Tyrone Noling, A Case of Actual Innocence, The Case of Bearnhardt and Cora Hartig, Free Tyrone Noling,

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Appellant Tyrone Noling’s

Memorandum In Support Of Jurisdiction

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If this Court declines to take jurisdiction of Tyrone Noling’s case, an innocent man may well die. Noling has diligently presented newly discovered evidence and, based on the evidence he presented, no reasonable jury would find him guilty. But, his petition, and every other successor postconviction petition filed in a capital case, met the same fate—it was denied. No Ohio court has granted a successor postconviction filed by a death penalty petitioner.

Noling could not locate one case where an Ohio court found that a capital petitioner met Ohio’s successor postconviction statute. It seems implausible that in the decades that O.R.C. § 2953.23 has been in place, not one petitioner has managed to jump the hurdle and obtain review of his claims. Guidance is needed in this area. It is the last state resort for petitioners like Noling—petitioners who have been denied access to necessary records because of a failure to disclose material evidence. Noling met the statutory burden; his case can be used by this Court to define what satisfies diligence as well as the quantum and quality of evidence a petitioner must present in order to obtain relief, or minimally discovery and an evidentiary hearing.

More process, not less, is required in a death penalty case. U.S. Const. amends. V, XIV. See Lockett v. Ohio, 438 U.S. 586, 605 (1978); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). See also Evitts v. Lucey, 469 U.S. 387, 401 (1985) (“When a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—and, in particular, in accord with the Due Process Clause”). Resultantly, more care must taken with successor postconviction petitions filed by death row inmates like Noling. Noling’s case affords this Court an opportunity to clarify to the lower courts when a capital petitioner is sufficiently diligent to satisfy § 2953.21. It also affords this Court the opportunity to clarify what a capital petitioner must demonstrate to meet the second prong of O.R.C. § 2953.23(A)(2), “by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] is convicted[.]”

This Court should also accept jurisdiction of Noling’s case because it gives this Court an opportunity to reconsider State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), or at least carve out an exception in death penalty cases. Noling was only able to file his successor postconviction petition and new trial motion because of The Plain Dealer’s investigative efforts. Had that newspaper not taken an interest in his case, the records that support Noling’s petition would have remained buried in the files of the Portage County Prosecutor’s Office. Noling did not receive the Brady v. Maryland, 373 U.S. 83 (1963), material from the prosecutor at the time of trial. And Noling could not do what The Plain Dealer did—make a public records request to the prosecutor’s office. Despite the fact that he had no ability to obtain the evidence earlier, he is subjected to the more onerous burden imposed by O.R.C. § 2953.23. This Court should accept jurisdiction of Noling’s case to rectify this problem. Either capital postconviction petitioners should be able to obtain public records, or this Court should interpret § 2953.23 to impose a less onerous burden on capital petitioners who had no vehicle to obtain the evidence with which they are litigating.

In addition to those compelling issues, Noling’s case gives this Court the opportunity to address a true miscarriage of justice—the execution of a man who is actually innocent. Armed with the facts now in his possession, at re-trial, no juror would convict Noling of the Hartig’s murders.

The editorial board of The Plain Dealer called for a new trial for Noling, saying, “in the case of inmate Tyrone Noling, who was sentenced to death in 1996 for a double homicide, there’s disturbing evidence that the state may be preparing to execute the wrong man. The case of inmate A222599 deserves another official look.” Justice in question, at p. B8. The board based its call not merely on the recantations of Noling’s co-defendants, years ago, but also on “the crucial and favorable evidence that the prosecution withheld from the defense that might have vindicated him.” Id. “The Noling case appears to be steeped in a web of distortions, unreliable—perhaps coerced—confessions and a public defense team that was unable to uncover the favorable evidence that Plain Dealer reporter Andrea Simakis found in her recent pursuit of this case.” Id.

The Plain Dealer has also featured Noling’s case in an editorial by Regina Brett arguing for open discovery in criminal cases in Ohio. Brett, A prosecutor’s misplaced concern, at p. B1. (She also featured Noling’s case in two additional editorials calling for reforms to Ohio’s death penalty system. The Plain Dealer featured Noling’s case as one more example of why Ohio should implement the changes suggesting in the American Bar Associations report on the death penalty in Ohio. Brett, Study reveals flaws in capital cases, at B1. See also Brett, Death penalty needs closer look, at p. B1) Quoting the Assistant Portage County Prosecutor at oral argument in the Court of Common Pleas, “I’m a little concerned The Plain Dealer is releasing information to the public that’s not available to the defendant…” Id. See also Simakis, Files require retrial, judge told; Prosecutor says secret facts don’t matter, at p. B1. The Plain Dealer, and the general public, is more concerned that this information was not made available to Noling. Plain Dealer Editor Doug Clifton said, “I think it’s more than strange that the defense team has to subpoena a newspaper reporter to get records that the reporter got by virtue of being a citizen.” In response to Noling’s request for a subpoena, The Plain Dealer voluntarily released all the records it obtained to the general public. See A legal twist that chokes justice, at p. B8. Noling is only now aware of this information because The Plain Dealer took the time and initiative to look into his case—“[i]t’s inexcusable that disinterested parties can have unfettered access to potentially useful public records denied to the accused.” A legal twist that chokes justice, at p. B8.

In addition to The Plain Dealer, nationally syndicated journalist Leonard Pitts Jr. has told Noling’s story to citizens across the United States. See Leonard Pitts, Jr., Where is justice with innocent on Death Row? The Miami Herald, Aug. 21, 2006, at B p. 1. Reprinted in Pittsburgh Post-Gazette (Pennsylvania), Aug. 24, 2006, at B-7; The Buffalo News (New York), Aug. 23, 2006, at p. A9; Fort Worth Star-Telegram (Texas), Aug. 22, 2006 at B 9; The Houston Chronicle (Texas), Aug. 21, 2006, at Star p. 4; Chattanooga Times Free Press (Tennessee), Aug. 27, 2006, at p. F3; Columbia Daily Tribune (Missouri), Aug. 26, 2006; Herald News (New Jersey), Aug. 24, 2006, at p. C07; Aberdeen American News (South Dakota), Aug. 23, 2006, at p. A4; Sun Journal (Maine), Aug. 23, 2006, at p. A8; The State (South Carolina), Aug. 22, 2006, at p. A0; The Wichita Eagle (Kansas), Aug. 21, 2006, p. A2. Pitts pronounced one of the most compelling reasons for this Court to take jurisdiction of Noling’s case—“[t]he law should not allow the death penalty in cases hinging solely on witness testimony. That has nothing to do with sympathy for devils. It has everything to do with the integrity and credibility of a broken system.” See id.

Noling’s case affords this Court the opportunity to tell the public that the integrity and credibility of Ohio’s criminal justice system is intact because, in cases like Noling’s, the courts will serve as a failsafe to guard against the execution of an innocent man. Noling’s case presents the opportunity to tell prosecutors that Brady matters, and that violators will not be tolerated. Noling’s case affords this Court the chance to tell trial counsel that more is expected of them when a man’s life is on the line. Lastly, this Court can satisfy the concerns raised by The Plain Dealer and by Pitts, that procedural necessities will not bar a possibly innocent man from having his day in court.

Tyrone Noling was convicted and sentenced to death for Bearnhardt and Cora Hartig’s murders. A neighbor discovered the couple shot to death in their kitchen. (T.p. 653, 659) The testimony of Noling’s three alleged accomplices was the principal evidence against him. Gary St. Clair, Butch Wolcott, and Joseph Dalesandro all testified that Noling robbed two elderly couples before the Hartig murders.

But only Wolcott and Dalesandro testified that Noling committed the Hartig murders. They gave this testimony in exchange for complete immunity (Wolcott) and a sweet plea deal that meant no additional time (Dalesandro). (See, e.g., T.p. 842, 846-47, 850-51, 1045, 1050, 1053) St. Clair, however, recanted his pre-trial confession and testified that the youths did not participate in the murders and that he was coerced into implicating Noling in these crimes. (T.p. 961, 972, 996-1000)

On his initial round of postconviction review, Noling presented claims of actual innocence, prosecutor misconduct, and ineffective assistance of counsel. Among the dehors the record evidence Noling presented were Wolcott and Dalesandro’s recantations—both claimed that they were coerced and manipulated into inculpating Noling in the murders. The Ohio courts denied Noling’s initial postconviction petition.

Subsequently, The Plain Dealer investigated Noling’s case, and wrote a series of articles urging a new trial. The public records The Plain Dealer obtained are the crux of Noling’s plea to this Court—records previously unavailable to Noling that change the picture presented at trial significantly. But because the prosecutor failed to disclose all evidence required under the Ohio Rules of Criminal Procedure and Brady v. Maryland, and because of failures of defense counsel, Noling’s jury never learned of this evidence.

Just days before his murder, Bearnhardt Hartig told his family doctor that his insurance agent defaulted on a loan the Hartigs had given to him, and Mr. Hartig was going to demand immediate payment.² (Ex. L) Days later, the Hartigs were found murdered in their home in a crime scene that suggested a perpetrator who knew the Hartigs—the Hartigs were seated at the kitchen table, the perpetrator sat at the table facing the Hartigs, there was no struggle or sign of alarm, Mr. Hartig still had his wallet, and the Hartig’s desk had been ransacked. (Exs. CC & DD)

The Hartigs had two insurance agents—and both were credible suspects. Lewis Lehman owned a .25 Titan handgun (Ex. AA), one of only 4 models that could have been the murder weapon. (T.p. 1243) Lehman claimed he sold the gun years prior to an unknown person; however the Hartig’s other insurance agent, William LeFever, saw the gun only 4 years before the murder. (Ex. UU) And, when authorities requested, Lehman refused to take a polygraph examination. (Ex. Y)

LeFever told authorities he conducted business at the kitchen table; his home was for sale when the police interviewed him; and he was mirandized prior to questioning. Most significantly, however, a witness placed a man matching LeFever’s description near the scene on the day of the murders—Jim Geib described a dark haired man, in his thirties, in a dark blue vehicle leaving the area of the Hartig’s home at a high rate of speed around the time of the murders. (Ex. K) Exhibit K notes that LeFever matches this description.

