Eyewitness: How Accurate Is Visual Memory?

Lesley Stahl Reports On Flaws In Eyewitness Testimony That Lead To Wrong Convictions

(CBS)  This story was first published on March 8, 2009. It was updated on July 11, 2009.

It's a cliché of courtroom dramas - that moment when the witness is asked "Do you see the person who committed the crime here in this courtroom before you?" It happens in real courtrooms all the time, and to jurors, that point of the finger by a confident eyewitness is about as damning as evidence can get.

But there is one type of evidence that's even more persuasive: DNA. There have been 235 people exonerated by DNA in this country, and as 60 Minutes and correspondent Lesley Stahl first reported in March, now a stunning pattern has emerged: more than three quarters of them were sent to prison at least in part because an eyewitness pointed a finger - an eyewitness we now know was wrong.

---

It was hot and humid in Burlington, N.C. on the night of July 28, 1984. Jennifer Thompson, then a 22-year-old college student, had gone to bed early in her off-campus apartment. As she slept, a man shattered the light bulb near her back door, cut her phone line, and broke in.

"I remember kind of waking up and turning my head to the side and saying, 'Who's there? Who is it?' And I saw the top of someone's head kind of sliding beside my mattress. I screamed and I felt a blade go to my throat," Thompson told Stahl.

Thompson said the man, armed with a knife, told her to shut up or that he would kill her.

Her first thought was to offer him anything she had to go away. "'You can have my credit card. You can have my wallet. You can have anything in the apartment. You can have my car.' And he looked at me and said, 'I don't want your money.' And I knew what was gettin' ready to happen."

She vowed to stay alert and study him so that if she lived, she could help put him away forever. "'What is his voice? Does he have an accent? Does he have a scar? Is there a tattoo?'" Thompson explained.

"He's raping you, and you're studying his face," Stahl remarked.

"It was just trying to pay attention to a detail, that if I survived, and that was my plan, I'd be able to help the police catch him," she replied.

After about half an hour, Thompson tricked the rapist into letting her get up and fix him a drink; she ran out the back door. He fled and raped a second woman half a mile away. Detective Mike Gauldin met Thompson at the hospital.

"The first comment I remember her making was that, 'I'm gonna get this guy that did this to me.' She said, 'I took the time to look at him. I will be able to identify him if I'm given an opportunity,'" Gauldin remembered.

Detective Gauldin worked with Thompson to make a composite sketch, poring over eyes, noses, ears and lips in an effort trying to recreate the face she had seen that night. The sketch went out, and tips started coming in.

One of those tips was about a young man named Ronald Cotton. He worked at a restaurant near the scene of both rapes, and had a record: a guilty plea to breaking and entering, and as a teenager, to sexual assault.

Three days after the rape, Gauldin called Thompson in to do a photo lineup. He lay six pictures down on the table, said the perpetrator may or may not be one of them, and told her to take her time.

Gauldin said Thompson did not immediately identify a photo, taking her time to study each picture.

"I can remember almost feeling like I was at an SAT test. You know, where you start narrowing down your choices. You can discount A and B," Thompson said.

"Oh, like multiple choice?" Stahl asked.

"Exactly," Thompson replied.

[demandjusticefortonyford]

Tony Egbuna Ford was sentenced to death in 1993 based solely on faulty eyewitness identification. He has endured receiving two execution dates only to have them stayed, but could receive another one at any time. The issues with the ID in his case are many and include:
* Viewing a 6 person photo spread with Tony at position 5, the witness first picked out number 4 as the perpetrator. This was written over with the number 5 later (by the detective in the case). We have copies of both the original and the amended statements. This has never been explained and was never challenged by Tony's trial counsel.
* One of the two witnesses identified Tony AFTER his picture had been all over the news as the prime suspect, and after having time to speak to the first witness (her sister) and discuss the photo spread (both sisters were shown the same photo spread)
* One of the two "eye witnesses" stated she had her head buried in a pillow the whole time of the incident
* On the day of trial both witnesses were asked (improperly) to confirm their identification of Tony outside of the courtroom. The prosecution pointed to Tony and asked "does that look like the man?". The witnesses took a long time to look at him and answered only that they weren't sure but it "could" be. This was witnessed by the court reporter who came forward in 2006 and spoke to journalists then researching the case for the show "The Wrong Man". The court reporter stated it was the only case that had ever caused him to be upset since he knew as soon as he witnessed it that Tony's trial would not be fair.
* This was a cross racial ID - under high stress.
* None of the other men in the line ups the witnesses were shown looked even vaguely like Tony or the true perpetrator.
* Eyewitness evidence was the ONLY evidence against Tony.

Further information on Tony's case is available on www.tonyegbunaford.com - including a study done by an eyewitness expert (whose assistance was denied at trial) which shows that the photospread was heavily weighted towards Tony being picked out.

What kind of a justice system consistently affirms a conviction based on eyewitness testimony that is so clearly open to serious question. Death is final and we do not want Tony to be the case that proves innocent men are executed in the state of Texas.

[Slrman]

Every police officer and prosecutor knows that eyewitness testimony is horribly unreliable. But they need "good busts" and convictions to advance their careers. So truth and justice take a distant second place to that.

I have never known a police officer who didn't lie, falsify evidence, and ignore facts. Nor have a ever heard of a prosecutor who didn't do as much or worse. The "justice" system in the USA is broken. If there were justice, many cops and prosecutors would be in prison.

