Case Update: June 1, 2016

On May 31, 2016, the Ohio Supreme Court held oral argument in the case of Tyrone Noling, an innocent man who has been on death row for 20 years despite the absence of physical evidence against him and the fact that all the state’s principal witnesses have recanted their testimony.

At oral argument, attorneys for Mr. Noling asked the Ohio Supreme Court to grant him the same appellate review for his DNA application as non-capital defendants. The appellate review provided to non-capital defendants has proven critical in obtaining exonerative DNA testing for those wrongfully convicted in Ohio as well as other states. Appellate review is critical to address the testing and results Mr. Noling still seeks in his case. Specifically, Mr. Noling seeks:

  • All results of post-conviction DNA testing;
  • For the shell casings from the murder weapon to be run through the federal database in order to see if the murder weapon is linked to other crimes or a specific perpetrator;
  • For an appropriately selected lab to make the scientific determinations listed in Ohio’s DNA testing statute based on scientific testing. Additionally, if the selection of the lab to make such determinations or to perform DNA testing is in dispute, that a trial court shall make findings regarding as to why it selected a particular lab.

Tyrone Noling Case Background
Despite maintaining his innocence before, during, and since his trial, Tyrone Noling has been on death row for over 20 years for two murders he did not commit. In 1996, Mr. Noling was sentenced to death for the murders of Bearnhardt and Cora Hartig in rural Portage County, Ohio. Today, he remains on death row in danger of execution despite overwhelming evidence of innocence, including:

  1. There is absolutely no physical evidence tying Mr. Noling to the murders;
  2. All of the principal witnesses against Mr. Noling have recanted their testimony; and
  3. Recently discovered forensic and witness evidence withheld at Mr. Noling’s trial points to other viable suspects.

In April 1990, Cora and Bearnhardt Hartig were tragically shot to death in their home in Atwater, Ohio. Neither Mr. Noling’s fingerprints, nor those of his alleged accomplices, were found in the Hartig home, despite uncontroverted evidence that the perpetrator touched many items and ransacked the home. Primitive DNA analysis of a cigarette butt found at the crime scene excluded Mr. Noling and his alleged accomplices. No eyewitnesses placed Mr. Noling or his young friends at the scene of the crime.

The lack of evidence led then-Portage County Sherriff Kenneth P. Howe to discard Mr. Noling and the other youths as viable suspects, saying “It just didn’t fit.”

That the boys even became suspects is puzzling. The police had absolutely no physical evidence from the crime scene pointing to any of them. The only thing that the police did have was the fact that in early April 1990, Mr. Noling and his friends were involved in a handful of minor thefts and two bumbling home robberies, including one in which Mr. Noling accidentally discharged a .25 caliber gun – a gun that did not match the Hartig murder weapon. Not only did these crimes take place in another town miles away, they were strikingly different in nature from the cold-blooded murders of the Hartigs.

Statements of the three young witnesses were obtained by an investigator and used to build a case against Mr. Noling. However, evidence developed since trial indicates that the statements of these witnesses were produced through coercive interrogation tactics and possess indicia of false confession. Experts have found that these statements “should be classified as unreliable.” [http://bit.ly/1rag5Fw] [http://bit.ly/23GZdHr]

Despite the troublesome doubt about the reliability of Mr. Noling’s conviction, he has yet to receive a hearing on the merits of his innocence claims.

Key Legal Filings in Mr. Noling’s Case

The Memorandum in Support of Jurisdiction of Appellant Tyrone Noling addresses issues of appellate review and can be accessed here: http://bit.ly/1qT78jx

The Memorandum includes an important issue that the Ohio Supreme Court ultimately took – the unconstitutionality of the disparity between appellate review provided to capital and non-capital defendants. As the brief explains, after their applications for post-conviction DNA testing were denied, non-capital defendants had access to appellate review of the denial, while capital defendants did not. This brief also raises legal questions such as:

  • Whether an inmate who applies for and is granted post-conviction DNA testing is entitled to the results;
  • Whether the trial court has jurisdiction to order shell casings from the murder weapon to be run through the federal database in order to see if the murder weapon is linked to other crimes or a specific perpetrator;
  • Whether a lab must make the scientific determinations listed in Ohio’s DNA testing statute based on scientific testing;
  • Whether a trial court shall make findings as to why it selected a particular lab to perform testing or to make scientific determinations, if the selection of the lab to is in dispute.

Another key filing in the case is the Merit Brief of Appellant Tyrone Noling which can be accessed here: http://bit.ly/1SUPOky

In a previous dissent, Ohio Supreme Court Justice Terrence O’Donnell, writing for himself and Justice Judith French, wrote that the statute governing appeals for capital and non-capital defendants whose application for post-conviction DNA testing has been denied by the trial court:

“[R]aises significant concerns regarding due process and equal protection in that it divides offenders who are similarly situated into two different classes: offenders who have been sentenced to death may seek leave to appeal the denial of postconviction DNA testing directly to this court while all other offenders may appeal as of right to the court of appeals and then seek discretionary review in this court if the appellate court affirms denial of the testing. Thus, the General Assembly has denied offenders sentenced to death—and only those offenders—an appeal as of right from the denial of postconviction DNA testing.” State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 60-63 (O’Donnell, J., dissenting).