Central to the State’s case at trial was a second .25 caliber handgun. Noling stole a .25 caliber handgun during the first Alliance robbery, which he accidentally fired during the second Alliance robbery. (T.p. 837, 1043, 1094) (Noling immediately checked on Mrs. Murphy’s well-being when the gun discharged (T.p. 1370)). The authorities recovered this .25 caliber handgun, and it was not the gun used to kill the Hartigs. So, Dalesandro created a second .25 caliber handgun that he claimed Noling hid in his glove compartment. Dalesandro claimed he retrieved this second gun after he was arrested and then released for the Alliance robberies. But, Dalesandro’s car was searched at the time he, Noling, Wolcott, and St. Clair were arrested. (Ex. SS) The authorities did not find a gun—Dalesandro lied about a second gun.

But that was not the only time Dalesandro lied to (or for) authorities, and he was not the only witness to tell lies inculpating Noling. Ron Craig’s presence in this investigation explains much of this. In 1990, authorities questioned Noling and his alleged accomplices, but got nothing. No incriminating evidence developed until 1992 when the prosecutor’s investigator, Craig, got involved. The jury knew the youths changed their stories. However, there were significant and compelling facts the jury never heard—other evidence of lies and coercion.

In 1990, police interviewed Jill Hall and Julie Mellon. Those interviews make no mention of a murder. (Exs. JJ, U) Rather Hall tells authorities that Wolcott told her about some robberies committed in Alliance, Ohio. (Ex. U) Then, in 1992, Hall tells Craig about a murder. (Ex. KK) This directly contradicts Hall’s trial testimony—she claimed she told authorities about the murders in 1990. (T.p. 936) Had she done so, it would have been included in Exhibit U. Julie Mellon’s statements follow Hall’s pattern.³ (Ex. V)

The jury never learned that Craig threatened to frame Kenneth “Chico” Garcia if he did not cooperate in the Hartig investigation. (Ex. D) In 1990, Garcia told authorities the youths sold two guns to him—a sawed off shotgun and a .25 recovered by authorities, which was not the murder weapon. (Ex. E) Garcia’s story followed the Hall/Mellon pattern—it was not until Garcia met with Craig in 1992 that Garcia mentioned a second .25 caliber handgun. (Ex. F) Garcia testified before the Grand Jury, but not at Noling’s trial.

This was not the only threat made to a witness, however. There are three sets of notes from an interview with St. Clair in 1993, after he recanted his earlier inculpatory admissions. (Exs. N-P) Only one contains a threat made by the prosecutor—to max him and make an example of him to the public. St. Clair also made allegations similar to Garcia’s—St. Clair indicated Craig threatened to falsely implicate him in the Murphy robbery.⁴ (Ex. EE) Moreover, St. Clair’s competency evaluation during this timeframe demonstrated he was particularly susceptible to such tactics, with which Dr. Richard Ofshe, a preeminent false confession expert, agreed. (Exs. FF, GG)

In addition to the coercion evident from this evidence, documents reveal numerous inconsistencies that establish the State’s witnesses cannot be trusted. For example, the prosecutor’s office hired Dr. Grzegorek, a psychologist, to work with Wolcott. The doctor painted an unbelievable view of Wolcott’s spotty memory—blaming it on sexual abuse. Dr. Ofshe characterized that repression opinion as “utter nonsense.” (Ex. HH) Dr. Grzegorek also cautioned against precisely the type of tactics that Wolcott affied, in Noling’s first postconviction petition, Craig used to obtain his inculpatory admissions.

Dr. Grzegorek further noted that Wolcott wanted this matter to be over. And, in his letter, Dr. Grzegorek notes that Wolcott had only recently begun to believe that what he was telling the authorities was true. (Ex. II) The authorities, with Dr. Grzegorek, coaxed Wolcott into believing his lies.

In addition to Wolcott, numerous other witnesses cannot be believed because of statements and testimony replete with inconsistencies. These inconsistencies include, for example—

This evidence is in addition to the evidence presented at trial that suggested the State’s case could not be trusted, which includes the dissimilarities between the Hartig murders and the two Alliance robberies. Beyond the fact that the victims were elderly, there are significant differences between the three crimes, including: 1) no violence was associated with the Hughes and Murphy robberies; 2) Noling accidentally fired his weapon during the Murphy robbery and immediately checked on Mrs. Murphy’s well-being (T.p. 1370, 1376); 3) the robberies were in the youths’ neighborhood; they walked through the woods to commit the crimes (T.p. 835, 954); 4) the robbery victims were placed in closets, bathrooms, or bedrooms (T.p. 1044, 1375); 5) the phone wires were cut during the robberies (T.p. 1044); and 6) the items Noling stole from both the both robberies were left undisturbed at the Hartig home. (See, e.g., T.p. 831, 837, 953, 958, 1375-76)

Additionally support is provided by the material presented in Noling’s first postconviction petition, including Wolcott and Dalesandro’s recantations. Separately, Noling’s claims of prosecutorial misconduct and ineffective assistance of counsel strongly support his innocence. They are even more powerful when the errors are considered cumulatively.

A Portage County jury convicted Noling of two counts of aggravated murder with two capital specifications (O.R.C. § 2929.04(A)(3) and (A)(7)), as well two counts of aggravated robbery and one count of aggravated burglary. All counts included a firearm specification. After the jury recommended death, the trial court imposed a death sentence on Noling. Noling’s convictions and death sentence were affirmed on direct review. State v. Noling, 1999 Ohio App. LEXIS 3095 (Portage Ct. App. June 30, 1999); State v. Noling, 93 Ohio St. 3d 44, 781 N.E.2d 88 (2002). The Supreme Court denied the petition for writ of certiorari. Noling v. Ohio, 539 U.S. 907 (2003).

Noling sought state postconviction relief under O.R.C. § 2953.21. The trial court denied relief after a truncated hearing where Noling was only permitted to present “newly discovered evidence.” (T.d. 240, T.p. 3) Noling appealed to the Portage County Court of Appeals, which affirmed. State v. Noling, 2003 Ohio App. LEXIS 4508 (Portage Ct. App. Sept. 19, 2003). This Court declined jurisdiction. State v. Noling, 101 Ohio St. 3d 1424, 802 N.E.2d 154 (2004).

During the pendency of his habeas petition, Noling obtained new evidence supporting claims of innocence, ineffective assistance of counsel, and violations of Brady v. Maryland, 373 U.S. 83 (1963). Noling filed a successor postconviction petition and new trial and Rule 60(b) motions in the Portage County Court of Common Pleas, along with requests for discovery and funding for expert assistance on November 3, 2006. That court dismissed Noling’s pleadings on April 24, 2007. State v. Noling, Case no. 95-CR-220, slip opin. (Portage C.P. Apr. 24, 2007). The Eleventh District Court of Appeals denied Noling’s appeal on May 19, 2008. State v. Noling, 2008 Ohio App. LEXIS 2044 (Portage Ct. App. May 19, 2008).

Noling used the same exhibits to support both his successor postconviction petition and his new trial motion. Thus, all references to exhibits (“Ex.”) are references to both the successor postconviction petition and the new trial motion.

Tyrone Noling presented compelling evidence that the State failed to turn over evidence under Brady v. Maryland, 373 U.S. 83 (1963), that his attorneys rendered ineffective assistance of counsel, and that he is actually innocent of the Hartig’s murders. He is entitled to a new trial under both the successor postconviction statute and his new trial motion.

Imagine the case that could have been tried on Tyrone Noling’s behalf had the prosecutor turned over all evidence required under Brady. Imagine the case that could have been presented for Noling had defense counsel performed their tasks effectively. That case would have looked very different from the one presented at trial; it would have looked something like this:

Someone who knew Bearnhardt and Cora Hartig killed them. It could have been one of the Hartig’s insurance agents. Dr. Cannone, the Hartig’s family doctor, advised authorities that he had talked with Bearnhardt Hartig just days before his murder. Mr. Hartig was upset over a loan he gave to his insurance agent that had been defaulted. Mr. Hartig intended to call the agent and demand immediate payment. (Ex. L)⁵

Several documents made Lewis Lehman, one of the Hartig’s insurance agents, a viable alternative suspect in the murders, including:

On April 30, 1992, Portage County Sheriff’s Department investigators met with Lehman. (See Ex. Y) At this meeting, Lehman was fingerprinted, photographed, and questioned about the Hartig murders. Detective Duane Kaley then requested that Lehman submit to a polygraph test. Lehman refused.

Several documents also made the Hartig’s other insurance agent, William LeFever, a viable alternative suspect in the Hartig’s murders, including—

The crime scene report suggested a perpetrator who knew the Hartigs (Noling did not know them). The crime scene report suggested the perpetrator and the Hartigs were seated at the kitchen table, which is inconsistent with a home invasion and robbery. Gary Rini confirms that the report strongly suggests the Hartigs knew their killer. (Ex. W) LeFever conducted business at the Hartig’s kitchen table. Dr. Cannone gave both Lehman and LeFever a potential motive for the murders. Lehman owned the right gun.

When officers Doak and Kaley interviewed LeFever, he acted nervously and indicated he did not know the Hartigs. Only after the officers informed him that the Hartigs were murdered did LeFever respond “oh yeah.” Further, the officers described LeFever as having a light blue vehicle and dark black hair. (See Ex. J) The notes go on to indicate that this “fits with the Jim Geib description.” (See id.)

Jim Geib told authorities that he saw a dark blue midsize car leaving “that general location” on April 5, 1990 around 4:30 p.m. (See Ex. K) Geib indicated the car was traveling at a high rate of speed. (See id) There was one subject in the car that “looked to be a 30 male blk hair.” (See id.)

In addition to the insurance agents, money could have provided a motive to kill the Hartigs. Doris Jones, one of the Hartig’s neighbors, advised police that Mr. Hartig told her husband, at a picnic, that he had money in the house, but that nobody would ever find it. (See Ex. X) Friends and acquaintances of the Hartigs believed that they had money in their home. (See id.)

