A Portage County death-row inmate scored a victory Thursday in his fight for new DNA tests of crime scene evidence from a 1990 double murder with an Ohio Supreme Court decision ordering a lower court to reconsider the issue.
The high court’s ruling does not grant Tyrone Noling new testing of a cigarette butt found at the scene of the murders, but it does require the trial court in Portage County to take another look at it.
“A trial court must consider current versions of statutes in ruling on an inmate’s application for new DNA testing of biological material in a death penalty case,” the court said in its majority opinion.
The wording refers to a law passed by the Ohio Legislature in July 2010, which opened the way for DNA retesting — using the latest technology — if it can be shown the tests could determine the true perpetrator.
Noling, now 41, was convicted and sentenced to death in the shootings of an elderly couple, Bearnhardt and Cora Hartig, at the kitchen table of their Atwater Township home.
Initial tests of saliva and enzymes on the cigarette butt — found in the driveway of the Hartigs’ home — excluded Noling and one of his three co-defendants. Prosecutors then requested DNA tests by a forensic lab in California, in which all three co-defendants were eliminated.
Portage County prosecutors long have argued that Noling’s jury had the exclusionary evidence at his 1996 trial but convicted him anyway based on testimony by his co-defendants that he was the killer.
However, all three co-defendants, including one on the witness stand at Noling’s trial, have since recanted.
On Jan. 8, Noling’s defense, led by Carrie Wood of the Ohio Innocence Project, argued to the high court that the 2010 law — known as Senate Bill 77 — allows for new DNA testing if the defendant can show the tests could disclose new evidence.
Wood said police investigators had compared the saliva on the cigarette butt to a sample taken from another man, Dan Wilson, and found he could not be excluded as a possible source.
Wilson lived near the Hartig home in 1990, and later was sentenced to death for an unrelated murder. He was executed in June 2009, but his DNA profile remains on file in the FBI’s computerized database, Wood said.
“Mr. Noling has spent more than 15 years on death row for two murders he did not commit,” Wood said after Thursday’s ruling.
She told the justices the same thing in January’s oral arguments, when she stressed that Wilson had confessed to the Hartig slayings — not to police, but to his foster brother, Nathan Chesley, in 1990.
A police report later was issued on the confession.
Other evidence pointing to Noling’s innocence, Wood said, is currently at issue in the 11th District Court of Appeals in Warren.
“Initial police notes from 1990, that Mr. Wilson’s foster brother said Mr. Wilson committed the crimes, were never turned over to the defense [before Noling’s trial],” Wood said.
She said there also is a 2011 affidavit from Chesley in which he confirmed Wilson killed the Hartigs.
Wood said that Chesley has since made public statements, saying: “Ohio is about to execute an innocent man.”
Portage County Common Pleas Judge John Enlow never allowed Chesley to testify in Noling’s trial, Wood said.
And it will be Enlow, she said, who decides whether new DNA tests now are in order.
Victoria M. Buckwalter, who was involved in the 1996 pretrial investigation of the case for SACS Consulting agency in Akron, also has maintained Noling’s innocence.
“The prosecutors in Portage County have refused again and again to offer us any type of real investigation or DNA testing,” Buckwalter said.
With Thursday’s ruling, she said, the Ohio Supreme Court, in effect, “is telling not only the prosecutors, but also the judge: ‘You guys got it wrong.’ ”
Ed Meyer can be reached at 330-996-3784 or at firstname.lastname@example.org.