Judge John Enlow of the Portage County Common Pleas Court should not have to think long. He should move quickly to grant the retesting of DNA evidence in a 1990 double murder case. He should go further and apply the sophisticated testing to additional evidence, all in the pursuit of addressing growing and substantial doubt about the conviction of Tyrone Noling for the killings.
On Thursday, the Ohio Supreme Court overturned an earlier court decision denying the new DNA testing. Justice Judith Lanzinger, writing for the 5-2 majority, found that the lower court failed to consider the Noling request in light of legislative action in 2010 expanding the definition of a “definitive” DNA test. Lawmakers had in mind adding to the tools for serving justice, allowing the retesting if it could show new, relevant information and even identify the real perpetrator.
Put another way: Would the information gained from the testing carry the strong likelihood of changing the outcome of the trial?
Noling has been held on death row the past 17 years. A jury convicted him of killing Cora and Bearnhardt Hartig in their house in Atwater Township largely on the testimony of three friends, supposedly involved in a robbery that turned into murder. All three soon recanted, one on the witness stand. They cited coercion by the prosecution as the reason for their false accusation, one of the friends age 16 at the time.
No physical evidence links Noling to the crime. He passed a polygraph test. His .25 caliber gun did not match the murder weapon. The crime scene lacked signs of a robbery, Noling and his friends having broken into houses in the Alliance area. The Portage sheriff looked at the young men as possible suspects and then dismissed the idea.
Investigators tested a cigarette butt on the Hartig driveway. A chemical analysis excluded Noling and the others.
Just four years ago, attorneys for Noling learned about an alternative suspect. They discovered information that had not been shared with the defense at trial, that a young man had told police that his “foster brother” admitted to the killings. That alternative suspect, Daniel Wilson, lived near the Hartigs, and eventually killed a young woman, the state executing him in 2009.
That explains why Noling wants more sophisticated DNA testing applied to the cigarette butt — to see whether traces of Wilson show up. It points to the compelling logic behind testing other evidence from the crime. And if there is a match for Wilson? Hard to see how that would not alter the theory of the case and the outcome of a trial.
What would the prosecution have? Recanted testimony. No physical evidence pointing to Noling yet DNA results locating Wilson at the scene, a man who actually committed murder.
Tyrone Noling deserves to have the new DNA testing conducted. And so do Portage County residents and other Ohioans. Follow this case, and doubts grow not just about the Noling conviction. They have formed around the conduct of the prosecution. In that way, the DNA testing amounts to holding public officials accountable for their decision-making. The case against Noling long has been eroding. Now Judge Enlow has an obligation to act in a way that seeks to protect Ohio from a horrible error, putting an innocent man to death.