Tonja's Reply Brief was filed on July 7th, 2010.
Waiting for Judge Flanagan to issue an Order. I've asked for the conviction to be overturned, members of the DA's office Office and their predecessors, (Dorothy Nash-Homes) be prosecuted and disbarred. I've asked for a Grand Jury.
http://www.washoecourts.com/index.cfm?page=casedesc&case_id=cv10-01057&Submit=Submit
Below is the Reply. The Exhibit list consisted of 66 exhibits or rather in excess of 300 pages of evidence that was withheld from the Defense 22 years ago.
1. Tonja Brown, Executrix/Administrator
Estate of Nolan Klein
2. 2907 Lukens Lane
Carson City, NV 89706
3. ______________________________
IN PROPER PERSON
4.
5. IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA
6.
7. ESTATE OF NOLAN KLEIN Case No: Cv10-01057
Petitioner,
8. Dept. No. 7
9. V
10. WASHOE COUNTY DISTRICT ATTORNEY’S
JOHN AND JANE DOES A – Z
11. PARDONS BOARD
ATTORNEY GENERAL KATHRINE CORTEZ MASTO
12. JOHN AND JANE DOES A – Z
13. _______________________________________________/Respondents
14.
15. REPLY BRIEF IN SUPPORT OF PETITION IN WRIT OF MANDAMUS
16. REPLY TO MOTION TO DISMISS PETITION
17.
18.
19.
20. Comes now, Petitioner, NOLAN KLEIN, by and through his Administrator/ Executrix
21. Tonja Brown, and pursuant to the Court’s May 18, 2010 and May 28, 2010 orders appears on
22. behalf of the Estate of Nolan Klein and hereby Reply’s to the Washoe County District Attorney
23. Richard Gammick’s response to the Petition for Writ of Mandamus in the above entitled matter by moving
24. the court to grant said Petition and deny respondents Motion to Dismiss Petition.
25.
26.
1. POINTS AND AUTHORITIES
________________________
2.
3. Mr. Gammick’s response is based in entirely technicality that completely avoid the issue of the deliberate
4. violation of Nolan Klein’s right to exculpatory evidence by the intentional and unlawful concealment
5. of BRADY MATERIAL pre-trial.
6. The characterization of Mr. Klein’s convictions having been upheld and the disingenuous and
7. inaccurate depiction of Mr. Klein having “exhausted” his post-conviction remedy’s ignore the fact the
8. Courts that considered those matters, like Mr. Klein, were unaware of the deliberate concealment and
9. failure to produce exculpatory evidence. That evidence, including the specific handwritten notation “NOT
10. FOR DISCOVERY” “NO SHOWING OF MATERIALITY” first came into the possession of Mr. Klein on
11 or about June 10, 2009 when his attorney Robert R. Hager was allowed pursuant to court order to
12. examine the entire file that had been in the possession of Mr. Gammick for the last 15 years allowing Mr.
13. Gammick to now use defensively state and federal court ruling that, like Mr. Klein’s conviction, were the
14. result of a continuous pattern prosecutorial misconduct lasting more than 20 years, would result in this
15. Court condoning actions by Mr. Gammick that are in violation of Mr. Klein’s fundamental constitutional
16. rights and are offensive to acceptable standards of justice in Nevada and the United States.
17. In response to the argument Petitioner pursue the Petition unless represented by counsel.
18. Petitioner the duly appointed Personal Representative of Mr. Klein, acting in his place in stead Petitioner
19. not acting on behalf of “Entity” such as a corporation Trust, but instead as the Personal Representative of
20. a natural person. Petitioner empowered as the Representative to pursue the relief requested much the
21. same as if Petitioner were seeking an injunction to prevent the unauthorized use of Mr. Klein’s image or
22. intellectual property.
22. As for the notarization of the Petition the Affidavit satisfies the purpose of the requirement that
23. the Petition be submitted under Oath and under penalty of perjury. The fact that Mr. Gammick exclusively
24. devotes his response to technical argument such as the Sworn Affidavit being filed
25. separately from the Petition and some of the contents Petition being single then doubled spaced is
26. consistent with the manner in which Mr. Gammick and his predecessors have deprived Mr. Klein of fair
27. adjudication of the issues of more than 20 years in the Washoe County District Attorney’s Office. Had Mr.
28 Gammick simply produced the exculpatory evidence rather than deliberately conceal it, Mr. Klein would
1. not have been deprived of his fundamental constitutional right to a fair trial and the State and Federal
2. courts would not have been required to make rulings on post-conviction matters without benefit of that
3. exculpatory evidence.
