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Arguments in Columbus

An unusually short oral argument in Columbus this week in State v. Jackson.  The case involved the question of whether a defendant has a right to allocution in a probation violation hearing.  A month ago the court decided State v. Heinz, holding that the prosecutor was entitled to be at a probation violation hearing.  Not only that, it was an adversarial hearing, the victim had a right to be present, and the rules "direct the trial court at the time of imposing sentence to afford the prosecuting attorney the right to appear and speak on behalf of the state, because it has an interest in ensuring that a proper sentence is imposed to punish and rehabilitate the offender while protecting the public."

As Bob Dylan once sang, you don't have to be a weatherman to know which way the wind blows, and the prosecutor assigned to argue Jackson could feel the gale-force headwinds:  if the court had just said that the prosecutor has the right to speak at the violation hearing, how do you deny the defendant his constitutional right to allocute?  To his credit, the prosecutor got up, told the justices that he'd spent the weekend trying to reconcile Heinz with his case, and just couldn't find a way to do it.  His concession of error was met with kind words from Justice Pfeifer, after which the prosecutor and defense counsel hugged at the podium, and then everybody broke into a rendition of Kumbaya.  Several justices wept openly.

Cynical much?

I'm a firm believer in the principle that if something doesn't sound fair, it shouldn't be the law, which brings us to the oral argument in State v. Noling. 

If you're convicted of, say, drug possession, you can come in later and ask the trial court to provide you with evidence used at trial so you can test it for DNA.  If the judge denies it, you have the right to appeal it to the court of appeals.

There's one exception to this:  if you're convicted of capital murder and sentenced to death, if the trial court denies it, you can't appeal it to the court of appeals.  You can ask the Supreme Court to hear the case, but they don't have to.

That sounds pretty whack to me.  What's more troubling is that the case against Noling is hardly overwhelming.  He was convicted of shooting an 80-year-old couple, Cora and Bearnhardt Hartig, back in 1991 and ransacking their home, but no forensic evidence linked him to the crime.  The only real evidence against him was the testimony of two of his three alleged co-defendants, but one testified at trial - much to the prosecutor's surprise - that neither the co-defendants nor Noling were even at the scene, and the two other co-defendants have subsequently recanted, claiming they were pressured by the police.  The gun found on Noling did not match the weapon used in the crime.  What's more, there are other potential suspects, the main one being Daniel Wilson; Nathan Chesley, Wilson's foster brother, has come forward and claimed that Wilson committed the crimes.  (Wilson was executed in 2009 for another murder.)  The 6th Circuit found Noling's conviction and death sentence "troubling" a few years back, but nonetheless affirmed the denial of habeas relief, because that's the way habeas works anymore.

The key fight over DNA testing was of a cigarette butt found right outside the Hartig's house.  DNA testing at the time excluded Noling and the co-defendants, but the defense wanted to have it tested again, with more modern technology, in the hopes of finding Wilson's DNA; that would mean there was more evidence against Wilson than there was against Noling.  The judge finally relented and allowed testing of the butt in 2013, but it didn't register a hit against Wilson, or anybody else:  it didn't match up against anyone in the FBI database.  The fight is now over re-testing of shell casings and bullets found at the scene, with the prosecutor contending that testing is pointless, since the casings were contaminated by having been handled by numerous police officers and others during the process of retrieval. 

The prosecutor argued that the legislature had written the statute in this fashion to keep defendants from delaying their trip to the gurney with repeated and frivolous requests to test evidence.  That may be, but whatever the legislature's intent, it doesn't resolve the due process issue.

From a practical standpoint, I'm not sure it matters that much, at least to Noling.  Noling argues that the Supreme Court's discretionary review isn't the same as that given by the district appellate courts:  while they have free range to consider all issues, the Supreme Court is limited to considering only matters of great public interest or constitutional law - whether a particular item should be subject to DNA testing doesn't fall into those categories.  Still, I find it difficult to believe that, given the questions surrounding Noling's guilt, the Supreme Court would turn down an appeal from the denial of DNA testing simply because it didn't fit within the standard pattern where review is sought.

But the fact that it could, or that a future court might reject an appeal where the question of guilt or innocence was less troubling, is probably enough to tilt the scales to Noling on this one.

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