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.
Today, Ohio argues cheekily that Noling is not entitled to test the cigarette because the prior test ruled him out -- and was thus "definitive" and thus triggered an exception to the statutory rule permitting DNA testing. There is no conceivable result from a new cigarette test, Ohio's lawyers argue, which could ever exonerate Noling since even if Wilson's DNA is found on the butt it wouldn't prove that he murdered the Hartigs. In other words, after dubiously convicting and sentencing Noling based largely on circumstantial evidence, prosecutors want to bar Noling's attorneys from trying to exonerate him based on circumstantial evidence.
The oral argument above is notable for many reasons. You'll notice, for example, how the state lawyer was able to take advantage of the fact that Noling's attorney left herself barely any time for rebuttal. You'll notice, too, how hard Ohio officials are trying to limit DNA testing by relying upon a narrow interpretation of a statute designed to broaden the scope of DNA testing in cases where there are serious questions about the accuracy and the reliability of a conviction and death sentence. I was struck particularly by this passage about two-thirds of the way through argument:
Chief Justice O'Connor: Say we get to the point where there is the question of whether we order the testing and you are saying it is not outcome determinative because they cannot use, if they do determine that Mr. Wilson's DNA matches that of the cigarette butt, that's merely one fact that would be introduced at a new trial which is not... are you downplaying the significance of that?
Vigluicci: Well, certainly, it's certainly not outcome determinative if somebody flicked a cigarette out of their car as they passed the Hartigs' house. Has nothing to do with the crime scene.
Justice: Well don't they have coupled with his foster brother's statement that -- and I didn't read verbatim what the foster brother said -- but there is, I don't know whether it was "I wouldn't be surprised if Wilson had done this" or and "Wilson told me he had killed this couple" I'm not exactly sure but anyway that's information to be interjected to a new trial if we get to that point.
Vigluicci: Two things on that, Justice. First of all, the court's already heard the new trial motion based on the new evidence.
Justice: Not the DNA evidence, based on the foster brother's discussion.
Vigluicci: Right. And rejected that as being incredible and unreliable. The federal district court has also reviewed that "new evidence" in habeas and rejected it. Secondly, I really object to the appellant here claiming that this alternative suspect has confessed in some way. That isn't the case at all. He's someone the police ruled out very early in this investigation and then 20 years later they produce this affidavit from a foster child who happened to live in the same foster home, not at the same time, as Davis. And he says in his affidavit that he could have committed the crime, it's something he would do. I mean, how that relates to a confession...
Justice: So there is no confession, no discussion between Mr. Wilson and this foster person.
Vigluicci: And it would be inadmissible hearsay of this Nathan Chesley anyway. I mean, no way that is coming in at trial. This is speculation of the nth degree and it's building hearsay upon speculation upon hearsay. There is no way this is outcome determinative. ... And the trial court saw that when it rejected both of these applications for subsequent DNA testing.
Call and Response
There is a lot going on in this exchange. First, it's disconcerting that, in a capital case, one of the justices says she hasn't taken the time to "read verbatim" Chesley's affidavit, which at this stage of the proceeding is critical to the resolution of the case. It's impossible to evaluate whether the testing of the cigarette butt could warrant a new trial for Noling -- could be, as the law says, "outcome determinative" -- without also evaluating Chesley's credibility. If the butt belongs to Wilson, and Chesley is a credible witness, there would be more credible evidence against Wilson than there would be against Noling.
It's also disconcerting, to say the least, how cavalier Vigluicci is with the factual assertions he makes. As I mentioned above, Chesley's credibility has never been found to be unreliable or incredible by any state court judge. In fact, you could argue the opposite is true. In 2011, the same state trial judge who refused to order the new DNA testing suggested that Chesley's 1990 statements, later found in police notes, were exculpatory. It's also inaccurate to say that the federal courts have rejected Chesley's credibility. Even as it expressed "concern" about this case, the 6th Circuit wouldn't give Noling a substantive review of Chesley's claims.
Vigluicci offered up his own theory for why Wilson's cigarette might have found its way to the Hartig's driveway. (Remember, there was no physical evidence placing Noling there.) But what's more likely? That a murderer who burglarized homes would leave a cigarette in the driveway of one of those homes or that he would randomly flick a cigarette out of the window of a car as he randomly drove by the house? Imagine how prosecutors would mock such a theory if it were presented at trial by the defense. And imagine how critical the cigarette butt would be to prosecutors if it were necessary to convict, as opposed to exonerate, a capital defendant.
"While we want to get to the truth as much as anyone else this isn't one of those cases where DNA has some relevance," Vigluicci told the justices. And the DNA has no relevance, Vigluicci asserts, because Chesley's story is unbelievable. And Chesley's story is unbelievable, Ohio argues, even though no judge has ever heard it. "Hearsay upon speculation upon hearsay," is how Vigluicci described the defense case last week. But that's precisely what Ohio itself is doing. If Vigluicci wanted to "get to the truth" he would have begged the justices last Tuesday to schedule that DNA test and to subpoena Chesley for a hearing.
The last word here goes to Regina Brett, a columnist for the Cleveland Plain Dealer, who wrote an important piece in this case in March 2011. She wrote:
The police never interviewed Nathan. Prosecutors never interviewed Nathan. No one ever asked Nathan one question. Defense attorneys say they never saw the report.
Nathan, who is now 38, told me Dan kept two guns, a shotgun and a smaller gun. The .25-caliber gun that was used to kill the Hartigs was never found.
Chances are good that if Noling got a new trial, he'd be a free man. Three men who testified that Noling committed the murders have since recanted. No physical evidence connects Noling to the crime.
A cigarette butt found in the Hartigs' driveway ruled out Noling, but not Wilson. Since Wilson's DNA is on file with the state, it could easily be tested.
The problem is persuading prosecutors in Portage County to allow it.
"I wish they would have talked to me years ago," Nathan told me. "It would be a travesty if they kill this guy. He is innocent."
"Dan told me he did it," he said. "It's that simple. I know it's not to the court, but they're going to execute an innocent man. I don't have a dog in the fight. I don't even know this guy Noling. I'd like to let him know that somebody out there knows he didn't do this. I'd like to give him hope."
Nathan can't figure out why no one will hear him.
And that's the essential truth about Tyrone Noling's life that matters most today.