In rejecting the Brady evidence, the court of appeals notes that the “evidence would have assisted in constructing an alternative suspect(s) theory which would compete with the state’s theory of appellant’s case, [but] it is not so compelling that is presentation would have impugned the jury’s verdict.” (Opinion at 19) The court also found there to be a “tenuous” connection to the alternative suspects. (Id. at n.2) The court of appeals rejected the ineffective assistance of counsel claim as well. (Id. at 26) While noting that the evidence “might have been useful to assail the state’s theory of the case” “in light of the evidence produced against the appellant, we do not believe it clearly and convincingly demonstrates that no reasonable factfinder would have found appellant guilty of the murders even had it been submitted as a defense.” (Id. at 26)

The court of appeals’ holding misses the point of the claims. In State v. Brown, 115 Ohio St. 3d 55, 63-65, 873 N.E.2d 858, 866-68 (2007), this Court reversed and remanded for a new trial, in part, based on a violation of the prosecutor’s duty to disclose evidence favorable to the defense. The decision, in large part, reflects that the undisclosed Brady evidence may well have changed the defense attorney’s trial strategy. Id. at 64-65, 873 N.E.2d at 867. In its own holding, the court of appeals likens this case to Brown—this evidence could have helped to construct an alternative suspect theory of the case. (Opinion at 19) Moreover, that “tenuous” connection to the alternative suspects is largely due to the failure of the State to disclose Brady evidence. Had the evidence been properly disclosed to defense counsel, if they had a clearer picture of who had motive, their investigation and subsequent presentation may well have changed and that “tenuous” connection could have been strengthened. Because the State failed to produce this evidence, the question cannot be answered.

The court went on noting that the police “evidently determined not to pursue [the agents] as suspects in the crimes.” (Id. at 20) Noling reminds this Court that the police also decided not to pursue him as a suspect. It was not until Ron Craig came on the scene, coercing and threatening witnesses, that a case was built against Noling. See § 2.2.2 infra. Moreover, the evidence against the two insurance agents at the time of the offense was far less “speculative” than the evidence Noling. (Id. at 20) In 1990, no one placed Noling at the crime scene. There was no physical evidence linking him to the crime or the murder weapon. None of the kinds of items stolen during the Alliance robberies were taken from the Hartig’s home.

Instead, the crime scene suggested a perpetrator who knew the Hartigs, one who was seated at the kitchen table with them having chips. Papers were rifled through. Valuables remained on the Hartig’s persons. And, Dr. Cannone gave an insurance agent a motive. Two insurance agents were available to pursue—one owned the right make and model of gun, the other matched a person fleeing the area in a car at a high rate of speed at around the time of the murders.

Had this evidence been provided to defense counsel, it would have changed their strategy at trial. See Brown, 115 Ohio St. 3d at 63-65, 875 N.E.2d at 866-68. They would have viewed the evidence already in their possession differently, and an alternative suspect defense would have been presented.

The new evidence obtained by The Plain Dealer demonstrates that the State’s case cannot be believed—it was built through a web of coercion and lies.

A key piece of the State’s case was the murder weapon, which authorities never recovered. Joseph Dalesandro testified that he retrieved the murder weapon from his car, after authorities arrested, and then released, the youths for the Alliance robberies. Detective Mucklo told The Plain Dealer that he searched Dalesandro’s car at the time of arrest—the police found no gun. (Ex. SS)

The court of appeals notes there is no affidavit or deposition from Mucklo to refute Mucklo’s statement to The Plain Dealer. (Opinion at 21) Of course, Noling asked to depose Mucklo in his discovery request, which was denied by the trial court and affirmed by the court of appeals. And, the State of Ohio offered no evidence, no deposition, no affidavit. With the absence of a deposition or affidavit, the court questions the credibility of the information “allegedly communicated by Detective Mucklo.” Instead the court of appeals takes Dalesandro’s word (testimony he has long since recanted) over what is printed in The Plain Dealer. (Opinion at 21) Noling asserts there is no credibility contest here, Andrea Simakis and The Plain Dealer had nothing to gain by printing false information about Mucklo and the search of Dalesandro’s car. Of course, Dalesandro had everything to gain by lying about the gun—a plea deal that meant he would do no time for his participation in the Hartig murders. (See, e.g., T.p. 1045, 1050, 1053) The Plain Dealer information is sufficient to meet the second prong, any questions about credibility should be addressed after complete discovery and an evidentiary hearing is conducted.

The court of appeals also tries to reconcile Mucklo’s statement with Dalesandro’s testimony, noting the search could have occurred after Dalesandro retrieved the gun. (Opinion at 22) Review of Exhibit SS shows that the two statements are not reconciliable. Mucklo claims the car was searched at the time of arrest, while Dalesandro claims he retrieved the gun after he was arrested and then released from jail. Only one version can be true. The court of appeals’ decision to rely on recanted testimony over a police officer does not pass muster.

Moreover, the court faults Noling for not discovering this evidence sooner. The court, however, places the burden on the wrong party. The prosecution had an obligation to turn over this information. The prosecution’s Brady obligation extends to information “known only to police.” Strickler v. Greene, 527 U.S. 263, 280 (1999) (citing Kyles v. Whitley, 514 U.S. 419, 438 (1995)). See also Banks v. Dretke, 540 U.S. 668, 693 (2004). Even if this were information known only to Mucklo, Brady places an obligation on the prosecution to provide this information to Noling. See id. But, trial counsel received no information relating to this search. (See Ex. A)

Kenneth Garcia testified before the Grand Jury, but not at trial. This is unsurprising given what Garcia revealed during his Grand Jury testimony. While being questioned before the Grand Jury, Garcia testified that Ron Craig had coerced his testimony, threatening to frame hm with a crime he did not commit if he did not tell Craig what he wanted to hear:

(Ex. D, p. 1) Evidence demonstrating that Craig threatened to frame a potential witness is exculpatory. It also suggests Craig used such strong-arm tactics with other witnesses. Because the weapon used to kill the Hartigs was never recovered, it was important to find a witness to testify that Noling and his co-defendants had a never-located third gun. The prosecution got that testimony, at least at the Grand Jury, from Garcia. However, when law enforcement initially interviewed Garcia on May 9, 1990, he stated only that Dalesandro came to his house to sell two guns—a sawed off shotgun and a .25—and that Ray Rose purchased the .25. (Ex. E) Noling stole this .25 in the Hughes robbery and accidentally discharged it during the Murphy robbery—testing excluded it as the murder weapon.

It was not until August of 1992 when Craig interviewed him, that Garcia mentioned a second .25 caliber handgun. (Ex. F) Garcia’s Grand Jury testimony raises serious concerns about the methods Craig used to elicit his statements and testimony. Did Garcia create the third gun out of fear of Craig? Did other witnesses do the same? Moreover, it is less than clear that Garcia ever actually saw this third gun. (Ex. D)

Garcia’s testimony was compelling evidence of the coercive practices used by Ron Craig to incriminate Noling in these crimes, but his testimony was not turned over to defense counsel. (Exs. A-C) Garcia’s testimony also would have been compelling impeachment evidence of Joseph Dalesandro. Dalesandro’s testimony provided the only evidence at trial that Noling had another .25 caliber handgun.

But Craig was not the only person to threaten and coerce witnesses. The prosecutor’s office, led by David Norris and flanked by six others, interviewed Gary St. Clair on May 25, 1993. During the interview, Norris asked St. Clair about two different statements he had given about the Hartig murders. In the first one—given to the prosecutor’s office—St. Clair implicated Noling and himself in the crime. In the second one—given to Noling’s investigators—St. Clair denied any involvement in or knowledge of the Hartig murders.

There are three different reports of this interview. One is handwritten and unsigned. (Ex. G) One is typed and signed by Ted Hornyak. (Ex. H) The other is typed and signed by Patrick Kelly. (Ex. I) The handwritten version differs substantially from the typed, finalized versions. Only the handwritten report contains the following language: “Mr. Norris asked why Mr. St. Clair changed his story and Mr. St. Clair replied he did not know. Mr. Norris then said he could sentence Mr. St. Clair to the maximum and make him an example to the public that the prosecutor’s office does not fuck around.” (Ex. G) The two typed, finalized versions omit this threatening language.

These three interview reports, along with Garcia’s Grand Jury testimony, would have provided strong evidence to bolster a defense contention that the Prosecutor’s Office bullied witnesses into providing incriminating testimony. Defense counsel did not receive the evidence described above. (Exs. A – C)

Counsel did, however, have some evidence to suggest Craig was coercing witnesses. In 1990 numerous witnesses spoke to law enforcement about the Hartig’s murders, and any involvement by Noling and his cohorts. No one implicated Noling in the crime. Dalesandro, Wolcott, and St. Clair denied any knowledge of, or participation in, the Hartig’s murders—a fact counsel pointed out at trial. However, trial counsel failed to capitalize on two additional witnesses who never mentioned a murder when questioned by authorities in 1990.

A 1990 investigative report reveals that Jill Hall told law enforcement officials that “Wolcott had talked to her ‘about some of the robberies’ Noling and his pals ‘did in Alliance.’” (Ex. JJ) The report does not mention a murder. Similarly, Julie Mellon was questioned by law enforcement officials in 1990 and did not mention a murder. (Ex. U) Gary Rini indicates that normal investigative procedure would have necessitated officers writing it down if Hall had mentioned the Hartig murders. (Ex. W)

However, by 1992, both women had changed their stories to add a murder confession on Wolcott’s part. The court of appeals failed to see how the differences in Hall’s statement “reflect coercion on the part of authorities.” (Opinion at 26-27) It is the transition, the changes from robbery to murder, along with the evidence—Garcia, St. Clair, the recantations from Noling’s first postconviction petition, which build the case that coercion was used to obtain inculpatory statements, not merely the statement by itself. Only after prosecution investigator Ron Craig became involved did Wolcott, Dalesandro, and St. Clair offer inculpatory statements. And, Hall and Mellon only implicated Noling after Craig became involved. The key to the State’s ability to prosecute Noling was Craig’s involvement. Craig was coercing witnesses into incriminating Noling in this crime. In addition to these changed stories, St. Clair’s April 15, 1993 statement should have tipped trial counsel off to Craig’s tactics. St. Clair indicated that Craig threatened to have the Murphys testify that he robbed them, along with Noling. (Ex. EE) This was patently untrue; the record reveals that Noling committed this robbery alone. This was a clear threat from Craig to fabricate evidence against St. Clair if he failed to cooperate.

