Appeal from a judgment of conviction, pursuant to a jury verdict, of 11 counts of lewdness with a child, 15 counts of sexual assault of a child under 14 years of age, 2 counts of first-degree kidnapping, 1 count of second-degree kidnapping, 3 counts of battery with intent to commit a crime, 3 counts of using a minor in the production of pornography, and 22 counts of possession of child pornography. Eighth Judicial District Court, Clark County; James M. Bixler, Judge.
Philip J. Kohn, Public Defender, and Sharon G. Dickinson, Deputy Public Defender, Clark County, for Appellant.
Catherine Cortez Masto, Attorney General, Carson City; Steven B. Wolfson, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Parker P. Brooks, Deputy District Attorney, Clark County, for Respondent.
Hardesty, J. We concur: Gibbons, C.J., Pickering, J., Parraguirre, J., Douglas, J., Cherry, J., Saitta, J.
BEFORE THE COURT EN BANC.
Appellant Shafiq Ahmed Afzali asserts that the district court violated his constitutional rights by obstructing his ability to challenge the racial composition of the three grand juries that indicted him. Prior to his trial, Afzali requested information that would identify the racial composition of the three separate grand juries that indicted him, and the 100-person venires from which the grand jurors were selected. The district court denied him the requested information.
Afzali argues that he had the right to challenge the grand jury selection process under either the Equal Protection or the Due Process Clauses of the United States Constitution, but that he was unable to determine whether he had a viable challenge to the racial composition of the three grand juries that indicted him because the court failed to provide the information requested.
We conclude that Afzali has a right to the information he requested. Without this information, Afzali's ability to show a potential violation of his constitutional right to a grand jury drawn from a fair cross-section of the community is limited. Therefore, we conclude that a limited remand is necessary for the district court to conduct further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
In July 2007, Afzali was charged by indictment with 17 felony counts regarding crimes of a sexual nature against 3 children. He
was then charged by a superseding indictment with 42 felony counts regarding crimes of a sexual nature based on his acts against the 3 child victims and the 25 images of child pornography he possessed. He was later charged by a final second superseding indictment with 63 felony counts regarding crimes of a sexual nature.
In October 2007, Afzali filed a motion requesting information on the selection process for the grand jury, the racial composition of the three grand juries that indicted him, and the racial composition of the entire 100-person venires from which those grand jurors were chosen. He stated that his request was being made to evaluate whether he had grounds to bring an equal protection or due process challenge to the make-up of the three grand juries or the grand jury selection process.
The district court held two hearings on the motion. During the first hearing, Afzali's counsel stated that she was concerned about the grand jury selection process and the ethnic background of the grand jury. The district court explained that it had no such information, but would inquire of the then-sitting chief judge about the procedure for obtaining the information Afzali was requesting. During the second hearing, the district court provided Afzali with information on the grand jury selection process; however, it explained that race information did not exist. It also explained that the records ...