Nevada Has An Innovative Idea For How To Right Wrongful Convictions

POSTED ON APRIL 2, 2015 AT 8:00 AM UPDATED: APRIL 1, 2015 AT 4:41 PM

Nevada Has An Innovative Idea For How To Right Wrongful Convictions

The Nevada State Prison, where Nolan Klein spent more than two decades on what he maintained was a wrongful conviction.

The Nevada State Prison, where Nolan Klein spent more than two decades on what he maintained was a wrongful conviction.

CREDIT: AP PHOTO/SANDRA CHEREB

Nolan Klein spent the last 21 years of his life in prison on a life sentence that he never stopped fighting.

Klein claimed a witness misidentified him in a photo lineup and he had nothing to do with the 1988 robbery and sexual assault that occurred in a Payless shoe store in Sparks, Nevada. His sister has continued advocating for his innocence, even after his death.

Courts have denied him a posthumous exoneration, but lawmakers in Nevada introduced legislation with bipartisan support last week which would have helped Klein fight his wrongful conviction and could grant an exoneration after his death, his sister, Tonja Brown, told ThinkProgress. The bill, AB 401, would make Nevada the second state in the nation to allow the creation of separate courts that would re-examine possible wrongful convictions.

“If this bill existed, Nolan Klein and others like him could have their cases heard,” said Brown, who also wrote about her story in an exhibit attached to AB 401. “It would allow all evidence that was not presented at trial that may have been hidden from the defense, newly discovered evidence that was overlooked, DNA evidence to be tested and witnesses that were never investigated.”

To date, there have been 329 people exonerated by DNA testing in the United States, with the average exoneree serving 14 years in prison. Since 2003, prisoners in Nevada can petition the court for DNA testing, but creating a separate court would allow judges to examine all of the available evidence and other information that may have been withheld in the original trial that convicted an innocent person.

The jury in Klein’s case was only shown around 20 exhibits — a small portion of the evidence that was available to the defense counsel, Brown said. If courts of special inquiry had existed at the time, they would have been able to examine all of the available evidence including exculpatory evidence which would have cleared him of the crime, she said.

Brown has become an advocate for her brother even after his death. She filed a wrongful death suit alleging the prison did not treat her brother for a medical condition that caused his death. She also maintains a website and helped to write a book about his case. But she said this legislation would be a necessary step to help wrongfully convicted inmates like her brother who have run out of legal options.

“AB 401 would give those individuals fighting for their innocence the chance at their freedom,” she said. “And for those who have passed away, the chance for exoneration through a posthumous pardon.”

In 2011, attorneys filed a petition for posthumous exoneration on Klein’s behalf but the Nevada Supreme Court denied the request and said that issuing orders like that is beyond the court’s jurisdiction. “It is for the legislature to create a cause of action or remedy and provide for an appeal,” the court wrote.

So Brown took the issue to the legislature and worked with Assemblyman Harvey Munford (D) to draft the bill, which is also co-signed by Republican Assemblyman John Moore.

“[Brown] has worked very long and hard to exonerate her brother and that is where much of the genesis of the courts of exoneration came from,” said Judy Molnar, who works for Rep. Munford. “The courts of inquiry really were a possible avenue for her to seek justice for her brother and for other inmates as well.”

In addition to allow districting courts to create special courts of inquiry to look into wrongful convictions, the bill would also create a study to look into effective ways to release and rehabilitate former inmates.

Texas is currently the only state that allows district judges to set up courts of inquiry when they believe state laws have been broken, including in cases of potential wrongful convictions. Munford and attorneys with the state legislature looked to Texas as model when they drafted AB 401, Molnar said.

In Texas, defendants and their attorneys can seek courts of inquiry when they think there is corruption or conflicts of interest in the normal courts that would hear their cases. Michael Morton was exonerated in 2011 after DNA testing proved that he did not murder his wife more than two decades earlier. After he was cleared, his attorneys asked a court of inquiry to determine whether the prosecutor withheld evidence that could have cleared him at trial. In 2013, thecourt arrested the prosecutor, finding that he intentionally hid evidence to secure Morton’s conviction.

North Carolina’s governor signed legislation in 2006 establishing the North Carolina Innocence Inquiry Commission, an alternate legal process that only considers claims of innocence by a convicted person. The commission can refer cases to a three-judge panel that can dismiss the charges.