Counsel had information available demonstrating that St. Clair would have been particularly susceptible to such tactics. Counsel possessed a March 12, 1993 competency evaluation of St. Clair. This report reveals that St. Clair was in developmentally handicapped classes. (Ex. FF, p. 4) St. Clair has borderline intellectual functioning, with a full scale IQ of 76. (Id. at 6-7) Dr. Ofshe affies that these deficits would have made St. Clair more susceptible to Craig’s coercive tactics. (See Ex. GG) The court of appeals recognizes that this information could have been “used to help undermine the process leading to the chages being filed” but still fails to credit Noling as meeting the statutory burden before him. (Opinion at 27)

Trial counsel had exculpatory evidence in their files, which should have led them to present witnesses attacking the prosecution’s use of Craig to create a case against Noling. See Reynoso v. Giurbino, 2006 U.S. App. LEXIS 22648, *33 (9^th Cir. June 9, 2006) (citing Strickland v. Washington, 466 U.S. 668, 691 (1984)). This was evidence with significant exculpatory value. There is no excuse for counsel’s failure to present it. See also Hart v. Gomez, 174 F.3d 1067, 1070 (9^th Cir. 1999); Avila v. Galaza, 297 F.3d 911, 919 (9^th Cir. 2002); Lord v. Wood, 184 F.3d 1083, 1093 (9^th Cir. 1999); Griffin v. Ward, 970 F.2d 1355, 1358 (4^th Cir. 1992).

The court of appeals correctly notes that Noling raised the issue of coerced confessions in his first postconviction petition. (Opinion at 15) However, the only evidence available to Noling was the affidavits of his former co-defendants recanting their trial testimony and asserting that Craig had coerced them into making false inculpatory statements. This evidence was rejected by the trial court. State v. Noling, Case No. 1995 CR 220, slip opin. at 47-49 (Portage C.P. Apr. 9, 1998). (Noling notes that the trial court that presided over his original postconviction did not preside over his trial. Nor did that court grant discovery or a hearing on any of Noling’s claims.) Those recantations combined with the disinterested testimony of Garcia and actual notes from the prosecutor and police add strength and demonstrate the compelling nature of Noling’s claim. Similarly, the change in witness stories, numerous witness stories, also supports Noling’s claim. This is newly discovered evidence that warrants relief. It is different in quality and kind from the recantations, which are disfavored. See id. Thus, this evidence was not “substantially similar” to previously presented evidence, its “thrust” was not previously considered by the trial court. (Opinion at 15)

Trial counsel were aware that Wolcott met with a psychologist, Dr. Alfred Grzegorek, several times. In their possession were three letters in which the doctor evaluated Wolcott. His observations made him a significant and compelling witness for Noling.

In a letter dated July 6, 1992, Dr. Grzegorek discussed Wolcott’s repressed memories. He attributes Wolcott’s spotty memory of the Hartig murders to his sexual abuse. “He has indicated to you questions as to whether or not he is remembering the events correctly or whether he made them up, he continues to question his own culpability in the robbery and murders, and overall, he is not certain as to whether or not what he is remembering is real or part of ‘going crazy.’” (Ex. HH) Dr. Ofshe notes that Dr. Grzegorek’s “explanation that Wolcott’s inability to remember any involvement in the murders is because he repressed these memories…is utter nonsense.” (Ex. GG, p. 2) Dr. Ofshe explains that repression is little more than “rank speculation” that “has been rejected by the scientific community.” (Id.) Instead of retrieving memories, Dr. Grzegorek’s involvement served only to “rationalize the creation of beliefs that benefited Wolcott.” Id. Had counsel utilized Dr. Grzegorek’s reports, which would have included obtaining an appropriate expert like Dr. Ofshe, Wolcott’s credibility would have been destroyed.

Dr. Grzegorek encouraged interviews “in a firm, directed, but non-pressured fashion.” He cautioned, “I would strongly caution that the continued interviews and examinations with him be done in a firm but non-pressured fashion since I believe he may either become more obstinate if overly pressured or will produce information to simply satisfy demand and that the information produced will not be able to be verified through other sources.” (Ex. HH, p. 3-4) Dr. Grzegorek’s letter is oddly prescient; Wolcott affied that the prosecution used high-pressure tactics to coerce inculpatory statements from him. (See First Postconviction Petition, Ex. F)

Dr. Grzegorek drafted another letter on December 21, 1995. In this letter, Grzegorek notes that Wolcott has only begun to believe in the last six or seven months “that it did happen the way I remember.” (Ex. II, p.1) Wolcott continued, stating it was “still very hard to realize that it’s true.” (Id.) Wolcott expressed his need for “this to be over.” (Id. at 2) Wolcott expressed concern that he might have been more involved than he recalls, but was not sure. (Id.)

Dr. Grzegorek could have offered compelling testimony attacking the memory, and thus reliability, of the prosecution’s most important witness. Moreover, an expert such as Dr. Ofshe could have dismantled any reliance by the prosecution on “repressed memories.” In addition, trial counsel could have used Dr. Grzegorek’s reports to cross-examine Wolcott, pointing out his uncertainty and the unreliability of his testimony. Competent counsel, in possession of Dr. Grzegorek’s letters, would have used the information contained therein to defend Noling.

Defense counsel did make some efforts to impeach Wolcott’s spotty memory, as noted by the court of appeals. (Opinion at 25) But, the court of appeals does not go far enough when it notes that “Dr. Grzegorek’s assessment may have been additionally useful to undermining Wolcott’s credibility, it is also somewhat cumulative in light of defense counsel’s cross-examination.” (Id.) Overall, the court’s analysis misses the main points of Noling’s claim. First, there was no legitimate psychological reason for Wolcott not to remember what transpired as repressed memories are “utter nonsense.” (Ex. HH) Second, and unbeknownst to him, Dr. Grzegorek gave Ron Craig the road map to coerce untrue statements from Wolcott implicating Noling in these crimes.

The prosecution also violated its duty under Giglio v. United States, 405 U.S. 150, (1972), as demonstrated by Dr. Grzegorek’s reports. The prosecution relied heavily on Wolcott’s testimony, despite his repeated statements that he was unsure of the events of April 1990 and despite a psychologist’s inability to ascertain whether Wolcott was really recalling these events. The prosecution was on notice that Wolcott’s testimony was not truthful, but presented it anyway.

Dr. Cannone told the police Mr. Hartig was going to call an insurance agent about a defaulted loan. Either the police did not follow up on this, or the relevant phone records have gone by the wayside. (See Ex. Z) Authorities obtained the Hartig’s phone records, but records accessed by The Plain Dealer are incomplete. The court of appeals calls the records “purportedly” incomplete. (Opinion at 19) Simple review of the records reveal that the “purportedly” qualifier is unjustified—the records are, in fact, incomplete. (See Ex. Z) There is no way to confirm, or refute, Cannone’s contention. Or to ascertain if Mr. Hartig had a chance to make the phone call, thus strengthening an alternate-suspect defense. Access to these materials at trial would have led counsel to ask where the other records were and to question why authorities failed to address Cannone’s allegations.

Witness statement and testimony now in Noling’s possession, thanks to The Plain Dealer, reveals that the State’s witnesses cannot be trusted.

Trial counsel could have used Robyn Elliott’s Grand Jury testimony to impeach her. (See Response Ex. M) But the prosecution failed to disclose it. (See Exs. A-C) The court of appeals saw “no apparent inconsistencies or contradictions in her testimony.” (Opinion at 17) Noling catalogues each to demonstrate the unreasonable nature of the court’s holding.

Trial counsel had Elliott’s 1993 statement indicating that she was unsure if she was at the Trandifer home on Saturday (April 7, 1990) or Sunday (April 8, 1990). Her Grand Jury testimony, however, would have been significantly more important. The fact that she was unsure what day it was would have been a stronger vehicle with which to attack her trial testimony than a prior unsworn statement. This testimony was inconsistent with her trial testimony in which she claimed with certainty that she was at the Trandifer home on Saturday. Competent trial counsel would have used her Grand Jury testimony to attack the credibility of her assertion that she was sure she was at the Trandifer home on Saturday—the day before the murder was reported in the media—or Sunday—the day after it was reported. See Whitfield v. Bowersox, 324 F.3d 1009, 1017 (8^th Cir. 2003). However, the prosecution failed to provide Noling’s trial counsel with this testimony. (See Exs. A, B, C)

There are other inconsistencies between Elliott’s Grand Jury testimony and her trial testimony that competent trial counsel would have used to impeach her. For example, in the Grand Jury, Elliott testified that while at the Trandifer home, Noling, Wolcott, and St. Clair went outside to see if there were police around. When they came back inside, Elliott testified, Noling was angry and said that Wolcott “told on him.” (Ex. M, p. 13) She said nothing about Noling threatening Wolcott. However, at trial, Elliott testified that a police car drove slowly past the house and then Noling jumped up, grabbed Wolcott by the throat or collar, and threatened to kill him. (T.p. 1179) Certainly Elliott’s trial testimony added to the jury’s impression of Noling as violent and capable of murder, and it served to corroborate and validate Wolcott’s later testimony. Yet, trial counsel could have destroyed the credibility of this assertion with her Grand Jury testimony.

An additional inconsistency is Elliott’s characterization of her conversation with Noling. In the Grand Jury, she testified that Noling and St. Clair were talking and laughing about a murder. (Ex. M, p. 10) At trial, however, she described the conversation as a private one between her and Noling, stating that she was not sure if anyone else overheard. (T.p. 1179) Counsel could have demonstrated the unlikelihood of the alleged conversation had the prosecution produced Elliott’s Grand Jury testimony in discovery.

These inconsistencies between Elliott’s trial and her Grand Jury testimony would have been important tools for cross-examining her at trial.

The prosecution did everything in its power to convince the jury that Noling killed the Hartigs and that Gary St. Clair watched him do it. They produced, and essentially read into evidence, St. Clair’s March 19, 1993 statement, inculpating both himself and Noling. However, the prosecution did not provide all of St. Clair’s prior statements to counsel—exculpatory statements in which St. Clair denied any involvement in the crime. (See Exs. A, B, C)

On April 9, 1990, St. Clair denied any involvement or knowledge of the Hartig murders, but did confess to another robbery. (See Ex. N) Again, on April 24, 1990, St. Clair denies involvement in the murders. (See id.)

