JUSTICE FOR NOLAN KLEIN DOT NET

My brother is innocent,
and I can prove it!

~ By Tonja Brown, Nolan's sister

On May 9th, 1988, there was an armed robbery and rape at the Sparks, Nevada, Payless Shoe Store.
At 10:19 pm the suspect called 911 and informed the operator that he had just robbed the Payless Shoe Store and had locked the girls in the bathroom. [A recording of this 911 call reveals that the suspect's voice is distinctly different from Nolan's.]

About 2 weeks after the crime occurred, my brother, Nolan Klein, walked past the shoe store. Bridgette Sloane, one of the employees, saw Nolan walk by and commented to a customer, "He looks like the guy who robbed us and raped the manager, Theresa Rodela."

The customer immediately called the Police. Nolan was picked up for questioning and held for several hours. The police never gave the Miranda warning to Nolan, but he was told he could not leave until he gave the police his fingerprints, pictures for a photo line up (showing Nolan with a full beard), and taped his voice to compare it to the suspect's who had called 911.
(Later, at trial, only the suspect’s voice from the 911 call was admitted into evidence. The tape recording of Nolan's voice that was obtained during his questioning never made it to court. The Jury only heard the 911 call of the suspect's voice on tape).

Nolan was arrested on September 15, 1988. We first met Nolan's Public Defender, Shelly O'Neill, during the October preliminary hearing.
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At that hearing, the victims testified that the suspect had brown or dark eyes, had a 2 to 3-day-old beard growth (stubble), and chipped front teeth and that the suspect smoked two cigarettes.
Nolan told Shelly that he had heard of DNA testing and he wanted her to get it done so he could clear himself. O'Neill told Nolan that she was going to let the District Attorney do it.

For months Shelly O'Neill was informed about the discrepancies regarding Nolan's beard. Nolan had a full beard of approximately 2 to 3 inches in length at the time of the crime. O'Neill was given a list of several people who could verify the length of his beard. Shelly could see that Nolan had nothing wrong with his teeth and has bright blue eyes.

In December of 1988, the DA used a warrant to seize Nolan's DNA -- consisting of his blood, saliva, pubic hairs and hair combings.

Nolan's trial began on January 23 1989. It was during the trial that we were informed that the DA never tested or compared the DNA from Nolan and the suspect. On January 27, 1989, Nolan was found Guilty.

A Proof of Nolan Klein's Innocence:

At the time of the crime, Our mother, John Darnell (J.D.), a long-time friend of our family, Bill Richards, and Nolan decided to get together at Jack's Bar in Carson City to play some pool and make bets on whether or not a 200-year-old prediction by Nostradamus, the prophet, was going to come true. Nostradamus predicted that on May 10, 1988 California would suffer a great earthquake and fall into the ocean, thereby, leaving Nevada with beach front property. It was a joke. This is why everybody remembered where Nolan was at the time of the crime. These witnesses testified that if it had been any other night they wouldn't have remembered, but this was an event. Was the prediction going to come true or not? It did not!

I knew Nolan was INNOCENT, I had even called him at the bar and spoken to him. I just had to prove it. I had to find the pieces of the puzzle to show that Nolan was truly innocent. After trial I went to the Washoe County Courthouse to pick up Nolan's clothes from the trial.

There I met with Judge Charles McGee's law clerk, Mr. Wayne Howell. He informed me that he didn't have Nolan's clothes. We then started to discuss the trial and how I couldn't understand with all of the evidence showing the discrepancies between the victims suspect and Nolan how Nolan got convicted.
I pointed out the major discrepancies between Nolan having a full beard and the suspect only having a 2-3 day old stubble. Mr. Howell informed me that no beard evidence was elicited from any of the defense's witnesses. That was the beginning of my investigation. I left the courthouse wondering how O'Neill could have overlooked this crucial piece of evidence. I decided to back track on what O'Neill was supposed to have done.

I learned that all of the names of the witnesses that were given by me to O'Neill regarding Nolan's full beard were never contacted by her. And the witnesses who did testify at trial, including me, were never asked about the length of Nolan's beard either. This would later be used as one of many grounds for ineffectiveness of assistance of Counsel.

