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Another look at a capital case

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Third time's the charm, goes the old saying.  It wasn't for Tyrone Noling, nor for Bearnhardt and Cora Hartwig, at least according to the case laid out by prosecutors back in Noling's trial in 1996.  There wasn't any doubt that in April 1990 Noling had twice robbed elderly couples in their homes, and the State of Ohio claimed that a few hours after the second, Noling went for the hat trick day with the Hartigs.  The difference was that this time the couple, both 81, wound up dead.  The only physical evidence that potentially linked Noling to the killings was that the victims had been shot with a .25 caliber, and that was the gun Noling had stolen in one of his robberies the day before.  That petered out, though, when ballistics found that the killings had been committed with a different weapon.  But two of his co-defendants testified against him (a third had agreed to, but backed out at trial), and that was more than enough for the jury, and for courts that would review and uphold Noling's conviction and death sentence in the ensuing years.

But, like too many capital cases, it's not quite as open and shut as you'd like.  Detectives had looked into Noling's possible connection to the killings when they occurred, and found too many holes, so they closed the case.  It was revived by a new prosecutor in 1996, and he's the one who secured the confessions of the co-defendants.  How he secured them would later be a subject of controversy; for example, Butch Wolcott was told that a worker on a utility pole had spotted him and the others coming out of the Hartig's residence, and that Wolcott's DNA had been found on a cigarette butt outside the house.  None of that was true, but the 15-year-old Wolcott was sufficiently scared to jump at Craig's offer of immunity in return for his testimony.  Then there were the customary jailhouse snitches, a trio of them, who claimed that Noling had boasted about forcing the Hartigs into the bedroom before killing them.  The problem with that was that the Hartigs had been killed in the kitchen, where their bodies were found.  Noling had a potential alibi that was never presented, and along with that came the customary questions about the representation that Noling received, a lot of it second-guessing, but some not.

Still, Noling went nowhere in his attempts to overturn his conviction and sentence.  None of the courts were impressed by the fact that the co-defendants had since recanted, and dismissed Noling's claims of prosecutor misconduct and ineffective assistance of his counsel.  Not easily, though; the 6th Circuit expressed "our concern about Noling's death sentence in light of questions regarding his prosecution," but nonetheless affirmed the district court's rejection of his habeas petition. 

But remember that cigarette the police told Wolcott they found outside the Hartig's house, the one they told him had traces of his DNA?  Turns out they did find a cigarette, and they did test it for Wolcott's DNA, as well as Noling's and that of the other two co-defendants.  The tests excluded them.  That cigarette, and a guy by the name of Nathan Chesley, may be what keeps Ohio from killing Tyrone Noling.

Chesley and Daniel Wilson had the same foster mother, and in 2010 Chesley signed an affidavit stating that he believed Wilson was the one who killed the Hartigs  He told the police the same thing back in 1990, but that wasn't discovered by Hartig's attorneys until over a decade after the trial.  (Wilson isn't around to say anything; he was executed in 2009 for an unrelated murder which he'd committed in 1991.)  Ohio passed a law in 2003 allowing inmates to seek DNA testing, and Noling filed one in 2008, claiming that advances in technology could now allow a definitive determination of whether it was Wilson's DNA on the cigarette butt.

At that time, though, the statute allowed testing only if there had been no prior "definitive test," and didn't define what that meant.  The judge denied the application, holding that there had been a definitive test, because Noling and the co-defendants had been excluded.  Then, two years later, the statute was changed to broaden a "definitive test" to include where "because of advances in DNA technology there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover."  That fit Noling's situation like a glove, but the trial court denied that one, too, because the statute also said once it's determined that the test wouldn't be definitive, subsequent applications should be denied.

That was a little too much for the Supreme Court, and last week in State v. Noling they ordered the trial court to consider whether "there is a possibility of discovering new biological material that is potentially from the perpetrator that the prior DNA test may have failed to discover."

That doesn't get Noling out of the woods.  The statute also requires the defendant to show that the new test would be "outcome determinative," and the State argued it wouldn't be, even if Wilson's DNA is on the cigarette; it could mean that he just happened to drive by sometime around the murders and flick his cigarette out a window.

Yeah, sure.  Let's just hope that everybody figures out this should be a call made by a jury, not a judge.  If the State wants to try to convince twelve people that the Hartigs' killer wasn't the guy who killed before and left his cigarette butt in the driveway, but the guy they've got no evidence against except three recanted statements and the bogus testimony of three jailhouse snitches, God bless.  But while you can argue over whether there's something wrong with a system that allows the state to kill someone, it's damned hard to that there's nothing wrong with a system that would allow the state to kill someone based on the judge's determination of that. 

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