Nadia bashir phoenix

Eckstein , Christina C. Rubalcava , Phoenix, Attorneys for Petitioner. William G. See Ariz. Bashir contends the trial court erred because the prosecutor failed to communicate to the grand jury information concerning testimony and evidence she wished to present pursuant to Arizona Revised Statutes "A.

We find that the State had a duty to inform the grand jury of the subject and outline of Bashir's proposed evidence. Because the prosecutor did not do so, we conclude that the grand jury could not make an informed decision regarding whether to allow Bashir to appear and that the trial court should have granted the motion to remand.

Therefore, we grant the requested relief. He died three days later. The son was a special needs child with autism and cerebral palsy. It is undisputed that he could not swim. Bashir had left the boy at the shallow step of the pool with his feet dangling in the water while she went into the house to assist her older son to prepare for school. The parties dispute the details and timing of the next events, but at some point Bashir saw her son floating in the pool and pulled him out, had the older boy call , and began CPR.

Attached were numerous documents purporting to support the assertions in the letter. Subsequent emails specifically stated that Bashir would like to testify if the case was presented to a grand jury and requested that "the State present to the Grand Jury the exculpatory evidence contained in our December 15, letter.

After deliberations, the foreman informed the prosecutor that "[t]he majority of the people do not want to hear from the person that's accused of the crime. The trial court also denied that motion.

Sanders, Ariz. Because the issue raised here "presents a question of statewide importance that is likely to recur, the answer to which will provide guidance on the extent to which a prosecutor has a duty," we accept special action jurisdiction.

Davis, Ariz. That case addressed A. See Trebus, Ariz. The State notes that the role of a grand jury is to determine whether probable cause exists, and expanding its proceedings "beyond that point would put the grand juries in the business of holding mini-trials.

The State further argues that "the issue of what the prosecutor must do to comply with Rule Finally, the State argues Bashir's proposed evidence is not exculpatory, but more in the nature of a mitigation report. She points to this language in Trebus:. Bashir further argues that, because the prosecutor's duty to inform the grand jury of clearly exculpatory evidence already exists in every case, the State's position that it is only obligated to convey to the grand jury clearly exculpatory evidence renders the duty created in Trebus irrelevant.

Trebus clearly provides that the grand jury is given the choice to hear from a defendant, not the prosecutor. As the supreme court stated:. The court's holding built upon earlier language in a supreme court decision that the "rule, the statute, and the concept of an independent grand jury give the grand jury, not the prosecution, the right to make these determinations.

Superior Court Collins , Ariz. In Herrell v. Sargeant, Ariz. Although Herrell did not offer to personally appear before the grand jury, through counsel he requested that the grand jury be presented with evidence showing he was justified in using force to prevent harm to his daughter. The supreme court agreed this should have been done:.

See also Francis, Ariz. Although Herrell involved "unique facts" concerning a justification defense, we read it as recognizing that a grand jury's decision will often depend on being adequately informed of the circumstances surrounding an incident, including the defendant's version of events. See also Maretick v. Jarrett, Ariz. This was the situation in Trebus, in which the request was too vague to trigger any greater duty of the prosecutor.

Because of the request, the prosecutor must view the evidence with a wider view and consider whether a fair and impartial presentation requires informing the grand jury of the defendant's version of the facts as well as legal instructions concerning possible justification and affirmative defenses.

The prosecutor need not, however, present evidence that is not exculpatory, including evidence relating solely to "witness credibility and factual inconsistencies," which are ordinarily appropriate for trial. Trebus, Ariz. In the trial court in this case, the State argued that its presentation to the grand jury did take into account some of the facts Bashir alleged to be exculpatory. The defendant is not asking the prosecutor to present evidence to the grand jury. The defendant is seeking an opportunity to present evidence herself.

Consequently, the issue is not whether the proposed evidence is "clearly exculpatory" or "exculpatory. Trebus set the standard. When presenting the case to the grand jury, the prosecutor said only that Ms. Bashir had requested to testify, making no mention of the information contained in the ten-page letter.

After some discussion, the foreperson informed the prosecutor that the majority of jurors elected not to hear Ms. The grand jury then returned an indictment, charging Ms. Bashir with negligent homicide and negligent child abuse. Bashir filed a motion to remand arguing, among other things, that by failing to provide even a simple outline of Ms. Davis , Ariz. The trial court denied the motion, stating that Ms.

Bashir moved for reconsideration on the sole ground that the State failed to convey to the grand jury any information about her proposed testimony. The trial court denied this motion, as well. In Trebus v. Davis , id.