Nolan would now stand before Judge Charles McGee to be sentenced. When asked of O'Neill what sentence Nolan should be given, she stated that "Mr. Klein has always maintained his innocence." Nolan was sentenced to 40 years plus 2 life sentences. His life was now over.

April 4, 1989, would be my first visit to the Washoe County Evidence Room at which time I obtained photocopies and photographs of the evidence. As I looked at the photo line up taken of Nolan by which the victim was able to get a positive identification, I thought could it be me that sees just how tainted this photo line up is?
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So, I put my thought to the test. I handed the photo lineup to the supervisor of the evidence room and asked him to look at the photo lineup to see if anything appeared to be out of the ordinary. He went right to Nolan's picture and pointed to it and said that Nolan's picture was very suggestive. This would prove valuable later on.

I collected photo copies of the evidence and left the courthouse. To my surprise, or rather shock, THE HANDWRITTEN MEDICAL RECORDS OF THE EXAMINING DOCTOR, who had examined Theresa Rodela, indicated that there was NO PENETRATION.

This medical report was never turned over during discovery, however, it was turned over to Shelly O’Neill while the State’s witness was on the stand.

The doctor had testified the report was correct. O’Neill never caught this. NOLAN WOULD SPEND THE REST OF HIS LIFE IN PRISON FOR A RAPE WITHOUT PENETRATION! This would become valuable information for later on.
During my investigation I discovered that the involved Sparks police detective believed that whoever committed the crime for which Nolan was convicted had also committed a crime on April 21, 1988.
Yet, Nolan was never charged with that crime. I always wondered did the jury believe that Nolan had committed that crime and already been tried and convicted of that crime?

O'Neill never bothered to check out any of these facts that were located right there in front of her.   It was a newspaper article that she had submitted into evidence during the trial that stated, "unidentified Detective said this case was very similar to an attempted sexual assault and robbery that occurred on April 21, 1988."

This information could have shown to the jury the reasonable doubt, if only O'Neill had investigated it. So, I did what O'Neill should have done. I tracked down the story about the victim from April 21, 1988.

At the library, I found the following article from the Sparks Tribune of April 22, 1988:

A woman told police she was walking down El Rancho St. in Sparks shortly after 12 a.m. on April 21 when a man stopped his vehicle and offered her a ride home. When she accepted, the man drove her to a nearby construction site, where he stopped the vehicle and demanded the woman’s purse and gold necklace. When she complied, the suspect hinted he wanted sexual favors. She then managed to escape.

The victim described her assailant as a white male, age 28-30, 5’11” and 150-155 lbs.

He had brown hair and a cleft palate deformity and called himself “Bill,” the victim reported. NOLAN DOES NOT HAVE A CLEFT PALATE DEFORMITY!

(She later described to the police that the man had used a red- and black-handled buck knife to rob her -- the same type of red and black knife that was used in the crime for which Nolan was convicted. This evidence was withheld from the defense and jury)

Another piece of the puzzle was falling into place. The more I looked, the more I was finding out.

Over the course of a few months I would return to the Courthouse to obtain a copy of the suspect's voice on tape. The voice from the 911 call is not Nolan's.

As I was reading the local newspaper, I came across a woman I recognized as a juror from Nolan's trial, Anne Langer.   She had gone to work for the Carson City District Attorney's Office.

I called and spoke to Anne Langer. I wanted to know the reason for the jury being DEADLOCKED and what it was that convicted Nolan. What was it they were looking for in the testimonies of the defense witnesses Bill Richards and the bartender, Barbara Hillman?

You see the jury had asked to re-hear the testimony of both Bill Richards and Barbara Hillman to clear up the time that Nolan had left Jack's bar. Judge McGee only allowed the jury to re-hear one testimony so they picked Bill Richards.

Langer said that they believed Bill Richards was being truthful; they just felt that he was confused about the time Nolan had left the bar since Bill had talked about the sun just going down, when Pinkie (our Mother) and JD left the bar to go to dinner.

Then Langer said that Bill must have been mistaken about the time and it was probably closer to 8:30 instead of Bill claiming that Nolan was there until at least 10:30 p.m. giving Nolan enough time to drive to Sparks and commit the crime.

However, had the jury been given what they had requested, both testimonies, they would have remembered that the bartender, Barbara Hillman, had testified that Nolan was there from when her shift began at 6:00 p.m. until after 10:00 pm.

