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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. CREDIT: AP PHOTO/SANDRA CHEREB
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.”

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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.

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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, the court 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.

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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.