4. Anytime there is a violation of a fundamental constitutional right the result is “Structural Error.”
5. The deliberate concealment of exculpatory evidence by Mr. Gammick and his predecessors in the
6. Washoe County District Attorney’s Office violates a fundamental constitutional right of Nolan Klein,
7. thereby resulting in Structural Error. NEDER V. UNTITED STATES, 527 U.S. 1,7,119 S.Ct. 1827, 144
8. L.Ed. 2D 35 (1999), Mazzan,993P.2d at 37-38, 42-42 and FN1-3, State of Nevada v Ruben
9. babayan.
10. The Respondents argues that there is no authority for using mandamus to force reporting
11. of alleged prosecutorial misconduct. This Petition for Writ of Mandamus was submitted under the
12. ADKT 427 new regulation it clearly defines what a lawyer or Judge must and is required to do.
13. This case was filed with in the Honorable Judge Adams Court because this
14. case had been pending in Judge Adams court. Unbeknownst to Petitioner it had been
15. closed due to Mr. Klein’s death at the time of filing. It was the clerk’s office who made
16. the decision not to file the Petition under Judge Brent Adams court because the case had
17. been closed due to Mr. Klein’s Death. The Petition was then re-submitted and filed under
18. the Estate of Nolan Klein. A filing fee was paid. It was then transferred to
19. Department 7 the Honorable Judge Patrick Flanagan’s Court. It was not the Petitioner
20. that had the Petition transferred and thereby Petitioner is not responsible for which department
21. this Writ of Mandamus was assigned. In essence, whether it be the Honorable Judge Brent
22. Adams, Judge Patrick Flanagan, or another sitting Judge who received this Petition for Writ of
23. Mandamus would became aware of the information outlined within the Petition and is now
24. required to take action based on the new ADKT 427 regulation. The Honorable Judge Patrick
25. Flanagan received the information and now has knowledge. ADKT 427 does not define how this
26. information is reported or received by the Judge, only that once a Judge receives this information
1. he is required to take action.
2. (A) “A Judge having knowledge that another judge has committed a violation of the Nevada
Rule of professional Conduct that raises a substantial question regarding the lawyer’s honesty,
3. trustworthiness, or fitness as a judge in other respects shall inform the appropriate authority.”
4. (B) “A Judge having knowledge that a lawyer has committed a violation of the Nevada Rule of professional Conduct that raises a substantial question regarding the lawyer’s honesty,
5. trustworthiness, or fitness as a lawyer in other respects shall inform the appropriate authority.”
6. (C) “A judge who receives information indicating a substantial likelihood that another
judge has committed a violation of this Code shall take appropriate action.”
7. (D) “A judge who receives information indicating a substantial likelihood that a lawyer has
committed a violation of the Nevada Rules of Professional Conduct shall take appropriate action.
8. COMMENT
9. [1]. “Taking action to address known misconduct is a judge’s obligation. Paragraphs (A) and
10. (B) impose an obligation on the judge to the appropriate disciplinary authority the known
11. misconduct of another judge or a lawyer that raises a substantial question regarding the honesty,
trustworthiness, or fitness of that judge or lawyer. Ignoring or denying known misconduct
12. among ones fellow judicial colleagues of the legal profession undermines a judge’s responsibility
to participate in efforts to ensure public respect for the justice system. This Rule limits the
13. reporting obligation to those offenses that an independent judiciary must vigorously endeavor to prevent.”
14. [2] “A judge who does not have actual knowledge that another judge or lawyer may have committed misconduct but receives information indicating a substantial likelihood of such
15. misconduct, is required to take appropriate action under paragraphs (C) and (D). Appropriate action may include, but, is not limited to, communicating directly with the judge who violated
16. this Code, communicating with a supervising judge, or reporting the suspected violation to the appropriate authority or other agency or body. Similarly, actions to be taken in response to
17. information that a lawyer has committed a violation of the Nevada Rules of Professional Conduct may include but are no limited to communicating directly with the lawyer who may
18. have committed the violation or reporting the suspected violation with the appropriate authority or other agency or body.”
19. Based on the new regulation set forth by the Nevada Supreme Court now raises questions
20. pertaining to the protected laws of the State of Nevada. The honesty, trustworthiness, and
21. ethical behavior that has been set in place under The Rules of Professional Conduct that all
22. licensed attorney’s must obey. It also raises the questions when compared to the ordinary
23. citizen is the licensed attorney’s within the State of Nevada above the law? If the answer is
24. “never” then the court must take the appropriate action against those named in the Petition. 1.