The crime had occurred at 9:15 in Sparks, the call to the 911 operator was placed at 10:19 p.m.

Langer went on to say that when the rapist took the victim out of the bathroom and into the storeroom, she was able to get a good look at him before he raped her.
Later I would receive a copy of the trial transcripts; what the victim says is that SHE WASN'T ABLE TO GET A GOOD LOOK AT HIM BECAUSE THE LIGHTS WERE OFF!

Langer would inform me that she did not know that Nolan had a full beard the night of the crime, only that he could have grown one by the time he was arrested.

We talked about the 911 call among other things.   More pieces of the puzzle were coming together.

In 1991 Nolan would go back into court for an evidentiary hearing. He had raised 33 grounds of ineffectiveness of counsel, judicial error, and prosecutorial misconduct, etc.

Nolan would bring in other witnesses besides those who testified at his trial that he had a full beard weeks before the crime, the day of the crime, and even days after the crimes.

When O'Neill testified regarding the beard evidence, she stated that according to the booking picture Nolan had a stubble, just as what the victims had described.

Now it made sense. O'Neill had looked at the wrong photo of Nolan. The booking picture was taken when Nolan was arrested September 15, 1988.

O'Neill had based her understanding of the beard evidence on a picture taken 4 months after the crime showing Nolan with beard stubble -- not the night of the crime when he had a 2-3 inch beard or when he appeared in the photo lineup shortly after the crime with a 2-3 inch beard.

O'Neill had gotten the pictures reversed. Now it made sense. Did Langer and the rest of the jury do what O'Neill had done with regard to the beard evidence? Did they get the booking picture of when Nolan was arrested with a stubble reversed with the photo line up as O'Neill had done?

At the evidentiary hearing evidence would come to light from the Sparks Police Department. We would discover that the police had a prime suspect all along, Ricky Lee Zarsky who would disappear the day after the crime.

Police reports of other victims from other crimes believed to be committed by Zarsky came forward.   O'Neil would go on to commit perjury when she testified that she had investigated Ricky Lee Zarsky, the Sparks Police Department's prime suspect.

Judge Charles McGee would only address some of the grounds before he dismissed Nolan's petition. On to the Nevada Supreme Court which dismissed the petition as well. It was off to federal court.

In the meantime I could not let O'Neill's perjury go. I would file a perjury complaint against her, taken from the pages of our book, TO PROVE HIS INNOCENCE. O’Neill was given the opportunity to review the manuscript before it went to print. She returned the manuscript without comment.

In 2007 I would appear before the committee considering O’Neill for the position of head of the Washoe County Public Defender’s Conflict Unit. I presented all of the documents showing that O’Neill had committed perjury. The committee gave O’Neill the opportunity to defend herself and she said NO!

No one would charge O’Neil with perjury. Therefore, the Court would not grant Nolan’s writ, nor even look at the evidence to see if it proved perjury.

Anything that Nolan had brought up before, and that Judge McGee had dismissed, could not be brought up again, even if Judge McGee was wrong.

The only way to get a review of Judge McGee’s decision was to go to the Supreme Court of Nevada to appeal McGee's decision -- or to finally file in federal court. All of these steps had to be followed in order to be lawfully correct.

My response to the dismissal of the writ, and the refusal to act by the DA’s office, was to direct attention to this by the only means I knew that might work. I again contacted the media. I called the Sparks Tribune and the Nevada Appeal.

On June 21, 1993, I was in front of the Public Service Commission to protest the employment of O’Neill in a state job. My protest sign proclaimed the battle cry given to me by the Assistant DA: “What’s the difference between a lie and an exaggerated truth?” On the flip side “Ask Shelly O’Neill.”

The media did show up, now savvy to my ongoing protest of the justice system. Angela Curtis of the Sparks Tribune interviewed O’Neill. Troy Anderson with the Nevada Appeal asked O’Neill for a statement also.

O’Neill told Anderson that she couldn’t talk at that time, but she did come out to speak, or rather to plead with me, and we spent a half-hour talking. O’Neill told me that her job was in jeopardy. I couldn’t believe that O’Neill thought that I could be swayed by such an appeal.