Rebecca Brown, director of state policy for the Innocence Project, told ThinkProgress that North Carolina’s commission is different because it doesn’t send the cases back to the district court but it was a groundbreaking measure at the time.

While the courts of special inquiry could create another avenue for exoneration for those who are wrongfully convicted in Nevada, the Innocence Project is also working to prevent wrongful convictions in the first place. Klein alleged in his original trial that he was misidentified by a witness in a photo lineup, a procedure Nevada no longer allows.

“We worked in partnership with members of the law enforcement community on updating their policies,” Brown said about the Innocence Project’s efforts after Nevada passed a law requiring written policies on eyewitness identification procedures. The Las Vegas Police Department recently updated its policy to require blind photo lineups, where the administrator isn’t aware of the suspect, and Brown said she is working with other counties to implement similar rules.

A 2014 report found that eyewitness misidentifications contributed to 72 percent of the 318 wrongful convictions that were later overturned by DNA evidence. The report endorsed a number of changes police departments should make to the process to ensure accuracy, including blind administration and the videotaping of the procedure.

Will Mr. Adam Laxalt who is running for Nevada Attorney General look the other way with regard to that Attorney General’s Office having a practice and a policy of withholding evidence from Plaintiff’s in cases?

adam_laxaltWill Mr. Adam Laxalt  who is running for Nevada Attorney General look the other way with regard to that Attorney General’s Office having a practice and a policy of withholding evidence from Plaintiff’s in cases?
We know that Secretary of State Ross Miller who is running for the same position does when he along with the Nevada Governor Brian Sandoval, and  Nevada Attorney General Catherine Cortez Masto were presented with evidence by Ms. Tonja Brown during the December 5, 2011 and May 17, 2012 Board of Prison Commissioners meetings.
Ms. Brown provided the Commissioners with this information along with her documents that supported her testimony before them.  Ms. Brown asked of them to call for an outside investigation into the Attorney General’s Office.   Her testimony and documents were then stricken and removed from the record.
Brown claims that they did not place on the record her documents until after she had filed suit in July 2013 and to this day not all of the documents have seen the light of day, nor have they done as she had requested of them during the December 5, 2011 and May 17, 2012 Board of Prison Commissioners meeting.

Tonja Brown informs Gov. Brian Sandoval and NAG Catherine Cortez Masto of 1st Amendment Rights violations and lawsuit

Tonja Brown informs Gov. Brian Sandoval and NAG Catherine Cortez Masto of 1st Amendment Rights violations and lawsuit

Ms. Brown filed suit against the Board of Prison Commissioners, NDOC, and DAG William Geddes and DAG Kara Krause in July 2013 for a Breach of Settlement Agreement she had made with the State in the wrongful death suit of her brother, Nolan Klein.
Brown claims that they did not place her documents on the record until after she filed suit and served them and as of this date not all of the documents have seen the light of day, nor have they done as she had requested of them and that they had her documents blocked from anyone accessing them.

judge tatro

She claims they have breached the terms of the Settlement Agreement she made with them.  A trial date has been set for April 6 & 8, 2015 in the First Judicial District Court, Department 2 Judge James Wilson.

A brief summary of this case.
Nolan Klein passed away 5 years ago on September 20, 2009 from lack of medical care by the Nevada Department of Corrections.

Just prior to Mr. Klein’s death the evidence was found hiding in the Washoe County District Attorney files that would have exonerated him from the 1988 Payless Shoe Store crime.

In October 2011 Ms. Brown hired a private investigator to locate the prime suspect, Mr. Zarsky.   The Sparks Police theory was they believed Mr. Zarsky had committed the crime Nolan Klein was convicted of.   In November Ms. Brown drove to another state and had the opportunity to listen to what Mr. Zarsky had to say.

Mr. Zarsky admitted he had knowledge of the Payless Shoe Store crime and the 3 other crimes the SPD believed he had committed. The victims from the 3 other crimes had cleared Mr. Klein and all was hidden by the Washoe County District Attorney’s office.