[Mrkizzmo]

Leslie, what you failed to inform us is WHAT PERCENTAGE OF THE 230 MEN FREED IN THE LAST FEW YEARS BY DNA WERE BLACK OR MINORITY MEN! My guess is 80 to 90%. The most recent PUBLICIZED case, Bonnie Sweeten, from Philadelphia, who claimed that she and her daughter Julia had been abducted by black men; she was later found at Disneyland! What she failed to realize was the 'maelstrom' and 'frenzy' she caused when she falsely reported that they had been kidnapped by 'black men'; the police went into overdrive and the FBI got involved nationwide, because: 'A WHITE woman and girl had been taken by BLACKS!!! BLACKS!!!' I doubt it would have even been a 'statewide' story, (let alone a national one!) had it not been BLACKS falsely accused of the crime...

Thank GOD for DNA, and SHAME on the 'George Bush Sr and Jr Supreme Court' for not mandating the testing of DNA (when available) for EVERY American, instead of leaving it to the 'hodgepodge' of rules imposed by the 50 states. Virginia, for example, will not allow subsequent DNA testing of 'convicted' Americans if it was not requested during the original trial, regardless of whether it would free the wrongfully imprisoned and innocent person or not. WHY? Why can a citizen spend the rest of their life in jail due to an 'incompetent' attorney, even though the evidence to prove their innocence still lies in the State Police vault? Why is it up to the DA in so many other States to 'ALLOW' DNA to be tested, instead of it being a RIGHT? Only in the USA! How many Black men in this country have been spent their lives in prison or been executed before the advent - in 1978 - of DNA? Google "BLAME THE BLACK MAN" and read the sordid and sadistic 'tradition' of victimization perpetrated by our society, and we wonder why many beleive that 'RACISM IS NOT YET DEAD!' Again, Leslie, What percentage of the 230 exonerated by DNA to date were BLACK? PLEASE ANSWER...

[caleb02]

I just saw this story and it brought tears to my eyes because I am going through this now. The father of my child is sitting in a prison cell in Nevada for being accused of rape. He happens to be Muslim and was at the wrong place at the wrong time. He was visiting Las Vegas, which I will never go back to. I wonder if I was there if it would have made a difference since I am caucasian. It took a jury 13 minutes to come up with a guilty verdict and the judge, who should not be a judge gave him life without parole. The evidence does not add up and the victim could NOT point him out in a line up. In fact she did not even say it was him until she was asked if he was in the courtroom. There is no justice when a person has no money, no support system because his family can't afford to fly out there when there was a court date because it changed all the time. I tried to get answers and help and all I got was 'you will have to wait till the sentencing' Well look where that got me. My son will grow up not having his father around.

[bilam]

I forgot to add that the detectives and the DAs involved in this case should be commended for their willingness to see that justice was done and willingness to correct the mistake when it was discovered. There are instances where, perhaps out of pride or conceit , some DAs are reluctant to review or subject the evidence in the case to DNA testing. In hindsight, it appears the mistake was triggered by the absence of the real perpetrator (Bobby Poole) in the intial photo line-up from which he Ronald was misidentified.

[bilam]

In this interview the lady Jennifer Thompson (rape Victim/survivor) did better than the one she did on PBS in 1997. I was somehow pissed off by some of what she said then. Then she sounded resentful that the guy had been out and people were celebrating his release and that he had been interviewed by Larry King! She claimed that unlike him, she was getting no resistitution. That for him he had been merely behind physical bars for 11 years but for her she was behind emotional bars for life (She forgot/ignored the fact that experience of the trial and imprisonment was also to stay with Mr. Cotton for life )

DNA exonerated Mr. Cotton and implicated Bobby Poole. Farthermore, Bobby Poole, when confronted with DNA evidence, confessed to both (Thompson's and Elizabeth's rapes). That is the person she should have adressed her need for resistitution and everything else to -not Mr. Cotton. If she had any lingering doubts, she could and should have asked Mr. Poole some details about the rape and the whole incident that only the actual person who raped her could have known. This should not have been difficult for her since she had claimed that she was more intelligent than her rapist and had used her intelligence over him to escape.

[Tonjabrown]

To Prove His Innocence pg. 143 "No one would charge O?NEILL 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 he had brought up before and that Judge McGee had dismissed couldn?t 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 or to finally file in federal court. All of these steps had to be followed in order and lawfully correct. Nolan was learning. Tonja?s 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 she knew would work.Tonja again contacted the media. She called the Sparks Tribune and Nevada Appeal. On June 21, 1993, she was in front of the Public Service Commission to protest the employment of O?Neill in a State job. Her protest sign proclaimed the battle cry given to her 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 Tonja?s ongoing protest of the justice system. Angela Curtis for 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, Tonja and they spent one-half hour talking. O?Neill told Tonja that her job was in jeopardy.Tonja couldn?t believe that O?Neill thought that Tonja could be swayed by such an appeal. Tonja dismissed such a notion immediately, ?I don?t care.?Then O?Neill tried to threaten her and told Tonja that she had called Ann Langer ( Nolan?s former juror and now assistant DA in Carson City) and she intended to have Tonja arrested for stalking. Tonja reminded her that the Public Service Commission was a public place and that Tonja, a citizen of these United States, was exercising her first amendment rights. Shelly had to admit that she was correct, and further admitted that Tonja was one smart girl. Then the negotiation began. O?Neill wanted to know what it would take for Tonja to go away. At that moment, Tonja really intended to get the truth and go away and so she merely said that what she wanted was the truth. Incredibly, O?Neill said, ?O.K. what do you want to know.? Tonja cut straight to it. She wanted to know about the prime suspect Rickie Lee Zarsky. Ford, the investigator check him out before trial. This, Tonja knew, she had not done and she called O?Neill on it. Tonja revealed the conversation with Ford. Ford had immediately told Tonja that he remembered her and he remembered the case but he had no idea about another suspect. Tonja told him that O?Neill had testified that she had sent Ford to investigate and check out the leads on Zarsky. He said that it was not only not in the file but he had no personal recollection of it either. ?Well, you caught me.? O?Neill commented on Tonja?s narrative of the Ford lack of recollection. ?But, would it have made a difference?? This was the constant refrain adopted by O?Neill. ?Would it have made a difference?? was all she would reply to one after the other fact that Tonja threw at her. ?Damn right, if the jury had known there was another suspect when it was a case of mistaken identity.? Tonja slammed back at her. Tonja went on to remind O?Neill that the contrast of the composite sketch of the suspect in the April 21st incident had it been compared to the composite sketch of the suspect identified by the Payless victims would have certainly caused the jury to wonder if there had been someone else. Didn?t O?Neill believe that the unidentified detective might have made a huge difference if 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. That Payless victim had been given an opportunity to view and identify Nolan while he was at Sparks P.D., but she could not. Certainly, that, with the other evidence would have cast doubt on Nolan?s guilt. 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.

[Tonjabrown]

What Tonja could not believe was O?Neill?s reaction to the explanation of the beard evidence. Tonja told O?Neill that she had read O?Neill?s testimony from the hearing. Tonja had constantly complained that O?Neill 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. Tonja 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 Tonja?s entire point during trial because she had looked at the wrong photo.
Tonja demanded to know why O?Neill had failed to follow up on the witness information that Tonja?s mom had found. Don Lutzenberg had been watching the car the night of the Payless incident and written down the license plate number.Tonja?s Mom had actually located Mr. Lutszenberg. O?Neill hadn?t even checked it out, but all she asked again was ?Would it have made a difference? Yes, he had a different license plate number, not Nolan?s. If Tonja had discovered all of this evidence why had O?Neill, an attorney with an investigator, not found some of this exculpatory information?Had the DA really cooperated as O?Neill had testified? Tonja 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. Tonja was sickened by the admissions of O?Neill. How could she ever absorb the import of O?Neill?s plain callousness for her brother?s case and the result. ?Would it have made a difference? rang in Tonja?s ears for the better part of two weeks. Tonja needed to scream about the injustice in some way or burst with the knowledge inside her. She 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 in 1994. The documentation that Tonja had amassed convinced the City Council but didn?t phase the Assistant District Attorney." CORRUPTION IS EVERYWHERE. DO YOU REALLY THINK THAT JUDGE MILLS LANE WOULD HAVE HAD HIS TV SHOW, "THE JUDGE MILLS LANE SHOW" IF THIS INFORMATION WOULD HAVE BEEN OUT ABOUT WHAT HE DID BACK THEN? JUDGE MCGEE IS A SENIOR SITTING JUDGE IN THE STATE OF NEVADA. SHOULD HE BE? ABSOLUTELY NOT. IN MARCH 2007 DURING A WASHOE COUNTY PUBLIC HEARING WHEN NOLAN'S PUBLIC DEFENDER, SHELLY O'NELL WAS BEING CONSIDERED FOR THE POSTITION OF THE HEAD OF THE WASHOE COUNTY PUBLIC DEFENDERS CONFLITC UNIT EVIDENCE WAS ADMITTED BY ME AGAINST HER. SHELLY DOES NOT DENY THAT SHE ADMITTED COMMITTING PERJURY DURING NOLAN'S 1991 POSTCONVICTION HEARING WHEN SHE TESTIFIED THAT SHE DID AN INVESTIGATION INTO THE PRIME SUSPECT AND THE REST OF THE EVIDENCE THAT CLEARED HIM OF THE CRIME. WHEN THE MEMBERS OF THE COMMITTEE ASKED HER ABOUT THIS SHE SAID SHE HAD NOTHING TO SAY. SHE WAS NOT APPOINTED TO THE POSTITION, HOWEVER, SHELLY O'NEILL CONTINUES TO PRACTICE LAW AND POSSBILY DESTROY OTHER PEOPLE'S LIVES. JUDGE MILLS LANE'S NAME STILL APPEARS ON THE NEW WASHOE COUNTY COURTHOUSE BUILDING IN RENO, NV. JUDGE MCGEE STILL HAS HIS NAME ON THE CHARLES MCGEE JUVENILLE DETENTION CENTER. THESE PEOPLE SHOULD ALL BE IN PRISON BUT THERE NOT. HERE'S YOUR NEXT STORY 60 MINUTES.

[Tonjabrown]

CHAPTER TWELVE THE DNA
On January 19, 1996, Tonja was still waiting to receive a post card from Reno P.D. with a new ID number for her new police report. She had filed the report after Niles Carson failed to call her back. As she waited, the days turned into weeks. She called the Reno P.D. and inquired about her new ID number since the procedure had not changed since the 1995 police report she had filed. She was told that there was no record of filing a new report. She had sent it certified and the receipt was returned and had been signed for by an officer. She was told that all the Reno P.D. had was a closed 1995 case. She called Det. Carson to find out if he knew what had happened to her 1996 case and left a message on his answering machine. Tonja told Det. Carson?s machine that she had not heard from him regarding her 1995 report so she decided to go ahead and file another police report and, although it was signed as received by the Reno P.D., no one had a record of it. She sweetly asked him to please give her a call, wishing she could call him the conniving ************** that she thought he was. This time Carson did call her back and said that he knew where the report was, it was sitting on his desk. He checked into it and contacted Mills Lane and now he was waiting for Lane to become the head of the Court. He explained to her that he had told the entire story to Mills Lane and Lane had instructed him to hold on to the report until Lane became Chief Judge. This is what we decided to do was all that he would say to her. He added that this ?crime? and she could tell by the way he used the word crime with a sneer that he didn?t think this was much more than a waste of his time, was going to be listed as a petty theft. He had not called it a petty theft in the report but, after his conversation with Mills Lane, had determined it was a petty theft because the filters weren?t valuable. Tonja knew that the filters were of grave importance to the case if the Innocence Project became Nolan?s attorney. Tonja next called the office of Judge Mills Lane to determine if he would include her in the information circuit about the investigation. Lane said he could not respond until he received the letter from Det. Carson. Tonja begged Lane to have an outside investigation conducted by the Nevada Department of Investigation. He assumed his famous cocky attitude and explained to her, little lady, that he would not turn this over to an outside investigation. He stated that when he got that letter, he would walk it down to the Court, Judge Charles McGee. Tonja was appalled. My god, he wouldn?t do that, she thought. One of the persons who checked out the evidence was Judge McGee.He could be a suspect. Lane assured her that was exactly what he intended to do. Lane told her to call McGee and set up an appointment. After she got off the phone, she called McGee?s secretary and told her that Judge Lane was going to bring a letter to his office from Det. Carson. Tonja explained that Judge Lane had instructed her to set up an appointment with McGee. After considerable stewing over the entire situation, Tonja believed that she had to follow through with what Lane directed her to do. In a week she called McGee?s office to find out if he had received the letter. Indeed, he had received it and left a specific message for her and that was that he would meet with her only if District Attorney Gammick would also meet. Her next duty was to call Gammick. After her past experience with the D.A.?s office, she didn?t hold out much hope for a warm welcome there.As she expected, Gammick stated that he would not meet with her now or ever and for her to get an attorney. When she related this to the Judge, he stated that he wouldn?t have an ex parte 13 communication without Gammick there. Nolan, on the other hand, wasn?t even mentioned by the Judge as a necessary party for this meeting. Any more work on this investigation was futile, Tonja could see that.
13 Ex parte is the term for a communication between the Judge and one party without all the parties to the matter present. In a contested matter, this is generally a forbidden communication. 12 and half years later we would finally learn the truth about what happened to Nolan's DNA evidence that he wanted tested.
Gammick finally told the truth, something that we already knew and could not prove. They had illegally tested the filters and hid the results from us. Why? because they learned that Nolan was truly innocent of the crime and they could not tell anyone because their actions were totally illegal. This is a story that should be told about what we have been going through for nearly 21 years.

[Tonjabrown]

Pt. 4 3 The Defendant makes this Motion to Compel the test results of the DNA evidence in his criminal file in order to determine if the District Attorney has results of testing done after trial as he stated on September 22, 2008. The Defendant has made a written request for the results of this testing and the District Attorney has denied his request.4 The Defendant has a right to have the results of the testing of his missing DNA evidence from a criminal trial where he was found guilty where no DNA evidence was admitted and because of which he has languished in prison since 1988.
WHEREFORE THE ABOVE-STATED REASONS, the Defendant moves this Court to compel the District Attorney of Washoe County to provide the results of the testing of ///the DNA samples from the criminal file of the Defendant which test results were derived after trial, to the Defendant and his counsel, Robert R. Hager,, immediately. Ralph Heller, a columnist for the Sparks Daily Tribune. Ralph wrote this item for the Tribune:
TAMPERING: Nolan Klein has been in state prison since he was found guilty of robbery and assault in early 1989, but irregularities and unorthodox procedure associated with the prosecution of his case have troubled many people to this day. Now both the renowned Benjamin N. Cardozo School of Law in New York City and a national ACLU official are interested in taking a closer look at things. It appears that certain evidence, stored in an envelope box from which the evidence could be taken for future DNA testing, has been tampered with. Especially intriguing are two filtertip cigarette butts from which the saliva on the filters might later be tested to determine blood type (DNA). But it seems that the filters have been mysteriously removed from the cigarette butts, with no explanation, making such DNA testing impossible. Indeed, I?m told that a report will be forthcoming shortly from detective Jenkins of the Reno Police Department in which mention will be made of the fact that evidence in this case has been tampered with. Meanwhile, Klein?s sister, Tonja Brown of Carson City, has tried her best to interest DA Richard Gammick in this travesty, but without success.

[Tonjabrown]