The Reply Brief of Appellant Tyrone Noling can be accessed here: http://bit.ly/1S5p9VO and outlines why the State’s arguments lack merit.

For more information about the evidence of innocence, read an executive summary of the case.

If you would like to speak with Carrie Wood, attorney for Mr. Noling, please contact Laura Burstein at laura.burstein@squirepb.com.

cropped-PHOTO.jpgCase update: September 30, 2015

On September 30, 2015, the Ohio Supreme Court accepted jurisdiction over Mr. Noling’s DNA appeal.

Please find below a statement from Mr. Noling’s attorney in response to the Ohio Supreme Court’s ruling:

“We are grateful that the Ohio Supreme Court will hear Tyrone Noling’s case. Mr. Noling is an innocent man who has been on death row for almost 20 years. As the Ohio Supreme Court determined in accepting jurisdiction, Mr. Noling’s case is one of great public importance and involves a substantial constitutional question. The Ohio Supreme Court will resolve the constitutionality of the appeals process when individuals have been sentenced to death and their applications for post-conviction DNA testing are denied.”

“Ohio must do everything in its power to be sure it does not execute an innocent man. The gaps in Ohio’s appeals process must be fixed. Non-capital defendants who have had their requests for post-conviction DNA testing denied are allowed to appeal to the Court of Appeals and the Ohio Supreme Court. However, capital defendants who have had their applications for post-conviction DNA testing denied are only permitted to appeal to the Ohio Supreme Court, which takes only a small number of cases per year. Giving individuals whose lives are at stake less court review is nonsensical as well as patently unconstitutional.”

“A complete appellate review is important as powerful evidence strongly supports Mr. Noling’s more than two-decade old assertion that he is innocent. No physical evidence ties Mr. Noling to the crime. All of the principal witnesses against him have recanted their testimony. Evidence that the State wrongfully withheld evidence at trial points to credible alternative suspects. Using the most advanced scientific technology to test shell casings and ring boxes could identify the person responsible for this crime. In addition, because no gun was ever found, Mr. Noling should be permitted to utilize the database that law enforcement uses to solve crimes to track down the murder weapon.”

Mr. Noling is asking the Ohio Supreme Court to grant him the same appellate review for his DNA application as non-capital defendants and allow the Court of Appeals to consider these important issues:

  • Mr. Noling is entitled to the results of the post-conviction DNA testing that he requested.
  • Mr. Noling should be permitted to request that the shell casings from the murder weapon in his case be run through the federal database in order to see if the murder weapon is linked to other crimes or a specific perpetrator.
  • A trial court must make findings in its selection of the lab to perform DNA testing, when the selection of the lab is in dispute.
  • A lab must make the scientific determinations listed in Ohio’s DNA testing statute based on scientific testing.”

— Carrie Wood, Assistant State Public Defender, Office of the Ohio Public Defender, September 30, 2015

Tyrone Noling is an innocent man on Ohio’s death row. He has spent more than eighteen years in prison for two murders that he did not commit, despite the fact that:

  • There is absolutely no physical evidence tying him to the murders.
  • All of the principal witnesses against him have recanted their testimony.
  • Recently discovered evidence that was withheld at trial points to credible alternative suspects.

Case update: March 31, 2014

Today, the 11th District Court of Appeals reversed and remanded Mr. Noling’s new trial appeal for another hearing in trial court.

The Court directed the trial court in Mr. Noling’s case to take additional evidence on the issue of whether the evidence at issue in the new trial motion was a part of the prosecutor’s open file or was otherwise available through the Sheriff’s materials at the time of the trial.

The opinion can be viewed here.

Case update: December 20, 2013

On December 19, 2013, a hearing was scheduled to take place before Judge John A. Enlow in the Portage County Court of Common Pleas on Tyrone Noling’s request for DNA testing of crucial pieces of evidence that may provide important information that supports Mr. Noling’s innocence claim.

Rather than proceed with the hearing, Judge Enlow ordered DNA testing of the cigarette butt, and a CODIS run if results are obtained. He also ordered an inquiry into whether DNA testing of the shell casings and ring boxes is possible.

While Judge Enlow took an important first step by ordering DNA testing of the cigarette butt, Mr. Noling’s attorneys are concerned that Judge Enlow’s request for that information is from the Bureau of Criminal Identification and Investigation (BCI), the Ohio state lab, which does not have the advanced scientific technology necessary to provide the highest quality information that the judge will need to make an informed decision.

Therefore, on December 20, 2013, Mr. Noling filed a motion and affidavit asking the court to allow a hearing in order to take expert testimony from Dr. Rick Staub, a leading expert in the field of DNA technology. Dr. Staub will inform the Court that BCI is simply not equipped with the most advanced scientific technology available, which will place severe limitations on the information it will be able to provide to the court.

This request is incredibly important to Tyrone Noling’s case. It is likely that the additional testing and the inquiry ordered by Judge Enlow for more information will likely consume the biological evidence making further DNA testing unavailable. Mr. Noling may have only one opportunity to test the DNA, so it must be done right.

Several experts have offered declarations attesting to the importance of not only subjecting the cigarette butt to DNA testing but also to expanding the scope of DNA testing in Mr. Noling’s case and using more advanced methods available today: