In the face of a demand for DNA testing of evidence, state lawyers contort themselves to keep a man on death row.
There are four hard truths in Tyrone Noling's unenviable life. The first three form a part of his past that he can never get back: bad choices and decisions he made, or that were made for him, which have put him where he is today. The fourth truth is the biggest part of his present, and will surely determine his future -- or whether he even has a future. Noling is on Ohio's death row, and has been since 1996, for a crime he says he didn't commit; a crime to which he is linked by so little reliable evidence that a federal appeals court last year went out of its way to express "concern" about the accuracy of Noling's conviction.
The first truth in Tyrone Noling's life is that an elderly couple named Cora and Bearnhardt Hartig were murdered in their home in 1990. The second is that Noling, then a teenager, was convicted of the murders despite passing a lie detector test -- even though there was no physical evidence linking him to the Hartigs and the witnesses against him, co-defendants, were so unreliable that prosecutors initially dropped the charges against him. The third truth about Noling is that Ohio won't allow his attorneys to DNA test a cigarette found at the scene, evidence, the defense suggests, which might determine who might have killed the couple.
The fourth truth is unfolding now. Last Tuesday, for about half an hour, the Supreme Court of Ohio heard oral argument in the Noling case. His lawyers are asking the justices to recognize a broad application of a new state law designed to encourage DNA testing in cases like these. Prosecutors, claiming the butt is irrelevant, are asking the justices to preclude any further testing on the cigarette. Here is the video of the January 8th argument. If you have the time, it's well worth watching as a prime example of how infrequently appellate judges and lawyers talk about justice in our criminal justice system:
To understand the argument over the cigarette, to understand why Noling's attorneys would try so hard to have it tested after all these years, you first have to appreciate the role in this case of a man named Nathan Chesley. To Noling and his lawyers, Chesley is a hero. He never met Noling, and certainly didn't know him back in 1990, but Chesley claims today that it wasn't Noling who murdered the Hartigs. Instead, Chesley asserts, a vicious man named Daniel Wilson, a convicted murderer who was executed in 2009, likely killed the Hartigs when he burglarized their home.
Chesley and Wilson had the same foster mother -- now dead -- and the two men crossed paths at the foster home in which they both at one time had lived. In 2010, Chesley swore in an affidavit: "I am sure Wilson was breaking into places, including private homes, and stealing money in 1990. I also believe Wilson could have committed the Hartig murders; it sounds like something Wilson would do. In fact, I think it is likely that he did it." Chesley made a similar statement in 1990, a statement which found its way into a police file, which in turn didn't find its way to Noling until 13 years after he went to death row.
Ohio officials have little but scorn for Chesley and his story. Victor V. Vigluicci, arguing for the state, told the Ohio justices last Tuesday that Wilson was ruled out quickly by the police and that Chesley's story has since been found to be "incredible and unreliable." But even though Chesley's testimony is crucial to Noling's argument, and even though Vigluicci suggested that Ohio's lower courts have evaluated the reliability and credibility of Chesley's story, the truth is that Chesley has never testified in court in this case. He was ready to do so -- he showed up at court for a hearing in 2011 -- but the trial court refused to hear his story.
So we have witness Chesley, who is willing to be cross-examined under oath about his statement that Wilson murdered the Hartigs. And we have a cigarette butt, which may or may not definitely link Wilson to the driveway of the Hartig's house. And we have a new state law that is designed to encourage DNA testing of such evidence when it might determine -- or rather re-determine -- the outcome of a case. And we have former state officials with significant experience in law and justice, men like Governor Ted Strickland and former Attorney General Richard Cordray, who believe the cigarette should be tested.
MORE ON THE TYRONE NOLING CASE
We have all that and today we have no Chesley hearing, and no cigarette testing, and a man still on death row whose co-defendants all have recanted and whose prosecutors didn't share exculpatory evidence. This is so because Ohio prosecutors, and so far Ohio's judges, have elevated form over substance. The bulk of last week's argument wasn't about how to figure out whose DNA is on that butt. It was over the procedural question of whether Noling is entitled to have the cigarette tested now even though it was tested once before -- using old scientific methods -- long before his current attorneys learned of Chesley's accusation against Wilson.