Tyrone Noling appeal: Ohio Supreme Court asked for access to DNA evidence in death-row case

From: Cleveland.com

COLUMBUS, Ohio – Throughout his 20 years on Ohio’s death row, Tyone Noling has maintained his innocence. Someone else, he says, killed an elderly couple in Atwater Township.

Despite his conviction for the 1990 murders of Bearnhardt and Cora Hartig in Portage County, no physical evidence has ever linked him to crime.

Noling wants DNA testing of shell casings from the scene that would have come from the perpetrator’s gun, as well as ring boxes found opened in a ransacked bedroom drawer. The technology wasn’t available to do such testing at the time of his 1996 trial and on Tuesday, Noling’s attorney asked the Ohio Supreme Court to help him win access to the powerful forensic tool.

Ohio law currently allows people who aren’t facing the death penalty the right to an automatic, mandatory appeal when their requests for DNA tests are denied, but capital defendants like Noling don’t have same right. They must ask the seven justices on the Ohio Supreme Court to review their cases, something the high court can refuse to do.

That distinction isn’t fair and doesn’t make sense, said Carrie Wood, an attorney from the Ohio Public Defender’s Office who is representing Noling. The discretionary aspect of the law, argued Wood, violates Noling’s constitutional right to due process and equal protection.

Under the DNA testing statute, “an applicant who is sentenced to probation receives more protection to ensure appropriate access to post-conviction DNA testing than someone who is sentenced to death.”

The law was put on the books to “potentially identify wrongfully convicted people in the state of Ohio,” she said.

That’s an important function of post-conviction DNA testing, especially for those sentenced to death, she added.

Any law or language in the law that makes it harder for people like Noling to have those crucial tests run should be changed, Wood said.

Prosecutor: Legislature can restrict apppeals

Portage County Prosecutor Victor V. Vigluicci, arguing for the state, said the Ohio legislature has every right to restrict the appeals of inmates.

“The legislature, your honors, in crafting this statute, looked long and hard at constitutionality. It’s not something that they skipped over or glossed over. When this was passed in 2003, the legislature contemplated allowing no appeals” of a trial court’s decision to restrict access to DNA testing, “which was in their power to do.”

Extending constitutional protections to “convicted felons” is “asking this court to take a tremendous leap and go where no court has gone before.”

The law is there to protect against “endless, endless requests for DNA – this case is the poster child for that. This is the third request for DNA from this defendant. And here I am again, in the Supreme Court, 27 years after the murder.”

The hearing lasted a little under an hour. A decision in the case is likely by the end of the year.

Chief Justice Maureen O’Connor questioned if Noling is asking for anything more than other convicted felons. He’s not looking for special rights. He just wants those same rights to be extended to those sentenced to die.

True, said Vigluicci, but the Supreme Court can hear DNA appeals from death row inmates if they want to.

And regardless, the Ohio constitution says that people are entitled to a fair trial and one direct appeal and that’s it, Vigluicci responded. There’s no right to those same protections after they’ve been convicted. Once a jury has spoken, they’re outside “the constitutional umbrella.”

“But what about the reality that this DNA testing has exonerated people on death row,” O’Connor pressed. What about the trend in legal circles to afford capital defendants an extra layer of protection “because death is different and because you don’t want to leave any stone unturned,” she said.

“Philosophically, how would you look at that?”

Vigluicci sidestepped that question. The case law is clear, he said. Noling and other capital defendants are not entitled to more due process than garden-variety defendants convicted of lesser crimes.

U.S. Supreme Court’s view

But the U.S. Supreme Court sees it another way, said Wood. While it’s true that the Federal Constitution guarantees no right to appellate review once a state affords that right to one group of people, the state may not “bolt the door of equal justice.”

That means that because Ohio allows those garden variety defendants to have the automatic right to appeal a decision by a trial court barring them from access to DNA testing, it can’t turn around and arbitrarily deny that same right to defendants facing a lethal injection. To do so is a violation of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, Wood argued.

Condition of evidence questioned

Justice Paul Pfeifer asked Vigluicci another question about the condition of the evidence at issue: Isn’t there a dispute as to whether or not the shell casings found at the Hartig house have been hopelessly contaminated by years of handling by law enforcement? Are we here “having an argument about something that leads nowhere?” he asked.

“Correct your honor, we’re here because it’s gonna cause another year or two delay in executing Mr. Noling,” Vigluicci responded, adding that the remaining evidence is “untestable.”

But as Noling’s lawyer, Wood pointed out, no testing has ever been done on the shell casings and the ring boxes – and that is necessary to determine what, if any, DNA is left behind.

Although no testing of the shell casings and ring boxes has been done, the trial court did agree to test a cigarette butt found on the Hartig’s driveway, a potentially rich source of DNA that might well have been dropped by the killer, as neither Cora nor Bearnhardt Hartig smoked.

Those tests revealed Noling hadn’t smoked the cigarette so that evidence couldn’t be used to place him at the Hartig’s house. But his lawyers want the full results of that test, not just the part that excluded Noling, so they can compare the DNA found on the cigarette to whatever comes up in future DNA tests on the shell casings and ring boxes.

As to issues of contaminated samples, even if there is someone else’s DNA on the shell casings or other evidence tested, “if the same DNA profile is on cigarette butt and on those shell casings,” said Wood . . . “the only person that would have touched that cigarette butt and touched those shell casings is the person who killed the Hartigs.” That’s why Noling keeps coming to the court and asking for the right to run those DNA tests.

“That would be compelling evidence of Mr. Noling’s innocence,” she said.

Looking for justice

Outside the courtroom, Vigulicci expressed frustration at having to appear in court, again and again, to defend the state’s conviction of Noling.

“Three times for DNA,” he said, “for a 27-year-old murder. We’re just anxious to see justice done, so are the Hartig’s family.”

“We’re also anxious for justice to be done,” attorney Wood responded. “There are many cases, including capital cases in Ohio, specifically (Cleveland’s) Ricky Jackson where it took 40 years for Mr. Jackson to find justice. (Jackson was convicted of a 1975 murder he didn’t commit.)

“We’re hopeful that it doesn’t take Tyrone 40 years to find justice and that we can get access to crucial forensic evidence in this case.”

Click here to see OPD’s Carrie Wood arguing before the Ohio Supreme Court on Tyrone Noling’s behalf