 In two of the cases the May 9, 1988 Payless Shoe Store robbery for which Mr. Klein was convicted of and the April 21,1988 armed robbery and attempted rape that the victim had cleared Mr. Klein of and hidden this fact from the defense and jury.  The victims in these cases two separate cases had described the knife as being red and black again, all hidden from the defense by Mr. Rachow and covered up by the Washoe County District Attorney’s Office.
In 2009 just prior to Mr. Klein’s death Judge Brent Adams ordered District Attorney Richard Gammick to turn over the DNA test results and the entire file in Mr. Klein’s case.    Located in the files were the handwritten notes from ADA Ronald Rachow defying a 1988 court order to turn over all of the evidence. The Washoe County District Attorney’s office knew about what Mr. Rachow had done and kept quite.
In Mr. Klein’s file were over 200 documents hidden from the defense mostly exculpatory evidence.  During the January 17 – 23 1989 trial  Mr. Rachow presented only 20 exhibits, mostly, photographs of the Payless Shoe Store crime scene.

In 2010 Ms. Brown filed suit against the NDOC in the wrongful death of Nolan Klein.  During the discovery process Ms. Brown discovered that the Attorney General’s office had withheld evidence in one of Nolan’s federal civil cases against the NDOC.  Ms. Brown claims that ultimately this new development with regard to this evidence had a profound adverse effect on Mr. Klein’s  2007 Parole Board hearing and 2008 Compassionate Release Pardon.

 As a part of the Settlement Agreement  Ms. Brown made with the State she could exonerate their names.  When she went to do this at the December 5, 2011 and May 17, 2012 Board of Prison Commissioners they claimed the documents were deemed confidential and would not be placed on the record.  Ms. Brown demanded that they call for an investigation into the Attorney General’s Office for withholding evidence, file a complaint with the State Bar of Nevada against Mr. Geddes for withholding evidence in Mr. Klein’s federal case, and write a letter of apology to her.   They have refused to do so.

Brown then filed suit Tonja Brown v NDOC, Governor Brian Sandoval, Attorney General Katherine Cortez Masto, Secretary of State Ross Miller, DAG William Geddes, DAG Kara Krause in Carson City, NV for Breach of Settlement Agreement. Trial is set for next April 2015.

Brown states that because of their refusal to as she has requested of them she has been prevented from seeking a Posthumous Pardon for Mr. Nolan Klein because the documents that were disseminated by the NDOC to the 2007 Parole Board and 2008 Pardons Board still  contain the  information pertaining to Mr. Klein and Ms. Brown.
Some of this false information was a direct result of a June 5, 2007 computer glitch that “FLIPPED” when the NOTIS software program was installed at the NDOC, thereby,  placing false felony charges in inmates files making it appear as though they have committed new crimes.
This information was then submitted to the 2007 Parole Board at which time Mr. Klein was appearing before them.  Mr. Klein then was denied his parole to the street in February 2008 and his previous granted paroles were revoked and he was placed back onto his first life sentence.
The following year, Mr. Klein appeared before the Nevada Pardons Board on a Compassionate Release Pardon because he was dying.  The Nevada Pardons Board consisted of the Nevada Supreme Court Justices, Attorney General Katherine Cortez Masto, and Governor James Gibbons. The Pardons Board were given a copy of the interview of Washoe County District Attorney Richard Gammick publicly admitting that he opened up Mr. Klein’s DNA and tested it. Mr. Klein’s attorney’s demanded to know where the test results were.
 The Nevada Pardons denied Mr. Klein a Compassionate Pardon and Mr. Klein died on September 20,2009.  At the time of Mr. Klein’s death his attorney’s were about to file their Motions for New Trial based on Newly Discovered evidence, and bail.  Mr. Klein’s criminal case was still pending on Appeal in the 9th Circuit.  Once Mr. Klein died everything became Moot!
Ms  Brown said “although Nolan is gone he is not forgotten.”   “The day he is given a Posthumous Pardon and Washoe County is held responsible for their actions will be the day I will let this go”
” the truth will be told in the upcoming release of her book “To Prove His Innocence  A Sister’s Love”

Tonja Brown informs Gov. Brian Sandoval and NAG Catherine Cortez Masto of 1st Amendment Rights violations and lawsuit

Tonja Brown informs Gov. Brian Sandoval and NAG Catherine Cortez Masto of 1st Amendment Rights violations and lawsuit

Tonja Brown informs Gov. Brian Sandoval and NAG Catherine Cortez Masto of 1st Amendment Rights violations and lawsuit

Tonja Brown informs Gov. Brian Sandoval and NAG Catherine Cortez Masto of 1st Amendment Rights violations and lawsuit related to Nevada Open Meeting laws and violations of a previous settlement concerning Nolan Klein.

