COLUMBUS: Tyrone Noling has spent 20 years on Ohio’s death row for a double murder he has always said he didn’t commit.

Sparing Noling from execution for the 1990 slayings of an Atwater Township couple is a long string of court appeals that landed his case Tuesday before the Ohio Supreme Court — for the third time.

This time, the question was whether Noling should have the right to DNA testing of shell casings and ring boxes at the crime scene that he thinks could exonerate him and, potentially, point to the real killer. Noling’s attorneys argue a state law that gives non-capital defendants seeking DNA testing the right to an automatic appeal, but denies this of capital defendants, is unconstitutional.

“What we’re asking for is the same merit review all non-capital defendants get,” Carrie Wood, Noling’s attorney with the Ohio Innocence Project, told the justices during oral arguments that lasted about an hour.

Portage County Prosecutor Victor Vigluicci, however, countered that the legislature purposefully crafted the law to treat defendants in capital and non-capital cases differently, giving capital defendants the opportunity to appeal DNA requests directly to the Ohio Supreme Court, bypassing the appeals court. He said this is aimed at curtailing an “endless request for DNA tests” to delay an execution.

“No court has extended constitutional protection to convicted felons,” he said. “The appellant is asking for tremendous relief and for the court to go where no court has gone before.”

The justices, including 9th District Court of Appeals Judge Carla Moore who served as a visiting judge in place of Justice William O’Neill, is expected to rule on Noling’s case by the end of this year.

Noling, 44, previously won the right to DNA testing of a cigarette butt found in the driveway at the home of the elderly victims, Bearnhardt and Cora Hartig. The results weren’t a match for Noling. Noling has so far been unable, however, to get DNA testing of shell casings and ring boxes from the murder scene.

Noling was part of a group involved in home robberies of elderly couples. Three others in the group implicated Noling in the slayings of the Hartigs during a burglary, although they later retracted their statements, saying they had been pressured by police to name Noling as the shooter.

The original DNA tests of a cigarette butt found in the Hartigs’ driveway didn’t match Noling or the others in the group. But Noling contends technological advances make it possible to identify the smoker and determine whether that person was among other previously undisclosed suspects.

Wood told the justices the automatic appellate court reviews in non-capital cases have resulted in reversals 34 percent of the time. She said a capital defendant can appeal a DNA request to the Ohio Supreme Court, but the court can choose not to hear it. She said this is a violation of the rights to due process and equal protection under the constitution.

Justice Judith Ann Lanzinger asked Wood if she would be satisfied if the Ohio Supreme Court’s review of DNA requests by capital defendants was changed from discretionary to mandatory.

Wood said this would be “constitutionally permissible.”

Wood disagreed with Vigluicci’s assertion that allowing capital defendants the right to appeal the denial of DNA testing would further delay executions. She said this process merely gives them another shot at forensic testing that could exonerate, implicate them or be inconclusive.

Vigluicci said a defendant in a capital case has the right to a fair trial and an appeal, but not to endless post-conviction relief.

“What about the reality that DNA testing has exonerated people on death row?” Chief Justice Maureen O’Connor, a Green native, asked, prompting Vigluicci to shake his head.

“Because death is different and because we don’t want any stone left unturned,” O’Connor continued.

Vigluicci said it is incorrect to say capital defendants don’t have the right to appeal a denial of DNA testing. He said they just appeal directly to the Supreme Court. He said only nine capital defendants have requested DNA testing through trial courts. This includes Noling.

“I know this court would take time to take a good look at it,” he said of a DNA test appeal. “This could prevent continuous DNA appeals which go against the will of the people in this state.”

O’Connor asked Vigluicci about the downside to requiring the Supreme Court to review DNA appeals for capital defendants, rather than making this discretionary.

Vigluicci said this would be “infringing on legislative function.”

“That’s our job sometimes,” O’Connor responded.

“Only when there is proof they have overstepped the bounds,” Vigluicci said.

Justice Paul Pfeifer asked Vigluicci if the shell casings from the crime scene were compromised or could yield any valuable DNA results.

Vigluicci said the casings were handled by numerous officers, including one who wrote on them with magic marker, and likely wouldn’t provide reliable results.

When Wood returned to the podium, O’Connor asked her about the question of the quality of the testing.

Wood said the testing the shell casings still could be valuable. If the same DNA was on the cigarette butt and the casings, she said this would have to be from the person who killed the Hartigs.

After the oral arguments, Wood said she is hoping the justices will either require the 11th District Court of Appeals to take a look at the DNA testing question and other remaining issues in Noling’s case or that the Supreme Court will take this step itself.

“The importance is that it gets the review it deserves,” she said.

Wood pointed to a North Carolina case in which two men who had spent 30 years on death row were exonerated. She said the key was DNA evidence from a cigarette butt.

Stephanie Warsmith can be reached at 330-996-3705, swarsmith@thebeaconjournal.com or on Twitter: @swarsmithabj.