Death-row inmate Tyrone Noling won the right Wednesday to appeal the denial of DNA testing he thinks could exonerate him of the 1990 murder of an Atwater Township couple.
The Ohio Supreme Court, in a 4-3 decision, ruled part of a state law unconstitutional: It gives non-capital defendants seeking DNA testing the right to an automatic appeal, but denies it for capital defendants.
The court gave Noling 45 days to file a brief on why shell casings and ring boxes from the crime scene should be submitted for DNA testing.
“We are obviously very pleased the Supreme Court cleared the way for DNA testing,” said Carrie Wood, Noling’s attorney with the Ohio Innocence Project and an assistant public defender. “It’s a good day.”
Portage County Prosecutor Victor Vigluicci, who argued on behalf of the state during oral arguments before the Supreme Court in June, said Wednesday that he is OK with the decision because it provides an automatic appeal to the Supreme Court rather than an appellate court.
“This does not give another level of appeal,” he said. “We’re comfortable with it.”
Noling, 44, previously won the right to DNA testing of a cigarette butt found in the driveway of the home of the elderly shooting victims, Bearnhardt and Cora Hartig. The results weren’t a match for Noling. Noling has so far been unable, however, to secure DNA testing of shell casings and ring boxes from the murder scene.
Wood said during oral arguments that the automatic appellate court reviews in non-capital cases have resulted in reversals 34 percent of the time. She said a capital defendant can appeal a DNA request to the Ohio Supreme Court, but the court can choose not to hear it. She said this is a violation of the rights to due process and equal protection under the constitution.
Vigluicci, however, told the justices that death-row inmates have the right to a fair trial and an appeal, but not to endless post-conviction relief. He said capital defendants can appeal directly to the Supreme Court and the court can decide whether to take the case based on its merits.
Justices criticize law
The justices, in a split decision written by Chief Justice Maureen O’Connor, who is originally from Summit County, agreed with Wood that the disparate treatment of defendants in capital and non-capital cases is unconstitutional.
“Are we to value speed over certainty?” O’Connor wrote. “Of all cases that cry out for certainty, it is cases that result in the extinguishing of a human life.”
Joining with O’Connor were Justices Paul Pfeifer and Judith Ann Lanzinger and Carla Moore, a 9th District Court of Appeals judge who served as a visiting judge on the Noling case.
The justices deleted the language in state law that made an appeal by a capital defendant to the Ohio Supreme Court permissible, therefore making it automatic instead.
Justices Terrence O’Donnell, Sharon Kennedy and Judith French dissented, saying they agreed the state law was unconstitutional, but disagreed with the remedy. O’Donnell said this section of state law should have been thrown out, rather than amended. This would have allowed capital defendants an automatic appeal of DNA testing requests to an appellate court.
Wood now plans to file a brief with the Supreme Court with several requests, including that shell casings from the crime scene be run through a federal database to see if the murder weapon can be linked to other crimes or an individual and that evidence not yet tested for DNA be submitted to a reputable lab. If further DNA testing is done and Noling is excluded, she said this would provide more proof that someone else killed the Hartigs.
Vigluicci, however, remains confident that the right person is on death row for the double homicide. He also thinks his office will be successful in the new appeal on DNA testing.
“We’re confident we will prevail in the Ohio Supreme Court, just as we did in the trial court,” he said.
Stephanie Warsmith can be reached at 330-996-3705 or swarsmith@thebeaconjournal.com. Follow on Twitter: @swarsmithabj and on Facebook: www.facebook.com/swarsmith.