CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Sunday, August 17, 2008

DNA testing major factor in proving innocence, convicting offenders

Nevada is once again in the bottom tier of progressive thinking.

A recent USA Today story identified the Silver State as among 25 in the country that lack requirements to preserve DNA evidence. This, despite a number of dramatic exonerations based on the critical biological material, the story said.

The Innocence Project, a non-profit organization dedicated to freeing wrongly convicted people through DNA testing, claims that since 1991, 218 defendants convicted of serious crimes of violence such as some form of sexual assault or involvement in a murder, were exonerated by DNA. Some had been on death row.

DNA evidence, however, can be a double-edged sword, assuring the convictions of those who have committed heinous offenses.

In Carson City, DNA evidence cinched the arrest and the conviction 25 years later in the sexual assault and murder of Shelia Jo Harris whose body was found in her Lompa Lane apartment.

The 18-year-old reining Miss Douglas County had been beaten, sexually assaulted and strangled in 1982.

David Winfield Mitchell, a citizen of Trinidad and maintenance man at Harris' apartment complex, was arrested as a suspect but released because of a lack of physical evidence.

Later, at the behest of investigators who had tracked Mitchell to New York where he had moved with his family, then-District Attorney Bill Maddox and now a District Court judge, prepared an affidavit for a search warrant for blood and other samples from Mitchell, and the evidence was obtained.

The hitch, however, was that DNA testing was unavailable at the time, and when Maddox's successor, District Attorney Noel Waters charged Mitchell with the crime, the charges were dismissed, again for lack of evidence.

By the year 2000, genetic fingerprinting, as DNA testing is often referred to, was in common use, and Harris' clothing, still preserved by the Sheriff's Department, was tested for physical evidence. Bingo. Compared to the hair and bodily fluids obtained earlier from Mitchell, a match was made.

He was extradited from Trinidad, tried and convicted of the Harris crime.

"The physical evidence" in the case "was around for a long time," said Maddox, "so we must be preserving evidence" in Carson City. [Mark Godsey]

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Taken from the Nevada Appeal October 30, 2008. Nolan Klein is my innocent brother. "And the board denied Nolan Klein, who was convicted of sexual assault some 19 years ago. Attorney Robert Hager raised serious questions about the evidence in that case saying the district attorney and sheriff’s office have allowed cigarette butts with DNA evidence on them to disappear from the evidence despite Klein’s request they be maintained so they could be tested.

Klein has always maintained he is innocent of the crime.

Hager said the disappearance of the evidence is especially serious in the wake of a recent TV appearance by Washoe District Attorney Dick Gammick in which he told an interviewer Klein’s evidence was tested.

“Where is that report?” Hager demanded, saying it could exonerate Klein of the crime. “It would either be exculpatory or incriminating.”

After the denial, Hager said the issue will be raised in Klein’s ongoing federal case."

Contact reporter Geoff Dornan at or 687-8750.

I've been attending Nevada's "The Advisory Commission on the Administration of Justice" hearings that was established during our 2007 Legislature.
Below is my

This is my proposed recommendation to the proposed DNA bill that is being considered. Below is the written recommendation on the proposed DNA bill that Justice Hardesty asked me to write and submit through you.

The proposed DNA bill. In the UNLV Appendix A, please change the word the Court may to the Court MUST.

On Appendix B - The INDEX TRACKING CARDS, are the cards that the person in charge of the evidence uses in order to keep track of who and when the evidence was seen and where it went to. The Chain of Custody Records are attached to the exhibit. These must be photocopied to, because, if one looks at the exhibit and is not familiar with the workings of the Evidence, it would appear that the evidence had remained in the Evidence room after trial, however, this may not be the case. It is the INDEX TRACKING CARDS that actually show what is happening to the evidence. It would be these INDEX TRACKING CARDS that would have to be produced for court in the event that something happened to the evidence whether it was accidental or intentional.

3C Within 30 days, submit a copy of the inventory, ADD: "The inventory MUST include, photographs and photocopies of the evidence and a photocopies of the "INDEX TRACKING CARDS" and the Chain of Custody Records that are attached to the exhibit sent to the petitioner's attorney, the petitioner, the District Attorney, and the Court."

3D ADD: "When the evidence is returned after being requested, the evidence must be compared to the chain of custody records that are attached to the evidence. The evidence will then be photographed and photocopied for comparisons to the previous photographs and photocopies that had been requested. Each time the evidence is requested for either court or future testing, the evidence must follow the same procedure outlined in 3C.

3E It was mentioned that the judge would have discretion on whether to grant testing.
ADD: In the event that the judge has the discretion and denies the Petitioner access to DNA evidence testing, the Petitioner may have DNA testing conducted, at the Petitioner's own expense.

3F ADD: If the Petitioner incurs all cost for DNA testing. The Petitioner may seek an Independent Forensic Lab either inside or outside the State of Nevada to conduct the testing. The Petitioner incurs all cost in the event the court denies his request for DNA testing.

3G ADD: If the court grants DNA testing to be conducted the County will incur all the costs.

3H. ADD: With the exception of a felony Sex offense or homicide case, "The Court shall ask the defendant if he or she plans to pursue DNA testing in the future at their own expense." This should cut back on preserving all felony cases other than Sex Offenses or homicide cases.

Tonja Brown
Tonja Brown commented on Agenda Item VI B and VI D. She submitted testimony for the Commission. (Exhibit P) She submitted a proposed bill dealing with DNA evidence and wrongful convictions. She requested the Commission recommend the bill to the 2009 Legislature. She said the bill entitled an inmate to have DNA testing at his own expense. She said her other item of discussion, Agenda Item VI-D, was eyewitness identification. She provided a large packet of exhibit material for the Commission. She asked the Commissioners to look at the photo lineup included in her materials. Ms. Brown read further statements from her exhibits.
Chair Hardesty said the Commission had Ms. Brown’s material and he asked her to make a policy issue. Ms. Brown recommended the Commission needed to study misidentification and recommend to the Legislature they do a case study.

The documents proving that Mr. Klein is innocent of the crime can be found at the link below. In the meantime the District Attorney has admitted that they tested the DNA evidence. We will be filing a writ this week and taking it back into court and make the DA produce the results from years ago.

Posted by: Tonja Brown | Jan 6, 2009 5:34:25 AM

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