerged when placed in the context of internet research the defense conducted shortly before trial.

NRS 172.145(2) does not require the district attorney to sift through the evidence and conduct research to construct a defense for the accused. The record supports the district court’s finding that, although the district attorney had the hospital chart, he was not aware of the notes and their potential exculpatory value when he presented the case to the grand jury. As the district attorney did not violate NRS 172.145(2) by failing to submit known exculpatory evidence to the grand jury, we deny writ relief…

When a prosecutor has abused NRS 172.145(2) by withholding known exculpatory evidence and engaging in conduct that impairs the function of an independent and informed grand jury, the courts of this state have not stood silently by. E.g., State v. Babayan, 106 Nev. 155, 169-70, 787 P.2d 805, 816-17 (1990) (affirming order dismissing indictment without prejudice where the State failed to present to the grand jury substantial exculpatory evidence that the district court found was known to the district attorney’s office). This is not such a case. As the district court found, the district attorney did not know or have reason to know the references in the hospital notes to moyamoya disease had potential exculpatory value. The references to possible moyamoya disease appeared only twice in several hundred pages of hospital notes and, as the defense conceded in district court, the disease is obscure enough that defense counsel did not initially see the references as significant either. On this record, we decline to disturb the district court’s finding that no violation of NRS 172.145(2) occurred. If the references to moyamoya disease have significance, Mayo will have the opportunity to establish as much at trial. 

(Mike Frisch)