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.