Is Ohio Keeping Another Innocent Man on Death Row?

It is unclear whether and to what extent local investigators or prosecutors ever followed up on Chesley's lead toward Wilson 20 years ago, or if they have gone back since to question Chesley now that all of the witnesses against Noling have recanted. Would Noling's trial have turned out differently -- would he have been acquitted -- if the defense had been able to follow the lead on Wilson in time? That's essentially one of the questions pending right now before another Ohio appellate court. Yet another chance to get things right with the Noling case.

When the state appeal court judges look at this aspect of the Noling case later this year -- oral argument has not yet been scheduled -- they will have to at least address the Supreme Court's guidance in Smith v. Cain. And if the justices in Columbus are as serious about fixing flaws in capital cases as the justices in Washington seemed to be in Smith v. Cain, they ought to reach out to Noling. Prosecutors who withhold from the defense this kind of evidence -- directly linking someone else to the crime -- are committing a clear constitutional violation .

State and Federal Appellate Law

By now you are probably wondering about Ohio's response to all these claims. In its recent briefs filed in Washington and in Columbus, the state says that Noling's jury got it right back in 1996. It maintains that any other evidence that has cropped up since is either immaterial or insufficient to help Noling, according to post-conviction procedural rules that were established by Congress and implemented by the courts. Ohio wants the law to consider this story to have ended in 1996, just after Craig's witnesses testified and long before they all recanted.

For example, Ohio now points to the 6th Circuit ruling above, which concludes that "the newly discovered facts and all the other evidence do not clearly establish... that a reasonable fact-finder could not have found Noling guilty." Look how far the law is unmoored from logic, how vast the gulf is from legal standard to common sense. We are asked to believe that a reasonable juror, looking at Noling's case now, would find him guilty and sentence him to death based upon no credible witness testimony and no physical evidence.

As to Noling's request to DNA test that cigarette butt, Ohio wrote this remarkable passage in a recent brief. It is a masterpiece of backpedaling, from the very people who thought highly enough of the evidentiary relevance of the butt 20 years ago to test Noling for any link to it. Now, Ohio makes this argument:

The fact that some person known or unknown to the Hertigs flicked a cigarette butt onto their driveway is irrelevant to the identity of the perpetrator of this crime. There is no information indicating when the cigarette butt was left in the driveway or how long it had been there. If the cigarette butt was from a person known to the Hartigs it could have been left on a visit. Alternatively, if an unknown person left the cigarette butt, there was nothing prevening the public's access to the Hartig's driveway. Therefore, the cigarette butt proves nothing and is not outcome determinative with regards to this case.

Nolting cannot demonstrate that retesting the cigarette butt under current DNA technology would render a result that would be relevant or when analyzed in context of and upon consideration of all available admissible evidence related to this case would render a strong possibility that no reasonable fact-finder would have found him guilty of aggravated murder...

Think Ohio would be making that same argument if the butt had been linked to Noling 20 years ago? Of course not. When that cigarette butt might have incriminated its suspect, Ohio wanted very badly to introduce it to the jury. Now that it may exonerate that very same man, Ohio says the evidence isn't worth spit. What the state really is saying here, and elsewhere, is that even if the butt definitively linked the murderer Wilson to the Hartigs home, the law today does not and should not allow Noling to get a new trial. 

This kind of smugness in the face of prosecutorial misconduct -- in the face of all those recanted witnesses, in the face of the chance for an exonerating DNA test -- is precisely why millions of Americans have turned away from the death penalty in the past generation. It's always been a fiction that criminal trials are a "search for the truth." But in this case, it's a fiction that Noling's case was a legitimate "test of the evidence." The Constitution requires more than blind adherence to statutory protocol in the face of material new facts.  

Epilogue

What Ohio is doing to Noling is similar to what many other states do when confronted with shoddy capital convictions. Rather than spend resources to best determine the accuracy of those convictions, rather than getting to the truth, they spend energy defending the virtues of finality and certainty in the criminal justice system. They do so at the expense of counter values like reliability and accuracy. Better not to ever know if it was Wilson who murdered the Hartigs, Ohio now argues, since we've already blamed someone else anyway. 

There are so many essential questions -- and Ohio spends no time answering them. For example, has Portage County ever conducted an internal investigation to determine whether Craig subjected witnesses in this case, and perhaps other cases, to "coercive interrogation tactics" in order to elicit incriminating testimony from them? And should Ohio's courts -- and current Portage County prosecutors -- simply ignore the fact that former Governor Ted Strickland and former state attorney general Richard Cordray both believe further DNA testing should be done? 

More questions. Congress harshly tipped the balance against defendants like Noling when it passed the Anti-Terrorism and Effective Death Penalty Act in 1996. "Effective," it turns out, meant rejecting meaningful appeals like Noling's on procedural grounds. For example, without the AEDPA and the way it has been interpreted by the Supreme Court, the 6th Circuit last June might have given Noling the new trial he's been asking for. So is the Clinton-era AEDPA constitutional when applied in cases like this? How can that be? 

Ohio, Texas, Louisiana, it doesn't matter: when it comes to states defending soiled capital convictions, the arguments are always the same. Serious prosecutorial errors are excused. Hypothetical jurors, the ones from whom material exculpatory evidence was hidden at trial, are assumed to vote guilty. Witnesses who recant are said to be lying now, not at trial. The impact of poor defense work is minimized. Ohio thinks it is defending the honor of the 1996 conviction. Instead, it's defending what's been revealed to be a sham. Why? And at what cost? 

The small county in northeast Ohio where the Hartigs were murdered, and where Noling was convicted, is called Portage County, named so because of the portage that was necessary for settlers between the Cuyahoga and Tuscarawas rivers. From my view, the evidence today suggests that Noling has been subject to a portage of his own, by overzealous prosecutors, rank politicians, and cowardly judges, who've stubbornly carried the man's conviction and death sentence over land when the logic and the evidence and the facts wouldn't flow.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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