pt 3 ?Petitioner has been denied his constitutional rights to due process of law due to the unlawful theft, and/or tampering and/or otherwise unlawful disappearance of exculpatory evidence while being retained and preserved under the case, custody and control of state and/or county government officials.? See, Exhibit ?11" at p.8 attached hereto and incorporated herein by reference. On April 7, 1998, an evidentiary hearing was held, see, Exhibit ?12" attached hereto and incorporated herein by reference, and on May 6, 1998, the district court filed its ?Findings of Fact, Conclusions of Law and Judgment? generally concluding that ?the court cannot find that Klein was prejudiced by the loss or disappearance of the cigarette butts? and that Klein had not alleged bad faith on the part of court staff or state agents.? See, Exhibit ?13" attached hereto and incorporated herein by reference. Due to the district court?s mistakes as to the factual basis of its decision throughout the ?Findings of Fact, Conclusions of Law and Judgment? see, Exhibit ?13" attached hereto and incorporated herein by reference, Klein filed his ?Motion to Make Additional Findings of Fact and/or to Alter or Amend Order and/or Judgment? on May 14, 1998, see, Exhibit ?14" attached hereto and incorporated herein by reference, and his ?Exhibits in Support of Motion to Make Additional Findings of Fact and/or to Alter or Amend Order and/or Judgment? were filed on May 15, 1998, see, Exhibit ?15" attached hereto and incorporated herein by reference. On August 24, 1998, the district court issued its final ?Order Dismissing Petition? finding that Klein?s claims were too attenuated. See, Exhibit ?16" attached hereto and incorporated herein by reference. Klein filed a timely appeal, and filed his pro per Opening Brief on December 11, 1998. See, Exhibit ?17" attached hereto and incorporated herein by reference. The District Attorney did not file an opposing brief, and the Nevada Supreme Court?s Opinion affirming the district court is located at Klein v. State, 118 Nev. 305, 43 P.3d 1029 (2002). On September 22, 2008, the Washoe County District Attorney, Richard Gammick, stated during a television news interview that he knew what had happened to the cigarette butts which were the subject of Klein?s 1996 Habeas Corpus Petition, see, Exhibit ?18" attached hereto and incorporated herein by reference, because the County/State tested them, which is contrary to the District Attorney?s 1998 representations to the court that they did not know anything about them other than what happened at trial. See, Exhibit ?12" at p. 11, attached hereto and incorporated herein by reference. On October 29, 2008, Klein appeared before the Nevada Board of Pardons, where as in the 1998 hearing before the district court, once again the Deputy District Attorney when questioned about the missing cigarette filters stated that he did not know anything about that, but assured the Board that Klein could litigate the issue, thus ceasing any further inquiries by the Pardon Board Members. II. The Defendant has a right to all exculpatory evidence. ?The State must disclose all potentially exculpatory evidence if it is material; it is up to the defense to deal with problems concerning the extent to which the evidence can be used or expanded upon both before and during trial.?1 The DNA evidence contained in the cigarette butts left by the perpetrator of this crime can be assumed to be exculpatory since the District Attorney has failed to reveal the results of the testing. If the tests confirmed the Defendant?s guilt, the results would have been immediately presented by the District Attorney. The lack of submission of these results to any counsel representing the Defendant or to the Defendant when he represented himself in pro per support a high probability of the exculpatory nature of the test results. The cigarette butts were removed from the cigarettes in the evidence packet after trial in this matter. The cigarette butts and ***** found in the rape kit were the critical samples of DNA available but too small for accurate testing in 1988. The preservation of those samples until technology was advanced and capable of testing these small samples was crucial to support the innocence that the Defendant has maintained since 1998. The Ninth Circuit has assumed that ?freestanding innocence claims are possible . . .? 2 The Ninth went so far as to order a district court to first conduct testing on any biological evidence and then hold the evidentiary hearing to permit full development of the case supporting a ?gateway? actual innocence claim.

[Tonjabrown]

Pt. 2 of motion. On March 16, 1989, the District Court adjudged Klein, pursuant to a jury verdict, guilty of two counts of robbery with the use of a deadly weapon, one count of burglary, and one count of sexual assault. The Court went on to sentence Klein to serve two seven and one-half (7 ½) year terms for each of the robbery with the use of a deadly weapon counts, five (5) years for burglary and two consecutive life terms for sexual assault with the use of a deadly weapon, although Klein was not charged or adjudged guilty for the use of a deadly weapon on the sexual assault charge. See, Exhibit ?5" attached hereto and incorporated herein by reference. On direct appeal, the Nevada Supreme Court affirmed Klein?s conviction. See, Klein v. State, 105 Nev. 880, 784 P.2d 970 (1989). Thereafter, Klein filed his Petition for Post-Conviction Relief alleging, inter alia, ?trial counsel failed to have blood comparison tests performed on Petitioner?s blood as she stated would be done . . .,? on May 17, 1990. See, Exhibit ?15" at sub-Exhibit ?FF? attached hereto and incorporated herein by reference. Based on this allegation, Klein moved to Compel Evidentiary Testing on February 8, 1991. See, Exhibit ?6" attached hereto and incorporated herein by reference. The State opposed the motion arguing that the sexual assault victim and her husband should not be compelled to allow invasive blood draws, and further that the Washoe County Forensic Crime Lab would not perform any such testing without blood draws from all relevant parties because it would violate lab policy. See, Exhibit ?7" attached hereto and incorporated herein by reference. Klein replied pointing out that the State concedes that testing the ***** sample ?might show that it did not come from Klein,? and if the State were merely to do initial tests that indicated the same blood group as Klein, blood draws from other people would be unnecessary. However, the crime lab would not merely test for blood grouping type without draws from other people involved, and as such, requested that the Court order the Washoe County Forensics Laboratory to do the initial test for blood type, and then only if necessary order blood draws from other people involved. See, Exhibit ?8" attached hereto and incorporated herein by reference. On April 11, 1991, the District Court issued its order denying the motion by refusing to compel the victims to submit to blood draws for evidentiary comparison with other evidence collected by police, and further refused to compel the Washoe County Forensic Lab to vary from its accepted practices and procedures which required blood draws from all possible sources before it would do any evidentiary comparison or analysis. However, the District Court?s order did leave open the future option of submitting the evidence for forensic evidentiary testing and comparison to another independent lab providing that Klein could find a lab that did not require blood draws from the victim or her husband. See, Exhibit ?9" attached hereto and incorporated herein by reference. The Court went on to inform Klein that he would not consider anything submitted by him in pro per as long as he was represented by counsel, which effectively precluded him from pursuing the matter any further at that time, since Klein was represented by counsel until February of 1994. Id. In mid to late 1995, Klein did locate a forensic lab that could conduct DNA testing on the cigarette butts collected at the crime scene through the assistance of the Innocence Project in New York City. Additionally, the lab in California referred by them could conduct such testing without blood draws from either victim or the husband. See, Exhibit ?15" at sub-Exhibits ?Q?, ?HH?, ?II?, ?JJ? and ?KK? attached hereto and incorporated herein by reference. During or about the first week of July, 1996, Klein learned that the cigarette filters collected from the crime scene were missing, and based on this new information he filed his Motion for Discovery Hearing on July 25, 1996, in an attempt to determine where the filters were, what had happened to them, and to determine whether there was any other evidence available for forensic testing and analysis. See, Exhibit ?10" attached hereto and incorporated herein by reference. Klein never received a response or order concerning this Motion. On October 15, 1996, Klein filed his Petition for Writ of Habeas Corpus stating as ground one:

[Tonjabrown]

What more can the innocent do when the illegal acts of others continue to keep the innocent imprisoned? This Motion was filed recently, the judge assigned to the case has order to stay this motion until until another case pending is resolved. That could take anywhere from 3-5 years. Our belief is this, that they want the innocent to die in prison in order to protect the wrong doing of those who are trying to keep the conviction. What is happening within your own state? Or is NEVADA the only state doing this? I don't believe so.
COMES NOW, Defendant, NOLAN KLEIN, by and through his counsel, ROBERT R. HAGER, and moves this Court to require the District Attorney to produce the results of the testing of the DNA as stated by Richard Gammick, District Attorney of Washoe County, that was done on the samples contained in the criminal file of the Defendant. The fact that the DNA was tested was unknown to the Defendant until the statement by Richard Gammick on September 22, 2008, in which he stated that the DNA evidence packet was opened because it had been tested. The DNA packet was not opened until after trial. No results of any testing have been provided to the Defendant nor to his counsel of record heretofore. On October 29, 2008, the Pardons Board considered the case of the Defendant. At the time for the Defendant?s case, the Deputy District Attorney stated in response to questioning by the Chief Judge of the Supreme Court of Nevada about where the DNA evidence was, that the Defendant could litigate that issue. This Motion followed.
I.
Chronology of the Defendant?s request to test the DNA
recovered at the site of the crime and compare it to his DNA.
On October 6, 1988, the Defendant, NOLAN KLEIN (hereinafter ?Klein?) was charged in the Second Judicial District Court with two counts of robbery with the use of a deadly weapon, one count of burglary, and once count of sexual assault. See, Exhibit ?1" attached hereto and incorporated herein by reference. On November 4, 1988, Klein filed his Motion for Discovery and Production of Exculpatory Materials. See, Exhibit ?2" attached hereto and incorporated herein by reference. After conducting a hearing on November 10, 1988, see, Exhibit ?2a" attached hereto and incorporated herein by reference, the Court issued its Discovery Order. See, Exhibit ?3" attached hereto and incorporated herein by reference.
On December 12, 1988, the Court issued a seizure order as the result of the District Attorney?s Affidavit swearing under penalty of perjury that ?samples of the Defendant?s blood, saliva and pubic hairs are necessary for evidentiary analysis and comparison purposes in the pending trial currently calendared for January 23, 1989.? The Affidavit was filed on December 9, 1988, and seizure order with return filed December 19, 1988. See, Exhibit ?4" attached hereto and incorporated herein by reference. There were no such comparison tests or analysis ever attempted in this case. See, Exhibit ?15" at sub-Exhibit ?N?, p. 132-144 attached hereto and incorporated herein by reference. In fact, the State knew there was not enough ***** for comparison prior to obtaining the seizure order from the Court. See, Exhibit ?15" at sub-Exhibit ?P? attached hereto and incorporated herein by reference.
///

[Tonjabrown]

The composite sketch matches that of the prime suspect and not my brother. The testimony of Officer who put together the composite sketch.
WITNESS FRANK TORRES I'll show you what purports to be the third photo line-up prepared by Detective Boxx. Do you find anything unusual b ased upon the statements you took from the two victims? After taking the two victims' statements wherein they state
either brown or dark eyes, do you find it unusual that a detective would put together
a photo line-up of a suspect in this case with every photo having blue eyes, or
purported to have blue eyes?
It's somewhat unusual.
Were you ever contacted by either Bridget S or Theresa R later
wherein they would change their identification?
I don't recall any. The only thing, a call directly after I spoke with Bridget.
Did she change anything?
No.
Did you put that capsulization together for the Sparks Police Department?
I don't believe so.
Is there any information that's inconsistent?
I believe it's all pretty consistent.
On your testimony on Direct, Detective Torres, if you said that the reason
that you put together an Ident-a-Kit or a composite was to get kind of a general idea
of what person looked like for your officers on the street; and then the State asked
you: "Is it close," and you said: "No." What's the point?
Well, the point is it's not a photograph. That's used as a tool, that the
officers on the street can relate to.
And do you believe that composite looks like my client, Mr. Klein?
At this time? Hair aside, and I will give you that people have testified that
his hair was longer when he was arrested; facial features.
To me, right now at this time I would say I don't think so.
That's all the questions I have. Thank you very much Detective.
Sir, if you had a suspect in custody that you wanted to put in a photo line-up
and he had blue eyes, would you put the other five pictures in brown eyes so he'd
stand out or would you try to use all blue-eyes people in the line-up?
In the past witnesses have not been exact on the colors, but if some evidence
would come up that it's so and so and this picture was different, inconsistent with
the rest them, I would use them, yes.
Use all blue eyes?
No. I'm sorry. I thought you meant only one blue-eyed picture.
On the color of eyes, if you had a blue-eyed suspect, would you not also look
for blue-eyed other similar photographs to put in the line-up?
Yes.
You might mix and match, but you wouldn't just leave the . suspect alone with
blue eyes and everyone else with brown, would you?
No, I wouldn't.