Even as Ron Craig manipulated and coerced St. Clair into confessing to these crimes, and implicating Noling, he gave inconsistent accounts. For example, notes from an interview with St. Clair on November 28, 1995 reveal several inconsistencies—St. Clair changes the time he awoke on April 5, 2005; St. Clair details conversations he heard in the home, which are not accounted for in other statements; and St. Clair states that Noling put the .25 in his coat pocket. (See Ex. O) St. Clair’s story is adjusted on May 4, 1995. Here, St. Clair claimed that Noling put the gun is his pocket, or in the glove box. (See Ex. P) Unlike several other statements, St. Clair’s May 5, 1995 Grand Jury testimony indicates that St. Clair did not witness Noling shoot anyone—the Hartigs were dead when he arrived in the kitchen. (Compare Ex. Q, p. 11 with Ex. O) Despite detailed recollection of what Noling and the Hartigs said in earlier statements, St. Clair claimed he could not hear what was said when testifying before the Grand Jury. (Compare Ex. Q, p. 12 with Ex. P)

These statements also include inconsistent details when compared to Dalesandro and Wolcott’s testimony. For example, St. Clair’s November 28, 1995 statement reveals that Mrs. Hartig let them into the home, while Wolcott testified they forced their way in. (Compare Ex. O with T.p. 847) St. Clair stated that Noling put the .25 in his coat pocket, while Dalesandro testified that Noling placed the gun in the glove compartment. (Compare Ex. O with T.p. 1055)

St. Clair ultimately denied the veracity of all inculpatory statements he gave to authorities when he testified at Noling’s trial. Illustrating these numerous inconsistencies would have bolstered St. Clair’s assertion that he and Noling did not commit this crime. The prosecution should have provided St. Clair’s Grand Jury testimony and the interview notes under Brady. Yet trial counsel did not receive these materials in discovery. (See Exs. A-C)

In addition, counsel had documents in their position that could have hampered St. Clair’s credibility. St. Clair gave repeated inconsistent statements, including:

Grand Jury 3/19/93	Investigative Rpt 4/6/93 (Ex. RR)
Ran out the front door when heard the 1st shot (T.p. 511) Saw 2 victims on the floor (T.p. 518) thinks went in kitchen (T.p. 520) Mrs. H shot first (T.p. 520) Now shot Mr. first (T.p. 521) Saw Tyrone shoot them on the floor (T.p. 523)	Saw Noling shoot victims while on floor

Joseph Dalesandro testified as part of the prosecution’s case in chief. Trial counsel put significant effort into impeaching him with prior inconsistent statements. However, notes from a June 29, 1995 interview and Dalesandro’s Grand Jury testimony would have aided in this task. (See Exs. A, B, C, S, T) In his June 1995 statement, Dalesandro told authorities Noling killed the Hartigs because they got “hostile.” (See Ex. S, pp. 2, 4) He mentioned “witnesses” once (see id. at 1), however the primary thrust of his statement appears to be that Noling killed the Hartigs because they got “hostile.” (See id. at 2, 4) At trial, Dalesandro testified Noling killed to eliminate witnesses. (T.p. 1056) Again, the court of appeals failed to understand the import of the change in Dalesandro’s testimony, noting the omission of the “victims’ alleged hostility is inconsequential because it does not contradict or in any way compete with appellant’s assertion relating to the elimination of witnesses.” (Opinion at 13) The omission of “hostility” was not significant, it was the change for the reason of killing the Hartigs—killing a hostile person is not a capital specification, killing a witness is. The prosecution needed Dalesandro to say Noling killed “witnesses”; a killing committed because of hostility does not satisfy the O.R.C. § 2929.04(A)(3) specification Noling faced.

Dalesandro detailed extensive conversation between Noling and St. Clair in the June 29, 1995 notes. (See Ex. S, p. 4) Dalesandro detailed this incriminating conversation at trial as well. (T.p. 1054) However, before the Grand Jury, Dalesandro claimed he could not hear this conversation. (See Ex. T, p. 6) The court of appeals addressed this inconsistency by finding that the “notes provide slightly more detail regarding the substance of what Dalesandro overhead.” (Opinion at 13) That finding is inconsistent with the record. The notes did not provide slightly more detail, they provided all of the detail, because Dalesandro claimed to have heard nothing when he testified.

In his Grand Jury testimony, Dalesandro testified that Noling and St. Clair gave him directions to the Hartig home. (See Ex. T, p. 5) At trial, hastening to implicate Noling as the mastermind, Dalesandro testified Noling alone gave him directions. (T.p. 1047) Dalesandro was unclear on whether an old man was in the front yard of the Atwater home. (See Ex. T, p. 2) At trial, however, he expressed no doubts. (T.p. 1050) Dalesandro changed the passengers’ locations, placing St. Clair behind him before the Grand Jury (Ex. T, p. 4), but Wolcott behind him at trial. (T.p. 1049) This is more than a “coincidental” mistake, as characterized by the court of the appeals. (Opinion at 14)

Finally, Dalesandro told the Grand Jury that Noling carried the weapon he stole from the Hughes’ robbery. (See Ex. T, p. 7) However, forensic evidence established that this was not the murder weapon. (T.p. 1243) Moreover, this conflicts with Dalesandro’s trial testimony that Noling was carrying a second small handgun. The court of appeals, however, saw “no specific inconsistency in this testimony…because Dalesandro identified a particular gun in appellant’s possession does not preclude the existence of a second gun in the vehicle or, for that matter, also in appellant’s possession.” (Opinion at 14) The court of appeals conclusion is correct, but only if you ignore the implication of Dalesandro’s testimony. Before the Grand Jury, Dalesandro testified that Noling killed the Hartigs with the gun he stole during the Hughes’ robbery. When ballistics tests determined this was not the murder weapon, Dalesandro created a second small handgun. This was a significant inconsistency.

Dalesandro was an inconsistent and incredible witness. Access to these impeaching materials would have allowed trial counsel to further destroy his credibility.

Combined with the information counsel already possessed, but failed to use, the jury would not have believed Dalesandro. Impeachment evidence that was available to counsel included:

Trial Testimony	Handwritten statement 7/2/92 (Ex. LL)	7/29/92 statement (Ex. MM)	2/24/93 investigative report (Ex. NN)	3/2/93 investigative report ( Ex. OO)
Noling stated in the car that killed the Hartigs because he did not want witnesses (T.p. 1054)	No mention of killing to eliminate witnesses.	No mention of killing to eliminate witnesses.	No mention of killing to eliminate witnesses.	No mention of killing to eliminate witnesses.

Because of the manner in which Dalesandro’s testimony evolved, this was an important and compelling fact for counsel to illustrate. Dalesandro’s ever-evolving testimony ensured the prosecution could convict on the O.R.C. § 2929.04(A)(3) specification with which Noling was charged.

Butch Wolcott was an important State’s witness. His cross-examination was crucial. An interview with Wolcott reveals a compelling inconsistency, but it was never provided to defense counsel. (See Exs. A, C, R) For example, Wolcott claimed Noling tied the Hartigs up in the kitchen. (See Ex. R) This is inconsistent with his trial testimony and with the crime scene itself. This would have been significant and compelling impeachment evidence. If Wolcott was mistaken about such a significant crime scene detail, what did he really know about the murders? This was the precise line of cross-examination trial counsel used with a jailhouse informant who testified. (See T.p. 1281)

Counsel had this same information in another form in their files, but failed to use it:

Wolcott’s earlier statements also revealed two compelling inconsistencies that counsel failed to use, one that was vital to establishing the O.R.C. § 2929.04(A)(3) specification (alleging that Noling killed Mrs. Hartig because she was a witness to Mr. Hartig’s shooting):

Like Dalesandro, Wolcott’s testimony evolved to ensure the prosecution could prove each element of the offenses charged.

At trial, the prosecution offered Jill Hall’s testimony to corroborate Wolcott’s story. The trial court excluded much of her testimony, but Hall was allowed to testify regarding Wolcott’s distressed condition and her call to the police. (T.p. 935-36) The obvious assumption the jury made was that Hall called the police to report the murders. Had trial counsel received Hall’s Grand Jury testimony, they could have impeached her, which would have affected both her credibility and Wolcott’s.

There were significant factors that counsel could have used to impeach Hall’s voir dire, and testimony. For example, at trial Hall testified that Wolcott described a little white house. (T.p. 927) Before the Grand Jury, Hall did not reference Wolcott’s description of the house. (See generally Ex. TT) Moreover, Hall changed her testimony as to who was present at the time of the Hartig’s murders. (See generally id.) Before the Grand Jury, Hall claimed Wolcott placed himself, Noling, St. Clair, Dalesandro, and Wolcott’s brother at the scene. (See id. at 8) At trial, Hall did not mention Wolcott’s brother. (See T.p. 927) But, the court of appeals found this discrepancy to be “harmless.” (Opinion at 16) It would not have been so influential as to fundamentally undermined Hall’s testimony regarding Wolcott’s admission.” (Id.) The court of appeals holding, however, does not withstand scrutiny. Her testimony was fundamentally inconsistent with earlier testimony. And adding a brother would have been inconsistent with Dalesandro and Wolcott’s testimony as well. (T.p. 841, 1046.

But it was not just the Brady evidence that could have been used to attack Hall’s testimony. Her earlier statements to the police that were provided to defense counsel demonstrate very real problems with her story, but counsel failed to use them. In 1990, Hall’s statement evidences no knowledge of the Atwater murders; she does not mention them until 1992:

But, when Hall describes what she knows of the murders, details are inaccurate and inconsistent with other witnesses. Unsurprisingly, those inaccurate and incorrect details were left out of her trial voir dire and testimony:

Hall also claimed that she contacted the Stark County Sheriff’s Department about the murders after speaking to Wolcott. (T.p. 936) Trial counsel had no documentation of this contact—an inconsistency that they should have investigated and crossed-examined her on.

Julie Mellon testified at the Grand Jury, but not at trial. Her testimony is inconsistent with an earlier interview. The undated interview makes no mention of a murder, saying instead that Wolcott came to Hall’s apartment and said that he was in on a robbery with Noling and that Noling “freaked out.” (Response Ex. U) At the Grand Jury, Mellon testified that Wolcott said, “that everything went wrong, and that some people were dead…” (Response Ex. V) The prosecution failed to disclose this transcript. (See Exs. A-C)

While Mellon did not testify at trial, trial counsel could have used these inconsistencies to impeach Hall’s testimony. As noted infra, the trial court excluded much of Hall’s testimony. Mellon’s testimony would have further called into question the veracity of Hall’s trial testimony and voir dire—it was yet another inconsistent account of the events that took place at Hall’s apartment.

