Is Ohio Keeping Another Innocent Man on Death Row?

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Instead of searching for the truth, the state is going to absurd lengths to defend a dubious death sentence.

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Last year, the execution of Troy Davis captured most of the attention, and generated most of the debate, on the topic of capital punishment in America. Davis was put to death by lethal injection in Georgia three quarters of the way through a year that saw  a general decline in support for (and implementation of) the death penalty. This year, just a few weeks in, there's an early candidate for such a spotlight: a death row inmate in Ohio whose case raises many of the same questions about fair trials and justice that surrounded the Davis case.

In fact, you could argue that the capital murder case against Tyrone Noling is even weaker than the one against Troy Davis. And you could argue that the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else. In 1996, Noling was convicted of murdering Cora and Bearnhardt Hartig, an elderly couple, at their home in 1990. At first, though, there was no physical evidence linking Noling to the crime. Not a gun. Not any blood. Not any money or loot. And at first, there were no witnesses against him, either.

Frustrated prosecutors then gave the case to an investigator named Ron Craig and everything changed. Noling was indicted in 1992, but prosecutors soon had to drop the charges against him after he passed a polygraph case -- and after his co-defendant at the time changed his mind and refused to incriminate him. Just so we are straight, in 1992, there was no physical evidence linking Noling to the crime, he had passed a lie detector test, and witnesses were already turning on the investigator.

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Tyrone Noling (Ohio Dept. of Corrections)

But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs. Noling's jury deliberated for about day before returning guilty verdicts. Noling was quickly sentenced to death. The state's website duly notes that Noling arrived at its death row on February 21, 1996. He has maintained his innocence ever since.

There are several legitimate reasons why Noling deserves a new trial, especially in a state with a long history of wrongful capital convictions. There are a lot of flawed capital convictions all over the country -- pick a state, any state, where the death penalty is still a priority for prosecutors and you'll find such a case. But a closer look at this case reveals virtually all of the system's main flaws at one time and in one place. The only thing missing from the story is racial bias, which likely would have only made things worse. (As of September 30, 2011, there were 148 inmates on Ohio's death row, 65 of them white males like Noling.)

Unreliable Witness Identification

One big issue in the world of criminal justice these days is the accuracy and reliability of eyewitness testimony. Just two weeks ago, the United States Supreme Court refused to require trial judges to conduct pre-trial evidentiary hearings to determine whether jurors should be allowed to hear testimony from certain eyewitnesses. In Perry v. New Hampshire, only Justice Sonia Sotomayor dissented. She wrote that recent studies convinced her that misidentification by eyewitnesses is "the single greatest cause of wrongful convictions."

Only in cases of prosecutorial misconduct, the Supreme Court said in Perry, should trial courts take a more active role in evaluating the credibility of eyewitness testimony. Looking backward at the Noling case and applying this standard, let's just start (and finish) with the language of a recent ruling by the 6th U.S. Circuit Court of Appeals, based in Cincinnati, which declined last June to grant any relief to Noling. The judges, however, included this remarkable passage in their brief opinion:

Nevertheless, we pause for a moment to highlight our concern about Noling's death sentence in light of questions raised regarding his prosecution. Noling was not indicted until five years after the Hartigs' murders when a new local prosecutor took office. That new prosecutor pursued the cold murder case with suspicious vigor according to Noling's accusers, who have since recanted their stories and now claim that they only identified Noling as the murderer in the first place because they were threatened by the prosecutor.

In addition to the identifications being potentially coerced, there is absolutely no physical evidence linking Noling to the murders, and there are other viable suspects that the prosecutor chose not to investigate or did not know of at the time. Furthermore, that [prosecution witness and former co-defendant Gary] St. Clair switched courses before trial, deciding not to testify against Noling, gives rise to even more suspicion.

This worrisome scenario is not enough to create a constitutional claim cognizable under habeas and the Anti-terrorism and Effective Death Penalty Act. Other evidence considered by the trial court, such as the witness testimony of Wolcott and Dalesandro, prevents us from questioning the jury's decision that Noling was guilty beyond a reasonable doubt. However, reasonable doubt is a legal standard, and given the serious questions that have been raised regarding Noling's prosecution, we wonder whether the decision to end his life should not be tested by a higher standard.

In other words, the mid-level appellate judges felt so trapped by existing precedent that they were unwilling to even try to ease their worries about Noling's trial by granting him a new one. Last week, Noling's attorneys filed a brief asking the Supreme Court to accept its case and to force Ohio's courts to do more to look into Noling's claims. The appeal is not based upon the recanting eyewitnesses -- although a Perry-type appeal may reach Washington one day -- but it will offer the justices another opportunity to see what's left of Ohio's case against Noling.

DNA Testing

If Noling's capital trial were tainted by forced testimony by key witnesses, all of whom later recanted, then perhaps reasonable people would think it wise to evaluate some of the physical evidence found near the crime scene. You would think Ohio would trip all over itself to account for a conviction and death sentence that, at this moment anyway, seem sustained by no credible evidence. Instead, Ohio is blocking DNA testing of a cigarette butt that Noling's attorneys say may be linked to the real murderer, a man named Daniel Wilson.

Inconveniently, at least for Noling, Wilson now is dead. He was executed in Ohio in 2009 for the 1991 murder of a woman named Carol Lutz. Shortly before Ohio dosed him with its lethal cocktail, Wilson apologized to Lutz's family. Seven years before he brutally murdered Lutz, Wilson had attacked an 81-year-old man in his home. The Hartigs were both 81 years old when they were killed in their home. For Noling's attorneys, Wilson's execution came too early. They were still piecing together the link between him and the Hartigs.

Noling wouldn't be the first convict to blame another convict, and particularly a dead convict, for a crime. But before his trial, way back when, prosecutors "chemically" tested Noling for any trace to the cigarette butt. They found none. At the time, 20 years ago, prosecutors evidently didn't test Wilson -- and we don't know whether and to what extent he was ever a suspect. We know, however, that he wasn't in prison when the Hartigs were killed. And we know he killed Lutz approximately one year later.

Whatever the case, the butt has never been fully tested, under modern DNA protocols, to determine whether it is linked to Wilson or anyone else. Noling's attorneys aren't running away from such a test -- they say that more primitive tests, performed recently, do not rule out Wilson. It's the state that has thrown up legal roadblocks to the testing of this vital evidence. Here, the Ohio Supreme Court has been asked to intervene -- to force Ohio to test this evidence -- so Noling can know whether it links Wilson to the Hartigs' murder.

Prosecutorial-Police Overreaching

One of the other major themes in the national death penalty debate is rampant over-zealousness by police and prosecutors in capital cases. Earlier this month, for example, with the unsurprising exception of Justice Clarence Thomas, the Supreme Court roundly rebuffed Orleans County, Louisiana, prosecutors who had been caught hiding material exculpatory evidence from a capital defendant. In Smith v. Cain, the Justices by an 8-1 count reversed the conviction of a man named Juan Smith. Compare the two cases.

In 2009, 13 years after the trial, as Noling was moving forward with his latest requests for relief, prosecutors suddenly provided the defense with handwritten police notes from 1990 in which a man named Nathan Chesley reportedly identified his "brother" as having murdered the Hartigs. Chesley, it turns out, was Wilson's foster brother. Ohio prosecutors evidently did not share this information with Noling's original defense team. In March 2011, Chesley was still telling folks that it was Wilson, and not Noling, who committed the crime.

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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