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.
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.