Somehow, the court of appeals found that the “omission” of the killings reference is not significant. That finding is so incredulous, Noling is hard pressed to offer a responsive argument. Properly trained law enforcement officers would not fail to document a witnesses allegation that a murder had been committed. And, Mellon, would not fail to mention a murder because of nerves or a failed memory. (Opinion at 17) This is not a minor omission and the court of appeals findings with respect to this witness border on the absurd.

The differences between Mellon’s statement to law enforcement and her Grand Jury testimony would also have raised additional concerns about the investigation of this case by the Portage County Prosecutor’s Office. She was yet another witness whose story changed between the time of the initial investigation in 1990 and the time that the Prosecutor’s Office began investigating on its own. It is simply inconceivable that if Mellon had told the authorities that Wolcott had come to Hall’s apartment and talked about a murder that law enforcement would have failed to mention a murder in a report of the interview. (See Ex. W) Her inconsistent Grand Jury testimony would have highlighted the improbability of Hall’s story during her voir dire at trial.

The prosecution’s failure to disclose favorable evidence, material to guilt or sentencing, to an accused violates the Due Process Clause, regardless of the prosecutor’s good or bad faith. Brady, 373 U.S. at 87. The duty to disclose includes impeachment and exculpatory evidence. United States v. Bagley, 473 U.S. 667, 676 (1985).

To comply with Brady, “the individual prosecutor has a duty to learn of any favorable evidence known to others acting on the government’s behalf in this case[.]” Kyles v. Whitley, 514 U.S. 419, 437 (1995). Evidence is material “if there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. at 433-34. Brady requires a cumulative review of the suppressed evidence. Id. at 436.

•Kenneth Garcia. 1) Grand Jury testimony—testified Ron Craig threatened to frame him if he did not cooperate. (Ex. D, p. 1); 2) Pre-trial statement, after Craig’s threat, changed how many .25 caliber handguns Dalesandro sold him—from one to two. (Compare Ex. E with Ex. F)

•Gary St. Clair. 1) 3 sets of interview notes—only one set includes a threat made by the prosecutor to St. Clair. (Exs. G, H, I); 2) Handwritten notes from officers Kaley/Doak—denied knowledge of the Hartig murders, but did confess to another robbery. (See Ex. N); 3) November 28, 1995 interview—several inconsistencies—a) changes the time he awoke on April 5, 2005; b) details conversations he heard in the Hartig home that are not accounted for in other statements; and c) states that Noling put the .25 in his coat pocket. (See Ex. O); 4) May 4, 1995 interview—claimed Noling put the gun is his pocket, or in the glove box. (See Ex. P); 5) May 5, 1995 Grand Jury testimony— a) testified that he did not witness Noling shoot anyone; the Hartigs were dead when he arrived in the kitchen. (Compare Ex. Q, p. 11 with Ex. O) b) despite detailed recollection of what Noling and the Hartigs said in earlier statements, St. Clair claimed he could not hear what was said when testifying before the Grand Jury. (Compare Ex. Q, p. 12 with Ex. P)

•Jim Geib. 1) Interview—describes dark blue midsize car leaving “that general location” [the Hartigs’] on April 5, 1990 around 4:30 p.m., with one person in the car. (See id. at Ex. K)

•Hartig insurance agent William LeFever. 1) Interview—indicates he “fits with the Jim Geib description.” (See id. at Ex. J) This is particularly significant in light of Dr. Cannone’s reference to an insurance agent with a defaulted loan to the Hartigs. (Ex. L)

•Robyn Elliott. 1) Grand Jury testimony—a) Expressed uncertainty about the date of the Trandafir party, used at trial to demonstrate Noling’s knowledge of the murders prior to media release. (Compare T.p. 1173 with Ex. M); b) Contradicted trial testimony that Noling threatened to kill Wolcott. (Compare Ex. M, p. 13 with T.p. 1179); c) Testified that Noling and St. Clair were talking and laughing about a murder, contradicted her trial testimony describing this conversation as private, between her and Noling, stating that she was not sure if anyone else overheard. (Compare Ex. M, p. 10 with T.p. 1179)

•Butch Wolcott. Investigative report—claimed Noling up tied the Hartigs in kitchen, (see Ex. R), which is inconsistent with his trial testimony and the crime scene.

•Jill Hall. Grand Jury testimony—inconsistencies included—a) claiming Wolcott placed himself, Noling, St. Clair, Dalesandro, and Wolcott’s brother at the scene, but at trial she did not mention Wolcott’s brother. (Compare Ex. TT, p. 8 with T.p. 927) The Grand Jury testimony was also inconsistent with Dalesandro and Wolcott’s testimony. (T.p. 841, 1046)

•Dalesandro. 6/29/95 interview—1) told authorities Noling killed the Hartigs because they got “hostile.” (See Ex. S, pp. 2, 4) Once he mentioned “witnesses” (see id. at p. 1), but the thrust was that Noling killed the Hartigs because they got “hostile.” (See id. at pp. 2, 4) At trial, Dalesandro testified Noling killed to eliminate witnesses. (T.p. 1056) The prosecution needed Dalesandro to say Noling killed “witnesses” to establish the O.R.C. § 2929.04(A)(3) specification Noling faced; 2) detailed extensive conversation between Noling and St. Clair in the car, (See Ex. S, p. 4), which he also testified to at trial. But, before the Grand Jury, he claimed he could not hear this conversation. (See Ex. T, p. 6) Grand Jury testimony—testified that Noling and St. Clair gave him directions to Hartig home. (See Ex. T, p. 5) At trial, hastening to implicate Noling as the mastermind, Dalesandro testified Noling alone gave him directions. (T.p. 1047) Dalesandro was unclear on whether an old man was in the front yard of the home, but expressed no doubts at trial. (Compare Ex. T, p. 2 with T.p. 1050) Dalesandro changed the car passengers’ locations. (Compare Ex. T, p. 4 with T.p. 1049) Finally, Dalesandro told the Grand Jury that Noling carried the weapon he stole from the Hughes’ robbery, but claimed at trial Noling was carrying a second, small handgun. (Compare Ex. T, p. 7 with T.p. 1064)

•Julie Mellon.⁶ 1) Interview—no mention of a murder in the interview, saying instead that Wolcott came to Hall’s apartment, that there was a robbery, and that Noling “freaked out.” (See Ex. U); 2) Grand Jury—testified that Wolcott said, “that everything went wrong, and that some people were dead…” (See Ex. V)

•Doris Jones. Interview—stated that Mr. Hartig told her husband, at a picnic, that he had money in the house, but that nobody would ever find it. (See Ex. X)

•Lewis Lehman. 1992 refusal to be polygraphed. (See Ex. Y) Lehman was fingerprinted, photographed, and questioned about the Hartig murders. (See id.)

•Hartig phone records. Unable to ascertain whether Mr. Hartig made the phone call to his insurance agent that Dr. Cannone described. Authorities obtained the Hartigs’ phone records but records accessed by the Plain Dealer are incomplete. (See Ex. Z)

This Brady material demonstrates the significant witness inconsistencies, and the evolution of ever-more incriminating stories inculpating Noling. Under Kyles, the evolution of a witness’s testimony over time is relevant to the Brady analysis. 514 U.S. at 444. This evidence further provides two alternative suspects that trial counsel could have pursued in Noling’s defense—with a disinterested witness’s description that fits one of those agents. Moreover, the suppressed evidence suggested an underhanded plot, with witnesses coerced and threatened if they did not say what Craig wanted them to say.

The withheld evidence also demonstrates that the prosecution presented false evidence, in violation of the Fourteenth Amendment. Giglio, 405 U.S. at 153. Prosecutors cannot create a materially false impression regarding the facts of the case or the credibility of a witness. The knowing use of false testimony entitles the accused to a new trial “if there is any reasonable likelihood the false testimony could have affected the verdict.” United States v. Agurs, 427 U.S. 97, 103-04 (1976); Napue v. Illinois, 360 U.S. 264, 271 (1959).

Dalesandro’s testimony that he retrieved the murder weapon from his car was perjured. The police search of Dalesandro’s car, at the time of his arrest, would have located the weapon he claimed was in the glove compartment. The prosecution allowed Dalesandro to testify to facts it knew could not have possibly been true. This deliberate deception was incompatible with “rudimentary demands of justice.” Id. at 153 (citations omitted).

Cumulative review of the suppressed evidence demonstrates a “reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” Id. at 433-34, 436. This is particularly apparent because there was a lack of physical and/or forensic evidence in this case—meaning that the credibility of the State’s witnesses was crucial. Banks, 540 U.S. at 701. The withheld documents would have significantly undermined the State’s case in chief.

If, however, the jury found differently, the suppressed evidence also would have been relevant to the penalty phase. The nature and circumstances of the offense are relevant to the jury’s sentencing determination. See O.R.C. § 2929.04(B). If the case went to the penalty phase, evidence of coercion, alternative suspects, and significant and compelling witness inconsistencies would have led the jury to impose a sentence less than death.

“From beginning to end the case is about who committed the crime.” House v. Bell, __ U.S. __, 126 S. Ct. 2064, 2079 (2006). The Hartig’s murders were a whodunit. Trial counsel explicitly told the jury this in opening statement—“What we’re here to argue about is who committed these crimes.” (T.p. 642-43; see also T.p. 645) Effective counsel would have presented the crime scene evidence and the information relating to Lehman and LeFever.

Evidence in counsel’s possession suggesting an alternate perpetrator, included:

•Police documentation. Lehman owned a .25 caliber Titan handgun, one of four brands that BCI identified as possible murder weapons. (Ex. AA)

•Crime scene report. The Hartigs were shot sitting at kitchen table (Exs. CC, DD); one subject was sitting at the table facing the door (Exs. CC, DD); no struggle and no sign of alarm (Id.); Mr. Hartigs’ wallet was undisturbed (Ex. CC); and a desk was ransacked with papers on the floor. (Id.) This evidence suggested the Hartigs knew the perpetrator.

