RENO - The woman who claims her deceased brother was wrongly convicted because Washoe prosecutors hid evidence got her hearing in court Thursday.
Washoe District Judge Pat Flanagan took Tonja Brown's petition asking him to call for a grand jury and state bar investigation under submission, promising a decision in about two weeks.
Lawyer Gabriel Raviv told Flanagan that prosecutors who convicted Nolan Klein of sexual assault in 1988 "willfully concealed exculpatory evidence which we maintain would have resulted in acquittal at trial or reversal on appeal."
That evidence, which Raviv argued would have helped clear Klein, includes cigarette butts from the scene where a Sparks shoe store employee was raped - which have since disappeared from the evidence - and a police officer's report that identified a potential suspect who Brown said better fit the description of the rapist than her brother.
Raviv said the law requires "all evidence favorable and unfavorable to the case" to be turned over to defendants.
"It was not an oversight. It was not negligence. It was willfully concealed," Raviv told the judge.
He is seeking a grand jury investigation into District Attorney Dick Gammick and the prosecutors who handled the case over the years.
But Deputy DA Paul Lipparelli said that, even if the charges of concealment were true, there is no available remedy the judge could order because Klein died a year ago after 22 years in prison.
He argued it would be completely appropriate for Brown to take her charges to the State Bar herself and said that, as for the grand jury, "this court doesn't have the authority to compel a grand jury to do anything."
"She's asking the court to take a look at everything that's been done over the past 22 years and see if there's anything wrong with it," Lipparelli said. "That would turn civil courts into super-review courts."
Lipparelli also said there is clear evidence in the case file that Klein's lawyer was aware of the other suspect and decided against using that in the defense.
He said the issues raised by the challenge already have been reviewed both in district court and by the Nevada Supreme Court, where they were described as "an extremely minor matter."
Flanagan pointed out there were two victims at the store, one of whom was raped, and that both were described as very convincing when they identified Klein as the assailant.
He joined Lipparelli in saying Brown has every right to take the case to the State Bar but added he only has the ability to rule on prosecutorial misconduct that occurs in his court.
"You're asking this court to find that individuals 22 years ago violated their constitutional and professional obligations to the court," Flanagan said. "It hasn't occurred in front of me. It occurred in front of Judge (Charles) McGee."
He took the case under submission.