I dismissed such a notion immediately. Then O’Neill tried to threaten me and told me that she had called Ann Langer (Nolan’s former juror and then assistant DA in Carson City) and she intended to have me arrested for stalking.

I reminded her that the Public Service Commission was a public place and that, as a U.S. citizen, I was exercising my First Amendment right. Shelly had to admit that I was correct, and further said that I was "one smart girl."

Then the negotiating began. O’Neill wanted to know what it would take for me to go away. At that moment, I intended to get the truth before going away -- and so I merely said that what I wanted was the truth.

Incredibly, O’Neill said, “O.K. what do you want to know?

I cut straight to it and said I wanted to know about the prime suspect, Rickie Lee Zarsky.

O’Neill stated that she had caused Tim Ford, an investigator, to check Zarsky out before trial. I knew that she had not done this and I called her on it. I revealed the conversation I had with Ford. He immediately told me that he remembered me and the case, but he had no idea about another suspect. I told him that O’Neill had testified that she had sent him to investigate and check out the leads on Zarsky. He said that this was not only not in the file, but he had no personal recollection of it, either.

“Well, you caught me.” O’Neill said. “But, would it have made a difference?” This was the constant refrain adopted by O’Neill. This was all she would reply to one after another fact that I threw at her. "Would it have made a difference?"

“Damn right, if the jury had known there was another suspect when it was a case of mistaken identity," I slammed back at her.

I went on to remind O’Neill that if differences between the composite sketch of the suspect in the April 21st incident and the composite sketch of the Payless suspect had been stressed to the jury, this would have certainly caused jurists to wonder if someone other than Nolan was the Payless perpetrator.

Didn’t O’Neill see that the unidentified detective might have made a huge difference if he had been called to testify why he wrote that the Payless crime was “very similar” to a crime that occurred on April 21st at Oddie and El Rancho?

Here is a major point in Nolan's favor: the Payless victim had been given an opportunity to view and identify Nolan while he was at the Sparks police station. But the victim could not do this! This fact was withheld from the jury. Certainly, this would have had heavy meaning for jurists if they had been so informed.

How could O’Neill say that similarity of these two crimes might not have created a huge doubt in the jurors’ minds? O’Neill simply failed to respond.

What I could not believe was O’Neill’s reaction to the explanation of the beard evidence. I told her that I had read her testimony from the hearing. I had constantly complained that she neglected to put on the evidence that Nolan had a full beard at the time of the crime.
The victims had described their assailant as having a stubble. However, much of this evidence had been muddled. I described to O’Neill that the booking picture of Nolan, taken September 15, 1988, showed Nolan with a stubble as the victims described.
O’Neill had relied upon that picture for her understanding of the status of Nolan’s beard. What she had missed was that Nolan had a full beard which showed up in the photo line up at the time he was detained for questioning in May, four months earlier.
At the time of his arrest, he only had a two- to-three day stubble, just as the victims had described. But Nolan was arrested in September.
O’Neill’s chin dropped upon the realization that she had missed my entire point during trial because she had looked at the wrong photo.

I demanded to know why O’Neill had failed to follow up on the witness information that Nolan's and my mother had found.
Don Lutzenberg had been watching the rapist's car the night of the Payless incident and had written down the license plate number. My mom had actually located Mr. Lutszenberg. O’Neill hadn’t even checked out the license plate number. All she asked again was, “Would it have made a difference?
Yes! Of course! The rapist had a different license plate number, not Nolan’s license plate number.
If I had discovered all of this evidence, why had O’Neill -- an attorney with an investigator on call -- not found some of this exculpatory information? Had the DA really cooperated as O’Neill had testified?
I knew the answer was "no" or why would O’Neill have made a motion before trial to force the DA to reveal the evidence because they had refused to turn it over?
I was sickened by the admissions of O’Neill. How could she ever absorb the import of her plain callousness for Nolan's case and the result? “Would it have made a difference?” rang in my ears for the better part of two weeks.
I needed to scream about the injustice in some way -- or burst with the knowledge inside of myself. I sent a letter to the Assistant DA detailing the statements made by O’Neill. The letter joined the rest of the file on his desk and laid there until the statute of limitations ran out in 1994.

The documentation that I had amassed convinced the City Council, but didn’t phase the Assistant District Attorney.

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