•LeFever interview. 1) He always conducted business at the Hartigs’ kitchen table; 2) Police mirandized him before questioning. (Ex. BB)

Trial counsel also told the jury in opening statement that the prosecution’s witnesses were not credible. “Now the reason we’re here in this case is because we’re submitting to you that many of the prosecution’s witnesses don’t have any credibility at all.” (T.p. 643-44) And, the lack of credibility in the prosecution’s case was the central theme of trial counsel’s closing argument. (See T.p. 1467 et seq) Establishing as many significant and compelling inconsistencies as possible was thus consistent with, and central to, Noling’s defense. Compelling evidence demonstrating that the State’s case could not be trusted that was in counsel’s possession, but went unused, included:

•St. Clair. 1) April 15, 1993 statement—indicated that Craig threatened to have the Murphys testify that he robbed them, along with Noling. (Ex. EE) The record reveals that Noling committed this robbery alone; 2) March 12, 1993 competency evaluation—reveals that he was in developmentally handicapped classes (Ex. FF, p. 4); had borderline intellectual functioning, with a full scale IQ of 76. (Id. at 6-7)

?Dr. Grzegorek. Letters with information incluing—attributing Wolcott’s spotty memory to sexual abuse. (Ex. HH) Dr. Ofshe notes that this explanation “is utter nonsense.” (Ex. GG, p. 2) Dr. Ofshe explains that repression is little more than “rank speculation” that “has been rejected by the scientific community.” (Id.) Instead of retrieving memories, Dr. Grzegorek’s involvement served only to “rationalize the creation of beliefs that benefited Wolcott.” (Id.); Wolcott “continues to question his own culpability” and “is not certain as to whether or not what he is remembering is real or part of ‘going crazy.’” (Ex. HH, p. 2); interviews with Wolcott should be conducted “in a firm, directed, but non-pressured fashion.” “[H]e may either become more obstinate if overly pressured or will produce information to simply satisfy demand and that the information produced will not be able to be verified through other sources.” (Id. at pp. 3-4) Dr. Grzegorek’s letter is oddly prescient; Wolcott affied that the prosecution used high pressure tactics to coerce inculpatory statements from him. (See T.d. 205, Ex. F); Wolcott has only begun to believe in the last six or seven months “that it did happen the way I remember.” (T.d. Ex. II, p.1); it was “still very hard to realize that it’s true.” (Ex. U) Wolcott expressed his need for “this to be over.” (Id. at 2); Wolcott expressed concern that he might have been more involved than he recalls. (Id.) Dr. Grzegorek’s reports also demonstrate that the prosecution violated Giglio. The prosecution relied heavily on Wolcott’s testimony, despite his repeated statements that he was unsure of these events and despite the doctor’s inability to ascertain whether Wolcott was really recalling these events. The prosecution was on notice that Wolcott’s testimony was untruthful, but presented it anyway. But, trial counsel failed to offer this evidence to Noling’s jury.

•Jill Hall. 1) In 1990, stated that Wolcott told her about robberies committed in Alliance, Ohio. A few years later, she claimed Wolcott told her about the murders. (Compare Ex. JJ with Ex. KK); 2) In 1992, stated that Noling, St. Clair, Wolcott, Wolcott’s brother, and some other guy went to Atwater. However, during her voir dire and trial testimony, Hall failed to mention Wolcott’s brother. (Compare Ex. KK, p. 2 with T.p. 927); 3) Claimed she contacted the Stark County Sheriff’s Department about the murders after speaking to Wolcott. (T.p. 936) Trial counsel had no documentation of this contact.

•Joseph Dalesandro. 1) Pre-trial statements and testimony varied as to why Noling killed the Hartigs. At times he indicated Noling killed them to eliminate witnesses. (Compare T.p. 1054 with Ex. LL-OO)

•Butch Wolcott. 1) In 1992, claimed Noling tied the Hartigs up in the kitchen, but did not testify to this fact, which is inconsistent with the evidence presented at trial. (Compare Ex. PP, p. 83 with generally T.p. 810-918); 2) Testified heard shots, a lady scream, then some more shots, but did not divulge this fact in earlier statements. (Compare T.p. 848 with Ex. PP); 3) Testified Noling said he killed the lady because she saw them, could tell the police, but did not divulge this in earlier statements. (Compare T.p. 851 with Ex. PP)

• St. Clair. 1) March 1993—did not know the street where the Hartigs lived, but in April 1993 indicated they went east on Moff Road. (Compare T.p. 508 with Ex. RR)

Many of these facts were of particular significance. For example, two witnesses added testimony that Noling killed Mrs. Hartig because she was a witness to Mr. Hartigs’ murder. This was an extremely significant fact since Noling was charged with the O.R.C. § 2929.04(A)(3) capital specification. This necessarily required the prosecution to adduce testimony from a witness that Noling killed to eliminate witnesses. The evolution of this testimony would have been a significant and compelling fact with which the jury could have assessed credibility.

The evidence in trial counsel’s possession would have been consistent with their trial strategy as expressed in their opening statement. Trial counsel argued this case was a whodunit, and that Noling was not the individual who did it. (T.p. 642-43, 645) In their files were documents that suggested other potential suspects, a fabrication defense, and witness inconsistencies that would have dismantled the credibility of the prosecution’s case. In addition, counsel should have been aware that presentation of Hall’s testimony was a violation of Giglio. 405 U.S. at 153. While not admitted as substantive evidence, Hall did put on the record that Wolcott confessed to the murder. The prosecution relied on this testimony in state court litigation. (See, e.g., State’s Merit Brief filed in Supreme Court on 12/22/99, pp. 4-5) While limited, Hall testified that she called the police in response to her conversation, which left the impression that she turned Noling in for murder, rather than for the Alliance robberies.

“It was not that such information could not be found, or that counsel made a reasoned decision to withhold the information for tactical or strategic reasons. The information was not presented to the jury because counsel never took the time to develop it.” Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1995) (referring to failure to present evidence about defendant’s history, character, background, and organic brain damage during mitigation). Trial counsel’s errors and omission, and their cumulative effect, denied Noling his right to counsel. See Washington, 466 U.S. 668; Harris v. Wood, 64 F.3d 1432 (9th Cir. 1995). This Court should have little confidence in the result produced at trial based on trial counsel’s failure to vigorously attack the State’s case.

The information Noling presented to the trial court, in both his Brady and ineffective assistance of counsel claims, provides strong support for the position Noling has maintained for nearly two decades—he did not kill Bearnhardt and Cora Hartig. Noling’s co-defendants recanted their testimony and confessed their lies years ago. Review of the above information dismantles the few final strands that held this case together—

• Noling had no knowledge of these crimes before the media publicized them; and

Noling is actually innocent of these crimes. His convictions and death sentence violate the Eighth Amendment. See Herrera v. Collins, 506 U.S. 390, 419 (1993) (O’Connor, J., joined by Kennedy, J., concurring) (“executing the innocent is inconsistent with the Constitution”); Id. (O’Connor, J., joined by Kennedy, J., concurring) (“the execution of a legally and factually innocent person would be a constitutionally intolerable event.”); Id. at 429 (White, J., concurring) (“I assume that a persuasive showing of ‘actual innocence’ made after trial, even though made after the expiration of the time provided by law for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this case.”); Id. at 430 (Blackmun, J., joined by JJ. Stevens and Souter, dissenting) (“Nothing could be more contrary to contemporary standards of decency … than to execute a person who is actually innocent.”); Schlup v. Delo, 513 U.S. 298, 316 (1995). See also House v. Bell, 311 F.3d 767, 768 (6th Cir. 2002).

The materials the prosecution suppressed, as well as the materials trial counsel failed to use, would have proved Noling’s innocence of the Hartig murders. At a minimum, the jury would have had serious doubts about Noling’s guilt, which would have resulted in an acquittal.

The court of appeals rejected the trial attorneys affidavits, noting that the information they provided “was available at the time of the filing of appellant’s first postconviction relief petition[.]” (Opinion at 27) This holding is patently incorrect. Noling’s trial and postconviction counsel executed affidavits identifying numerous documents obtained via The Plain Dealer’s public records request that they had not seen previously. (See Exs. A-C) Unless the law requires counsel to be psychic, counsel cannot know what materials the prosecutor has hidden in their files that should have been disclosed under Brady.

This Court reviews the trial court’s dismissal of Noling’s successor postconviction petition and new trial motion under the abuse of discretion standard. See State v. Schiebel, 55 Ohio St. 3d 71, 564 N.E.2d 54, syl. (1990) (new trial motion); State v. Burch, 2004 LEXIS App. 4825, *5-6 (Wood Ct. App. 2004) (postconviction petition). The trial court abuses its discretion when the “court’s attitude is unreasonable, arbitrary or unconscionable.” See Blakemore v. Blakemore, 5 Ohio St. 3d 217, 217, 450 N.E.2d 1140, 1142 (1983).

Under O.R.C. § 2953.23, Noling needed to demonstrate two facts for the trial court to consider his successor postconviction petition. First, he needed to demonstrate that he “was unavoidably prevented from discovery of the facts upon which” he relies in his claim. O.R.C. § 2953.23(A)(1)(a). Second, he had to show “by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found [him] guilty of the offense of which [he] is convicted[.]” O.R.C. § 2953.23(A)(2).

Noling only faces the more onerous § 2953.23 successor standard for two reasons that should not be attributed to him. First, the prosecutor failed to meet its obligations under the Ohio Rules of Criminal Procedure and Brady. Second, defense counsel failed to provide Noling’s postconviction counsel with all of their trial materials.

Holding Noling to the more onerous § 2953.23 standard, while at the same time precluding him by State law from independently accessing these materials via a public records request, rewards the prosecutor for tainting the process. Similarly, if Noling had access to public records, he would have discovered the materials his trial attorneys failed to disclose to him in a timely fashion.

Steckman is ripe for reconsideration, or modification. Noling was as diligent as he could be, he simply lacked the power under Ohio law to obtain the materials with which he is presently litigating. In death penalty cases, where more process is due, not less, such a result cannot stand. See Lockett v. Ohio, 438 U.S. 586, 605 (1978); Woodson v. North Carolina, 428 U.S. 280, 305 (1976) (plurality opinion). See also Evitts v. Lucey, 469 U.S. 387, 401 (1985) (“When a State opts to act in a field where its action has significant discretionary elements, it must nonetheless act in accord with the dictates of the Constitution—an, in particular, in accord with the Due Process Clause”).

Even if this Court fails to reconsider, or carve out an exception to the Steckman rule, Noling should succeed on his successor postconviction petition. The disingenuous manner in which court of appeals dismissed his petition demonstrates the strength of Noling’s substantive claims.

