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.