 

Protesters gather in front of Reno Nevada home of Federal Prosecutor Ron Rachow

On November 23, 2012 Protesters gather in front of Reno Nevada home of Federal Prosecutor Assistant U.S. Attorney Ronald C. Rachow

Reno police (“RPD”) were apparently called by Mr. Rachow and RPD let the protesters continue their free speech and exercise their 1st amendment rights in front of Mr. Rachow’s Reno home. Thank you RPD, Guy Felton also thanks  Steven Pitts and salutes the RPD,  and we appreciate the professionalism of the RPD.

There is the Nolan Klein case where the prosecuting attorneyRon Rachow, intentionally withheld all of the exculpatory evidence that showed that someone else was responsible for the May 9, 1988 Payless Shoe Store crime. This was discovered in 2009 when Judge Adams ordered DA Richard Gammick to turn over the entire file in the Nolan Klein case. In the file were the handwritten notes that he was not going to turn over any of the exculpatory evidence that some else was responsible for that crime as well as the 3 other crimes, ALL HIDDEN FROM THE DEFENSE AND JURY.  Not only did Mr. Rachow withhold the evidence that would have cleared an innocent man, several employees within the Washoe District Attorney’s Office knew about this AND SAID NOTHING SINCE 1988. Mr. Rachow defied a 1988 Court Order by Judge Peter Breen to turn over all of the evidence.
Ron Rachow killed an innocent man

Ron Rachow killed an innocent man

In fact, in a September 22, 2008  interview given by Washoe County District Attorney, Dick Gammick regarding Mr. Klein being considered for a Pardon, Gammick publicly admitted that they opened up the DNA and tested it.  Shortly thereafter, ADA John Helzer appeared before the Nevada Pardons Board on October 29, 2008 stating prior to Mr. Klein ever  being considered for a Pardon he heard things so looked in Mr. Klein’s file. He looked, he saw and HE SAID NOTHING ABOUT THE OTHER SUSPECT.
     The Nevada Pardons Board denied Mr. Klein a Pardon, thereby, by their denying Mr. Klein a Pardon one can only conclude that they have to had to condone the Washoe County District Attorney’s Office of Brady Violations.
     After the Pardons Board Hearing, Mr. Klein’s attorney’s filed a Motion for Dick Gammick to turn over the DNA test results.  Washoe County District Court Judge Brent Adams issued and Order for Gammick to turn over the DNA test results and included the entire file in the Nolan Klein case.  On June 10, 2009 the file was turned over.  No tests results have ever been turned over.
     Just prior to Mr. Klein’s death in 2009 he learned the truth what the Washoe County District Attorney’s office did and how far several of members of the office went to coverup what Ron Rachow did.
     The Sparks Police Department’s theory was that Mr. Zarsky was responsible for this crime as well as other crimes in which those other victims cleared my innocent brother, Nolan Klein.
Sparks Tribune – Nevada in Brief In a 2010 video I  have Richard “Dick” Gammick on tape why he continued to employ Mr. Steven Barker who had been cited several times in several different cases for withholding evidence, even DNA that exonerated the person.
      In September the film crew will be coming to the Reno/Carson area to film the documentary movie “Lawless America”. Nolan Klein’s case will be featured as a part of the documentary movie on judicial corruption that will be presented to the United States Congress and the Sundance Film Festival.  Several requests thus far have been sent to Mr. Gammick and still no response.

Please See http://www.justicefornolanklein.net

Please See Nevada Prison Watch

Please See The Nolan Klein story on Lawless America

Ron Rachow must be charged with the murder of Nolan Klein. – Tonja Brown

Protesters gather in front of Reno, Nevada U.S. Attorney Ronald C. Rachow home 11/23/2012

Protesters gather in front of Reno, Nevada U.S. Attorney Ronald C. Rachow home 11/23/2012

Ron Rachow protest

Protesters gather in front of Reno, Nevada U.S. Attorney Ronald C. Rachow home 11/23/2012

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Lawless America Movie Interview: Tonya Frances Brown for Nolan Klein. Nevada killed an innocent man

Please watch this powerful and enraging video featuring Tonja Brown, Nolan Klein’s sister, who fought and still fights hard to battle injustice done to her brother and also to fight for basic human rights of others still inside.
On Sept. 20th, please remember Nolan Klein, an innocent man who died in 2009 on that day, while still in prison, all because evidence that could have exonerated him, lay hidden and was never presented by the prosecution.

www.justicefornolanklein.net

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