If Tyrone Noling faced trial today, he would be found not guilty. Actually, the strong likelihood is, a trial would not go forward, prosecutors left with the conclusion drawn more than two decades ago by the Portage County sheriff: The idea that Noling and three other young men were responsible for the murders of Cora and Bearnhardt Hartig in Atwater Township in April 1990 “just didn’t fit.”
Yet Noling has been sitting on death row since 1996. His case has evolved into another frustrating judicial chapter of form trumping substance. Common sense indicates the case against him has collapsed. Still, his attorneys must find a path through the law before the courts will declare as much.
On Thursday, his attorneys will be part of a hearing conducted by Judge John Enlow of the Portage County Common Pleas Court to weigh Noling’s request for DNA testing of potentially decisive evidence — a cigarette butt, shell casings and ring boxes. These items have not been subjected to the current more sophisticated DNA testing. The results could change the outcome of the case.
Or, put a different way, the request for testing reflects just what state lawmakers intended when they rewrote the law not too long ago to take better advantage of new technology in helping ensure that justice is achieved.
In May, no less than the Ohio Supreme Court ordered that the lower court take up the request.
The DNA testing won’t be used to exclude or include Noling. An earlier, primitive test of the cigarette butt, found on the driveway, already has excluded him. Rather, the test will go to the question: If Noling didn’t kill the elderly couple with a handgun, who did?
The prosecution version of the murders tells of a home robbery gone bad. True, Noling and his friends were involved in a few thefts and robberies at the time. Yet those incidents were in Alliance, where the young men lived.
More, the crime scene at the Hartig house differed. Nothing was taken. The couple appeared to know the killer, the fatal shooting at the kitchen table.
What the jury didn’t learn at the trial is the real possibility of an alternative suspect. Prosecutors failed to disclose a 1991 saliva test of the cigarette butt to see whether there was a match with Daniel Wilson. The results revealed that Wilson could not be excluded.
Who is Daniel Wilson?
He lived not far from the Hartigs. A year after the Hartig killings, he murdered a young woman in Elyria, eventually receiving the death penalty, the lethal injection delivered four years ago.
When he was age 14, Wilson broke into the house of an elderly man, who fell, breaking his hip. Left there, he soon died.
Prosecutors also failed to disclose that in 1990, Nathan Chesley, a foster brother of Wilson, stated that Wilson admitted he killed the Hartigs. Chesley holds to his claim. Imagine how the trial might have changed, more linking Wilson to the crime scene than Noling.
What Noling and his attorneys want is to test for the presence of Wilson, a request that fits fully a search for the truth, not to mention Ohio avoiding the execution of an innocent man.
For its part, the Portage prosecutor’s office, led by Victor Vigluicci, opposes the request. At the Supreme Court arguments, Vigluicci suggested the Chesley material was a recent concoction. No, it dates to early in the investigation.
Vigluicci asserted that Noling confessed. Not quite. Chesley reporting what Wilson said carries more credibility than a jailhouse snitch. Such informants rank as the leading cause of wrongful convictions in death penalty cases.
Oh, and Noling passed a polygraph test in 1992.
What put Noling on death row were the statements of his friends. They since have recanted, one before the trial. They have cited coercion and intimidation by an investigator from the prosecutor’s office, the bullying conducted in a familiar fashion, starting with the youngest of the suspects, age 16, suggesting falsely that DNA results and an eyewitness put him at the scene.
Frightened, overmatched and confused, they looked for their own deals, all of it following a classic pattern for how false confessions emerge, including the inconsistent and inaccurate details.
Remember, too, this is the same prosecutor’s office, albeit before Vigluicci took charge, that gained the 1990 manslaughter and murder convictions of Bob Gondor and Randy Resh. Eventually, the truth prevailed, the two freed from prison 16 years later, their ordeal stemming from a prosecution aided at trial by false testimony and key evidence failing to surface.
Vigluicci defended the Gondor and Resh convictions. He backs the Noling conviction. Yet there is so little left to defend, no physical evidence, recanted testimony, sound suspicions about an alternative suspect. At the least, the state owes Tyrone Noling those DNA tests.
Douglas is the Beacon Journal editorial page editor. He can be reached at 330-996-3514, or emailed at email@example.com.