I would like to respond to Jeff Ackerman's Dec. 14 editorial: "Everybody deserves a day in court - on the jury." First of all, I would like to state, that I enjoy reading the editorials. However, this time I had to respond. Mr. Ackerman said "before I drove to the courtroom I got some great advice from a co-worker. Think about this, he said. If the guy was really innocent, it probably wouldn't have gotten this far. It made sense to me, but I was still determined to keep an open mind. A recent survey said 99.9 percent of all inmates in America today claim they are innocent."
Mr. Ackerman, I agree that 99.9 percent say they are innocent, and most of us laugh at that. But until you are personally involved with one of those innocent people you would have no clue how devastating it could be. Let me give you some facts. First on statistics. In 1986 our U.S. Supreme Court (not Nevada Supreme Court) said in an opinion not a rule, that there are more miscarriage of justice on misidentification than any and all factors combined. They also said that there are an estimated 18 percent of all men serving time in our prisons for rape that are innocent, and each year that percentage goes up. Then in a recent study (1995), the FBI said an estimated 36 percent of men convicted of rape, rape and murder are innocent. It's DNA that is clearing them. Scary thought, isn't it?
You see, my brother, Nolan Klein, is one of those statistics. He too had a jury trial. He wasn't given the privilege of affording a private attorney. He had a public defender, Shelly O'Neill, who didn't investigate into a prime suspect who according to police reports believed he was responsible for the rape my brother was accused of. She didn't use evidence that was given to her that could have proven that Nolan had a 2-3 inch beard weeks before, the day of, and the day after the May 9, 1988 crime. The suspect had a 2- to 3-day-old beard growth, brown eyes, chipped front teeth. Nolan has bright blue eyes, no chipped teeth, and had a beard. The only thing that did come out was the color of the eyes. None of the witnesses that did testify were asked about his beard.
Even when it came to jury selection he had no say. You see there was an attorney who was selected. During jury deliberations the jury told the judge that they could not reach a decision until they hear two defense testimonies read back - Bill Richards and the bartender of Jacks Bar, Barbara Hillman. The judge informed the jury that it would take too long to have the testimonies transcribed, so they had to pick one. They picked Bill's.
During the second day of jury deliberations as I sat waiting to hear the testimony of Bill's read back, I watched the jury. One in particular, she sat on the top row and wore a multi-colored sweater. She looked at Nolan and me, she gave a smile as to say everything was going to be OK. Then the reading began. Her smile went away. The jury went back into the jury room and a few minutes later a decision was made. As she came out she wouldn't look at us. Later I would find out who she was. Her name was Anne Langer, yes our Assistant DA.
In January 1990, I contacted her to find out what it was that convicted my brother. She said that there were two reasons they found him guilty. One reason was, they felt that our defense witness made an honest mistake as to the time Nolan left the bar in Carson City. Anne said that according to Bill's testimony, Bill said that Nolan left the bar around 10 p.m. and since Bill had talked about the sun going down when Pinkie and John left the bar to go to dinner, they felt that Bill must have been mistaken about the time Nolan left. Instead of it being around 10 p.m. as Bill testified to, it was closer to 8:30 which would give Nolan enough time to drive to Sparks and commit the crime at 9:15 p.m. The judge wouldn't allow the jury to hear the testimony read back of the bartender Barbara. She said Nolan was there until 10:30 p.m.
The second thing Anne said was when Nolan took the girl out of the bathroom and into the storeroom, they spent a lot of time together and she was able to get a good look at him before he raped her. Here is the testimony of the victim when asked "could you see him clearly at that time?" Answer, "when he first came in the door I could. I mean I knew it was him again. But when we were in the back room, I couldn't see because it was dark." That is what convicted Nolan. The jury misunderstood what they thought they heard.
As for any kind of DNA testing being done to clear him, it has now been stolen, and according to the chain of custody it never left the Courthouse. However, it did go to the judge and to the DA's office. Nolan's case is in front of the Nevada Supreme Court again. This time it is unopposed by the DA's office. They've conceded to everything we've been saying all along, that Nolan wanted to have DNA conducted before the trial. So here he sits until the court rules, which will probably be another two years. Then we expect them to dismiss it as they always do. Then on to federal court. There is no justice in our state courts.
So, the next time some inmate says he's innocent, think about Nolan's story. Because it very well could happen to you. After all, how many times in your lifetime have you mistaken someone for somebody else, or they mistook you for somebody else?
TONJA BROWN
Carson City