[Tonjabrown]

This report on the Police's Prime Suspect was withheld for us and the jury. It was discovered 3 years after the crime. The following police report was filed on May 10, 1988:
On 5/10/88 I was asked by acting Sgt. BEATY to do some follow-up work per Det. Sgt. ZARUBI, on this case. (PAYLESS SHOES.. . .) I was asked to go to the different motels within the area and show them a composite of last nights incident and see if they knew anybody that matched that description to be staying there andI was also looking for a vehicle that was involved in a robbery/kidnap/attempt sexual assault where the two composites match closely. While checking the Abby Hotel located in the 800 blk. of B St., I made contact with a bartender there by the name of Jeff PETTY. I showed Mr. PETTY the three composites that I had and Mr. PETTY advised me that there was an individual matching the description of the composites with the hair from 88-4892 and the facial area of 88-4238. He advised me the individual?s name was ZARSKY, Ricky Lee. I asked Mr. PETTY where Mr. ZARSKY lives, he advised me in #104. In further talking with Mr. PETTY, he gave me a brief description of the individual as being a tanned individual with a mustache that came down to 1/4? pass to the openings to the mouth and further advised me that the individuals description closely matched the descriptions given in the composites. Mr. PETTY then advised me that Mr. ZARSKY had left early this morning with two other friends and he had no idea where he was and that he could be back in his room. I then went to room #104 where I listened and it did not sound like anybody was home. I then returned to the SPD and went to talk to Det. Sgt. ZARUBI and fill him in on what I had found. We then brought Mr. ZARSKY up on SCOPE and ascertained the following: ZARSKY, RICKY LEE, DOB, 11-23-53, POB, Texas, Brown Hair, Brown eyes.
I then recontacted Mr. PETTY at the Abby Hotel to ascertain from him if he knew where Mr. ZARSKY was employed. I was advised by Mr. PETTY that he was a dishwasher at Karls Casino. I then contacted Karls Casino and talked with an individual in Personnel who did advise me Mr. ZARSKY was an employee and was a dishwasher.
Det. BOXX also found out that Mr. ZARSKY works dayshift with Tue. & Wed. off. Det. BOXX and I then returned to the Abby Hotel, Rm. #104, to attempt to make contacted with Mr. ZARSKY. While at the room, Det. BOXX & I made contact with David LITTLE. Mr. ZARSKY?s roommate. In talking with Mr. LITTLE, he advised me that Mr. ZARSKY was not home and when he returned home this morning after working graveyard, Mr. ZARSKY had left with two of his friends. Mr. LITTLE advised us that he left for work on 5/9/88 at approx. 2100 hrs. and did not return home until 5/10/88 at approx. 0830 hrs. Mr. LITTLE advised us that Mr. ZARSKY had planned to give plasma today in Reno at the Reno Plasma Center. Det. BOXX & I then went to Reno Plasma Center located on 2nd St. in Reno to attempt to locate Mr. ZARSKY at the Plasma Center. We again made contact with a Nursing Supervisor and inquired if Mr. ZARSKY was there. The Nursing Supervisor brought us Mr. ZARSKY?s file and told us he had not been there yet today. Reno Plasma also did have a picture of Mr. ZARSKY but it was dated in 1986. The Nursing Supervisor also advised us that the last time Mr. ZARSKY had been in there to give plasma was on 4 of 88. Both of the photographs that I observed from Nevada Plasma & Reno Plasma did resemble the composites that were done in these cases. I then returned to the Abby Hotel and again made contact with Mr. ZARSKY?s roommate, Mr. David LITTLE to inquire how many times, to his knowledge, that Mr. ZARSKY had given plasma. Mr. LITTLE advised me that he only knows of one other time, other than today, that Mr. ZARSKY has given plasma in the last two months. Again Mr. ZARSKY was not at home and Mr. LITTLE had no idea where he was. I then went to the bartending area where I made contact with an individual who identified himself as being the Manager of the area and asked him if he observed Mr. ZARSKY come back would he please notify this Dept.
This is a supplement to case # 88-4892. No further details.

Det. Boxx later claimed to the author that he had turned over all evidence to the DA?s office. O?Neill claimed that all evidence that had been turned over to her by the DA was in the file. This report was not in the file. Either Det. Boxx did not turn it over to the DA or the DA did not turn it over to O?Neill or O?Neill simply ignored it and it never made it to her evidence file.

[Tonjabrown]

I"ve misspoken, because not everybody is as compassionate and understanding as Jennifer. The reason I say this is because, our attorney who represents us on our book contacted the victim to give her the opportunity to read the book and make any comments. It was thru the victim's husband who asked our attorney many questions. One was when he found out that my brother had asked for DNA testing to be done before the trial the husband wanted to know why did my brother want DNA testing? She replied to prove his innocence. He also wanted to know why they were never told the police had another suspect? Before their conversation ended, he said that if Mr. Klein was really innocent it would kill my wife.

Everyone who reads this book has to examine his own beliefs in the justice system. If someone is poor, do we simply not care what happens to them. Do we care if the system is vindictive and prejudiced against a inmates who exercise their right to be heard? In 1996 Nolan was told that if he stopped appealing his case, he would get a parole hearing. In 2004, he was taken before the Parole Board and asked one question, are you still appealing? His answer was yes. He was thanked and he left. According to the records of the Nevada Department of Corrections, Nolan will not be eligible for parole until January 2010. In that same year a Sun Valley man who was considered in category of the worst of the child sex predators was released to return to society. He had no appeals pending.
Comments regarding the persons in this book:
1. Judge Charles McGee. He was given the opportunity to read this manuscript, but declined. In 2003 Charles McGee voluntarily placed himself in rehabilitation for alcoholism. He returned to the bench only to be arrested within four months after his return for driving under the influence right around the Christmas holiday. In 2004 he served a jail sentence for his offense to which he plead guilty of having twice the legal limit of alcohol in his system. He was defended by the other justices of the Second Judicial District Court who championed his judicial position and have allowed him to remain on the bench as the Drug Court Judge. In November 2004, he announced his retirement effective January 2005.
2. Mills Lane. He indicated that he would like to read the manuscript when it was in progress in 2002, but he suffered a stroke in 2003 and did not get an opportunity to read it.
3. The victims: Theresa R., through her husband, demanded that we not publish this book. He stated that she would have to re-live a very difficult time and that she did not want to consider the innocence of Nolan Klein.
Bridgett S. asked that the book not be published after she read her portion of the manuscript. She also stated to the Pardons Board that she did not want Nolan Klein given parole because she would fear for her life.
4. Shelly O?Neill was given the manuscript and made no comment.
5. Ron Rachow was given the opportunity to read the manuscript but declined.
6. An attorney who represents the police officer?s union was given the manuscript, but gave us no comments. Detective Sherman Boxx did meet with us once with his attorney present. He stated that he believed that he had given all the evidence that he had to the District Attorney.