25. The Nevada Revised Statutes are clear and nowhere in any of the Nevada Revised
1. Statutes does it state that it is acceptable for a licensed attorney to be treated differently than the
2. ordinary citizen when it comes to committing crimes against public justice or any other crime
3. one might commit. If the ordinary citizen were to obstruct justice, conspire to conceal a crime,
4. etc. as alleged in the Petition would the ordinary citizen be prosecuted? If the answer is “yes”
5. then the Court must take the appropriate action according to our laws. Does The Code of
6. Professional Conduct supersede the laws of the State of Nevada? If the answer is “no” the Court
7. must take the appropriate action. Based on the Petition had the Respondents named in the
8. Petition breached their duty of integrity, honesty, trustworthiness, credibility and fitness? If the
9. answer is “yes” then the court must take action against those named in the Petition are in
10. violation of The Rules of Professional Conduct.
11. Page 10 line 2 of the Respondents response. “We can find no law that requires a Nevada
12. District Court Judge to commence a criminal proceeding.” The Court has inherent authority and
13. the duty in this case to overturn the conviction and refer this matter to the Grand Jury or other
14. authority of determination of whether a criminal proceeding should be commenced.
15. NRS 34.170 Writ to issue when no plain, speedy and adequate remedy in law. This writ
16. shall be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary
17. course of law. It shall be issued upon affidavit, on the application of the party beneficially
18. interested.
19. NRS 34.520 If charge defectively set forth in process or warrant, judge shall examine witnesses and discharge or recommit person. If it shall appear to the judge, by affidavit, or upon hearing of the matter, or
20. otherwise, or upon the inspection of the process or warrant of commitment, and such other papers in the proceedings as may be shown to the judge, that the party is guilty of a criminal offense, or ought not to be discharged, the judge,
21. although the charge is defectively or unsubstantially set forth in such process or warrant of commitment, shall cause the complainant, or other necessary witnesses, to be subpoenaed to attend at such time as ordered, to testify before
22. the judge; and upon the examination, the judge shall discharge such prisoner, let the prisoner to bail, if the offense be bailable, or recommit the prisoner to custody, as may be just and legal. [22:93:1862; B § 370; BH § 3692; C §
23. 3764; RL § 6247; NCL § 11396]
24. NRS 34.220 If answer raises essential question of fact, court may order jury trial. If an answer is made, which raises a question as to matter of fact essential to the determination of the motion, and affecting the substantial rights
25. of the parties, and upon the supposed truth of the allegation of which the application for a writ is based, the court may, in its discretion, order the question to be tried before a jury, and postpone the argument until such trial can be
26. had and the verdict certified to the court. The question to be tried shall be distinctly stated in the order for trial, and
1. the county shall be designated in which the same shall be had. The order may also direct the jury to assess any
2. damages which the applicant may have sustained, in case they find for the applicant.
3. ___________________________________________________
6. CONCLUSION
7. Based on the facts contained within the above entitled action and the Petition for Writ of
8. Mandamus the Petitioner has provided adequate legal bases to have a hearing held and to have
9. Mr. Klein’s conviction overturned and those named in the Petition to be prosecuted and referred
10. for investigation of professional misconduct. Furthermore the Respondents Motion should be
11. denied.
12. WHEREFORE, the Petitioner prays as follows:
13. 1. The Court grant that a hearing to be held; and
14. 2. The court grant the Petition for a Writ of Mandamus.
15.
16. AFFIRMATION PURSAUANT TO NRS 239B.030
17. The undersigned does hereby affirm that the preceding document does not contain the
18. social security number of any person.
19. Dated this ___________ day of July 2010
25.
20.
____________________________________
21. TONJA BROWN, Administrator/Executrix
2907 Lukens Lane
22. Carson City, NV 89706
775-882-2744
23.
____________________________________________________________________________________
Footnote: Washoe County District Attorney Richard Gammick can be used as the prime example. On June 23, 2010 I presented to The Advisory Commission on the Administration of Justice a proposed recommendation of Nolan’s Law. I also provided to The Advisory Commission where in Washoe County District Attorney Richard Gammick was substituting in for one of the Commissioners on The Advisory Commission the documents of one ADA Steven Barker who had been sanctioned/reprimanded by judges, the Nevada Supreme Court and the State Bar of Nevada in different cases for withholding exculpatory evidence and violating Brady v Maryland. They were informed that Mr. Gammick continued to employ Mr. Barker thereby, condoning his actions to violate ones fundamental constitutional right to receive a fair trial. When the Chairman of the Commission, Assemblyman William Horne asked the Commission, including Mr. Gammick, if they had any questions of Ms. Brown, Mr. Gammick said “nothing”