The Nevada Supreme Court on Tuesday rejected an appeal based on arguments the Washoe County Sheriff's Office mishandled and lost DNA evidence an inmate says could have cleared him.
Nolan Klein filed the petition for a writ of habeas corpus more than three years ago, charging that cigarette butts from the crime scene were missing from the evidence. He maintains new DNA testing of those butts could prove someone else was at the crime scene in Sparks and potentially clear him.
Klein was convicted of robbery, burglary and sexual assault in March 1989, sentenced to two life terms plus 30 years in prison.
The petition sought dismissal of the charges or a new trial because of the missing cigarette filters.
His sister Tonja Brown said Tuesday the ruling wasn't a surprise.
"We didn't expect them to do anything else because by doing this they would open a Pandora's box for every other inmate who ever had evidence stored by the Washoe County Sheriffs," she said.
She said all the issues are raised in Klein's federal court appeal.
"The record before this court reveals that Klein did not claim that DNA testing of the cigarette filters might have exculpatory value until well after the filters were discovered missing in November of 1995, when testing was no longer possible," says the opinion signed by justices Miriam Shearing, Bob Rose and Nancy Becker.
They also stated that Klein failed to show he was prejudiced by disappearance of the filters and failed to show bad faith on the part of the state.
They said even if the cigarette filter showed a different DNA signature, Klein failed to show that the verdict would have been different since "the record of Klein's trial reveals substantial, independent evidence establishing Klein's guilt beyond a reasonable doubt."
Brown, meanwhile, said the evidence in her brother's case continues to change. She said an attorney working for Klein two years ago found all the cigarette evidence missing but then a federal investigator examined the evidence earlier this year and said there was a cigarette butt back in the file. But she said it was the stub of an unfiltered cigarette butt, not the remains of a filtered butt.
Klein also lost another legal action he had before the high court Tuesday.
He had petitioned the court to restore some of his statutory good time credits which prison officials took away for possession of contraband, including tattooing equipment. Klein said the materials belonged to his cell mate and that he should not be disciplined solely because of his housing assignment.
The high court ruled Klein was given his chance to argue those points during the disciplinary hearing and refused to overturn its decision. That cost Klein 60 days of good time credits.