[yesyoucan]

For the past several days, I've read comments of the many people who had, have, or maybe a victim themselves to be mistreated by the criminal justice system. I have read where many has reached out for help, with no one assisting. I can relate because I am still fighting to uncover the real criminals; prosecutors, defense attorneys, and law enforcement in my situation. I have said several times previously, but privately. I'm sure many has reached out to civil rights organizations; NAACP, Operation Push, National Action Network, Churches, the ACLU and other organizations who either don't care or their case load is overwhelming with claims of innocence. It is time for every INNOCENT person in America family members, friends, and community to come together in a Washington, DC in a March, Sit in or whatever it takes to put a face to this MISCARRIAGE OF INJUSTICE. The world need to see how many of us it is, it's not just ONE person but thousands. It would be wonderful to have every man and women , the 233 persons who have been exonerated to lead us in our peaceful rally of injustice.

[Ms_Murphy]

You know what, I do not "BLAME" Jennifer or Ronald ... it was a "MISCARRIAGE OF JUSTICE" BY OUR CRIMINAL JUSTICE SYSTEM; and YES, I realize "EVERYTHING" and "EVERYBODY" has IMPERFECTIONS! However, "MISTAKES" should NOT BE "PERPTUAL" THROUGHOUT OUR NATION! It should NOT be "TOLERATED" in NO WAY, SHAPE or FORM; how "SIMPLE" is that???! I am quite "SURE" numerous, "INNOCENT VICTIMS" have spent "LIFE" in "PRISON," or either "DIED NATURALLY," or by the "DEATH PENALTY" in this "COUNTRY," due to a "PERVERSE and INDIFFERENT" CRIMINAL JUSTICE SYSTEM! This is what BOTH "SADDENS and ANGERS" me in general about "SITUATIONS" like Jennifer Thompson's Story!!!
AND SO THIS STORY OVERLAPS WITH "WHO" I AM ... being AFRICAN AMERICAN (not to exclude other PEOPLE OF COLOR), I "KNOW" how we get "PERSECUTED" for "SIMPLY" BEING WHO WE ARE ... and I am NOT JUST "SAYING" SOMETHING JUST TO BE "SAYING" IT, because "MY PEOPLE" have "LIVED" it EVERY "SINGLE" DAY OF OUR LIVES, FOR BEING WHO WE ARE here in AMERICAN SOCIETY! THERE is NO "JUSTICE SYSTEM" for a SUPPOSEDLY - INFERIOR, RACE of PEOPLE! OUR ONLY "JUSTICE" IS "GOD ALMIGHTY," or SOME MAY "THINK" IT'S "BARACK OBAMA," but he is just A MAN! AMERICAN SOCIETY IS A CONSTANTLY GROWING, HETEROGENEOUS SOCIETY; ALTHOUGH from an "AMERICAN CRIMINAL JUSTICE PERSPECTIVE" it is a CAPITALIST SOCIETY which READILY FOCUSES on "BLACK-AND-WHITE ISSUES" while other SIGNIFICANT ISSUES ( other racially ethnic people) are being OVERLOOKED! AND while PEOPLE are sitting back TALKING about "CHANGE," OH "CHANGE" IS GONNA' COME ALRIGHT, when "JERUSALEM" comes down from the "SKY" and "MANKIND" IS JUDGED FOR THEIR ATROCITIES! BECAUSE AS SURE AS THE "SKY is BLUE," "MANKIND" IS GOING TO HAVE TO PAY FOR THEIR SINS - SOONER OR LATER!!!

[elmer4015]

Treason is the only crime defined in the Constitution. Conviction requires the testimony of at least two witnesses to the same act. There is a mathematical reason for this.
Suppose the probability that a witness will falsely identify an innocent person is p.
Most people would say the probability the person is guilty is 1 - p.
If for example p = .001 that is one in a thousand times the witness is incorrect then people would say the probability the person is guilty is 99.9%
THIS IS INCORRECT.
Suppose there are N possible people who could have committed the crime.
Then the probability P that the identified subject is actually guilty is given to high approximation by
P = 1 / [ 1 + N p ]
If for example N were 100 and p = .001 then P = 91% or the probability the person is actually innocent is about 9%. Do we convict or execute on that basis. If N were 1000
P would become 50%.
None of the above should be read to say rape is not a horrible crime. The solution should be to get as much physical evidence as one can. This would reduce the value of N the number of possible suspects and thus increase P.

[Tonjabrown]

I have to defend this woman. In her heart and sole she honestly believed Mr. Cotton was the right man. Let me ask you this. If you or your loved one had been raped and the suspect was caught and he went to trial and was found guilty, wouldn't you be feeling the same way Jennifer felt? I certainly would. Years later would pass and then you would learn they have the wrong man. How would you feel then? Probably the same as Jennifer.