The Ohio Supreme Court has accepted death row inmate Tyrone Noling’s appeal of an earlier denial for new DNA testing of potential evidence in the 1990 shooting deaths of an elderly Portage County couple.
Court officials announced Wednesday that Noling’s appeal was accepted for review without comment, but his attorney, Carrie Wood of the Ohio Innocence Project, said it was a 7-0 decision.
Noling, now 39, has been on death row at the Ohio State Penitentiary since his 1996 conviction in the slayings of Bearnhardt and Cora Hartig at their Atwater Township home.
The Hartigs, both 81, were shot multiple times in the chest April 5, 1990, as they sat at their kitchen table, according to the police investigation.
The foundation of the capital case was that Noling and three co-defendants — all teenagers — committed the crimes of aggravated robbery and aggravated burglary.
For years, Noling has sought DNA testing of a cigarette butt found in the driveway of the Hartigs’ home.
He says it could identify the real killer.
It took authorities five years to build a case they could get into court. Noling maintained his innocence all along, and Wednesday’s high court ruling is his first significant victory in attempts to prove he was wrongly convicted.
Although it does not mean new DNA testing of the cigarette butt is imminent, the court’s ruling could lead to that development.
“I spoke to Tyrone this morning,” Wood said in a telephone interview from her office in Cincinnati. “He was very encouraged to hear that the Ohio Supreme Court had taken an interest in his case.
“There are a number of flaws in the case and a number of problems. In addition to the DNA testing, most significantly, is the fact that all of the principal witnesses have recanted their testimony against Tyrone.”
The earlier denial of Noling’s request for new DNA testing came in March, when his trial judge, Portage County Common Pleas Judge John Enlow, rejected a second attempt to obtain a new test.
In support of Enlow’s ruling, Assistant Portage County Prosecutor Pam Holder wrote a lengthy brief, stating that a new DNA test of the butt would “prove nothing.”
A 1993 DNA test, Holder wrote, excluded Noling as the smoker of the cigarette butt.
“The fact that some person known or unknown to the Hartigs flicked a cigarette butt onto their driveway is irrelevant. There is no information indicating when the cigarette butt was left in the driveway, or how long it had been there,” she wrote.
If the butt had been from someone known to the Hartigs, Holder added, “it could have been left on a visit, or if it was left by an unknown person, there was nothing preventing the public’s access to their driveway.”
As the first step in the Ohio Supreme Court’s acceptance of Noling’s appeal, Chief Justice Maureen O’Connor has asked the Portage County clerk of courts for the original transcripts and exhibits from all proceedings in Enlow’s court and the courts of appeal.
Ed Meyer can be reached at 330-996-3784 or at email@example.com.