In June 2011, the federal appeals court in Cincinnati said no to Tyrone Noling. The resident of death row had asked the court to allow DNA testing driven by new evidence in a case that dates to 1990, a double murder, Cora and Bearnhardt Hartig killed in their house in Atwater Township.
Judge Boyce Martin explained that according to the law, there wasn’t room for granting the request. The ruling affirmed the district court. Yet, in doing so, it proceeded to take a revealing detour — pausing “for a moment to highlight our concern about Noling’s death sentence in light of questions raised regarding his prosecution.”
Martin devoted a passage to the doubts that hover, and increasingly so, about whether Noling killed the Hartigs. The judge reminded that Noling was not indicted until five years after the crime “when a new local prosecutor took office.” He added that the accusers have recanted their stories and “now claim they only identified Noling as the murderer … because they were threatened by the prosecutor.”
Know, as the judge emphasized, that “there is absolutely no physical evidence linking Noling to the murders, and there are other viable suspects that the prosecutor chose not to investigate or did not know of at the time.” Finally, Martin noted that “given the serious questions that have been raised regarding Noling’s prosecution, we wonder whether the decision to end his life should not be tested by a higher standard.”
The appeals court ruling came to mind as the Ohio Supreme Court heard oral arguments last week, Noling and his attorneys continuing to pursue DNA testing of what could be decisive evidence. Again, the question before the court was narrowly drawn — whether the legislature in expanding opportunities for such testing two years ago opened the door for Noling.
At times, the give and take among the justices and attorneys plunged into a fog of jurisdictional and statutory interpretation. Neither should be diminished. Judges and justices have their jobs of applying the law.
Yet, at other turns, something akin to a “higher standard” seemed at play, the hearing reflecting what Judge Martin described as the “worrisome scenario” of the Noling case.
The prosecution has its version of events, relayed by Victor Vigluicci. Among other things, he argued that Noling had confessed, engaging in a jailhouse fight with a co-defendant over responsibility for the crime. He described the request for testing as an attempt to delay an execution date.
Yet Noling has not confessed. He passed a polygraph test. He did take part in two home robberies in Alliance, along with three friends, around the time of the Hartig killings. The Portage County sheriff looked at the four as potential suspects and concluded: “It just didn’t fit.”
The crime scene at the Hartig house was strikingly different, Mr. Hartig with his wallet, Mrs. Hartig still wearing her rings, nothing of value missing. Noling did have a .25 caliber gun, the type of weapon used to murder the Hartigs. Yet bullet tests revealed it didn’t match.
What altered things is what Judge Martin indicated, an aggressive push by the prosecutor’s office. An investigator aimed to turn the boys, starting with the youngest, age 16, telling him (falsely) that authorities had his DNA and an eyewitness, employing other tools of coercion. Their fingers eventually pointed to Noling, leading to the guilty verdict in early 1996, even though their details proved inconsistent and one recanted on the witness stand. The others recanted later.
Not until 2009 did attorneys for Noling learn via a public records request that the foster brother of an alternative suspect told police that his brother killed the Hartigs. Somehow that information wasn’t provided to the defense at trial.
That alternative, Daniel Wilson, eventually murdered a college student in 1991, the state executing him three years ago. The authorities weighed Wilson as a suspect in Hartig case. A chemical analysis of a cigarette butt on the Hartig driveway excluded Noling and his companions. It did not exclude Wilson.
Which bring us to what Noling and his attorneys want from the justices: Apply today’s highly sophisticated DNA testing to the cigarette butt. And if it matches Wilson? The prosecution argues that it would matter little, and certainly would not be “outcome determinative.”
Yet common sense suggests the compelling way the pieces would fit together. No physical evidence. Recanted testimony. The foster brother recorded in the police report. Then, a DNA test linking Wilson to the crime scene. Hard to believe that would not carry the strong probability of changing the outcome of the trial.
You can bet the prosecution would have championed loudly the results if they pointed to Noling.
All of this makes obvious the value of the DNA analysis, and it’s just what lawmakers had in mind when they acted. It also suggests that higher standard, the case against Tyrone Noling having frayed for years, an execution far from fitting. As Judge Martin reminded: “As long as our justice system depends on men and women to make decisions, it will invariably make mistakes.”
The challenge is to correct them before it is too late.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at email@example.com.