The Court of Appeals found that Noling failed to meet both prongs of the statute. However, the court’s review of the diligence prong was unreasonable. Moreover, the court’s treatment of each individual piece of evidence separately in assessing whether Noling had met his burden under O.R.C. § 2953.23(A)(2) was incorrect as a matter of law. Such evaluation is also inconsistent with the type of evidence Noling presented; reviewing courts may not parse through Brady evidence piece by piece—it must be considered cumulatively. Kyles, 514 U.S. at 436. Similarly, counsel’s performance cannot be accurately assessed by piecemeal review of counsel’s deficiencies. See Harris, 64 F.3d at 1438. Throughout its opinion, the court made inaccurate and incorrect factual findings. Further, nowhere in its opinion does the court of appeals address Noling’s freestanding actual innocence claim.

4.2.1 Noling was unavoidably prevented from discovering the facts on which he relies

Prior to trial, Noling filed four motions requesting disclosure of all evidence to which he was entitled under the Fourteenth Amendment and Ohio R. Crim. P. 16. (See T.d. 30, 40, 46, 77) The prosecution opposed some of these requests. (See, e.g., T.d. 62)

The Supreme Court has confirmed the defendant’s right to rely on the prosecution’s representation that it provided all Brady material. Banks, 540 U.S. at 693 (citing Strickler v. Greene, 527 U.S. 263, 283-84 (1999)). See also Dobbs v. Zant, 506 U.S. 357, 359 (1993) (per curiam) (affirming defendant’s right to rely on prosecution’s representations with respect to the record). The prosecution’s failure to turn over the requested Brady materials unavoidably prevented Noling from discovering this evidence.

After his conviction and sentence, Noling filed a postconviction petition alleging actual innocence of the Hartig’s murders; that Craig coerced witnesses into fabricating evidence; and the prosecutor committed misconduct, including Brady violations. Noling did all in his power to investigate and prove these claims—he gathered the support available to him, including trial files and his co-defendants recantations. He requested a hearing and subpoenaed relevant documents. (T.d. 205, 206, 212, 219) However, the trial court conducted a truncated proceeding, allowing Noling to present only newly discovered evidence. (T.d. 240, T.p. 3) The trial court precluded Noling from presenting numerous witnesses’ testimony—only the defense investigator testified—and from subpoenaing documents. (See T.d. 214-15, 220-26, 229-33, 239) Under Ohio law, Noling could not obtain the public records used as exhibits in these proceedings. See Steckman, 70 Ohio St. 3d 420, 639 N.E.2d 83. Noling was unavoidably prevented from discovering the materials because he did not have the court’s authority or the right under Ohio law to do so. See id. The trial court dismissed the postconviction petition. State v. Noling, Case No. 95-CR-220, slip opin. (Portage C.P. Apr. 9, 1998).

In his appeal to the court of appeals, Noling raised the failure of the trial court to award him a complete evidentiary hearing, which was overruled. State v. Noling, 2003 Ohio App. LEXIS 4508 (Portage Ct. App. Sept. 19, 2003). In this Court Noling again raised that issue, but this Court refused to exercise its discretional jurisdiction to hear his appeal. State v. Noling, 101 Ohio St. 3d 1424, 802 N.E.2d 154 (2004).

Then, in 2003, The Cleveland Scene published an article arguing that Noling was innocent and that Craig coerced witnesses. This was not news to Noling’s defense team—the article relied on Noling’s state court pleadings, and some limited interviews. Noling’s defense team already had this information—this article opened no doors for Noling. The Scene made no public records requests. And, the law remained constant—Noling had no right to access public records. See Steckman, 70 Ohio St. 3d 420, 639 N.E.2d 83. Despite The Scene article Noling still could not access the documents that he used in the trial court below.

Subsequently, in 2006, The Plain Dealer investigated Noling’s case, publishing articles in support of a new trial. It also did one thing the law barred Noling from doing—it accessed public records materials, relied on them, and then released them to the public.⁷

These documents provide significant support for the position Noling has litigated for over a decade: he did not kill the Hartigs, the State withheld evidence, and witnesses were coerced. Through the public records, Noling learned new information denied to him by the trial court and by Ohio’s public records law. Absent The Plain Dealer’s request and release of these records, Noling had no way to obtain the documentary support for claims he has been litigating since 1997. Impediments by the state court and state law precluded Noling from fully investigating his claims. See Strickler, 527 U.S. at 285.

After The Plain Dealer released these records, Noling’s trial and postconviction counsel executed affidavits identifying numerous documents that they had not seen previously. (See Exs. A-C) Investigation also revealed that some of the documents Noling believed the prosecution failed to provide his trial counsel were, in fact, in trial counsel’s possession. Trial counsel failed to provide these materials to Noling previously. (See Exs. A, C)

There was little more Noling could do than ask for trial counsel’s file—he could not force them to turn over what he did not know existed. Counsel’s failure to turn over the complete file is not unlike the prosecution’s failure to turn over Brady materials. Both Strickler and Banks indicate counsel can rely on a prosecution’s assurance that it has turned over all evidence required under the law. Banks, 540 U.S. at 693. See also Dobbs, 506 U.S. at 359 (per curiam). If it is reasonable to rely on a prosecution’s representation of complete disclosure, it is equally reasonable to rely on trial counsel’s similar representation. Such reliance is particularly well-founded because counsel is ethically bound to turn over these materials. See, e.g., Office of Disciplinary Counsel v. Cikraji, 35 Ohio St. 3d 7, 517 N.E.2d 547 (1988) (disciplining attorney in part for refusing to turn over client’s file). Noling had a right to expect, when postconviction counsel requested his files from lead trial counsel, that all materials were fully disclosed. Counsel’s less-than-complete disclosure unavoidably prevented Noling from discovering the materials on which he relies. The Court of Appeals assumed that Noling was unavoidably prevented from discovering the evidence that supports his ineffective assistance of counsel claim. (Opinion at 23)

Had the prosecution turned over the evidence suppressed, and had trial counsel used the additional information, no reasonable factfinder would have found Noling guilty of the Hartigs’ murders. In assessing this component of Noling’s claims, piecemeal review is inappropriate. Kyles, 514 U.S. at 436; Harris, 64 F.3d at 1438. On its own, no one piece of evidence would convince a reasonable jury there is reasonable doubt. Rather, it is the cumulation of the evidence that would result in a reasonable juror having reasonable doubt.

The crime scene suggested a perpetrator who knew the Hartigs—the Hartigs were seated at the kitchen table when they were shot; the perpetrator sat at the table facing the Hartigs; no struggle or sign of alarm was present; Mr. Hartig still had his wallet; and the Hartigs’ desk had been ransacked. (Exs. CC, DD)

This was in stark contrast to the Alliance robberies that Noling committed. Beyond the fact that the victims were elderly, there are significant differences between the three crimes, including: 1) no violence was associated with the Hughes and Murphy robberies; 2) Noling accidentally fired his weapon during the Murphy robbery and immediately checked on Mrs. Murphy’s well-being (T.p. 1370, 1376); 3) the robberies were in the youths’ neighborhood; they walked through the woods to commit the crimes (T.p. 835, 954); 4) the robbery victims were placed in closets, bathrooms, or bedrooms (T.p. 1044, 1375); 5) the phone wires were cut during the robberies (T.p. 1044); and 6) the items Noling stole from both the both robberies were left undisturbed at the Hartig home. (See, e.g., T.p. 831, 837, 953, 958, 1375-76)

Noling did not know the Hartigs, but there were two insurance agents, both with a potential motive for murder disclosed by Dr. Cannone. (Ex. L), and both were credible suspects. Lehman owned the right gun (See Ex. AA; T.p. 1243) and he lied to authorities about having sold it years before. (Ex. UU) And, his refusal to submit to a police-requested polygraph makes him look more suspicious. (Ex. Y) The court of appeals takes issue with Noling’s assertion that Lehman refused the polygraph, his statement “does not imply an outright refusal on Lehman’s behalf.” (Opinion at 20) This is mere semantics. Lehman clearly declined to take a polygraph at that time. And no records currently available to Noling indicate that he later submitted to that request. Nothing in the record supports the court of appeals’ conclusion

Similarly, LeFever, conducted business at the Hartig’s kitchen table and police thought enough of him as a suspect, most likely based on the Geib description (Ex. K), that he was mirandized prior to questioning. (Ex. J)

In addition to two viable alternative suspects, the evidence Noling presented to the trial court demonstrated that many of the State’s witnesses were liars and that the State’s principal investigator used coercive tactics to elicit ever more incriminating statements from their witnesses. Indeed, the evidence shows how Craig systematically created a case against Noling through his improper tactics.

More than one witness spoke of threats made by Craig made to fabricate evidence if they failed to cooperate, and a prosecutor threatened St. Clair. (See D, E, F, N-P) The court of appeals, however, seemed to misunderstand the claim Noling was levying, finding that Garcia “was pleased to speak with the assistant prosecutor conducting the grand jury examination as opposed to Craig because Craig ‘scared’ him.” (Opinion at 11) This misses the very essence of Noling’s claim – counsel could have levied a claim of prosecutor misconduct and coercion based on Garcia’s (and other witnesses) claims about Craig. Whether he was pleased to speak with the prosecutor (a fact Noling would assert is difficult to ascertain from the cold record), that does not erase the fact that Craig threatened to falsely implicate him in a crime to obtain his assistance. How the court of appeals could reach such a conclusion, while noting at the same time that “trial counsel may have used this evidence at trial” is beyond comprehension. (See Opinion at 12)

And, the testimony of virtually every witness who testified before the Grand Jury or at Noling’s capital trial was riddled with inconsistencies. (See, generally, Exs. D-F, M, R, T-V, EE-KK, SS-TT) The court of appeals found that impeachment evidence has been insufficient in Ohio courts to invoke jurisdiction to entertain a successive postconviction petition. (Opinion at 10-11) But, impeaching evidence that would contradict a witness’s testimony has required reversal on Brady grounds in the federal courts. Jamison v. Collins, 291 F.3d 380, 389-90 (6th Cir. 2002) (granting relief under Brady in part of withheld impeaching evidence.)

And the findings made with respect to specific inconsistencies are nonsensical. Addressing inconsistencies found in St. Clair’s statements, the court noted “[w]hile the statements do not match, they are not completely inconsistent.” (Opinion at p. 12) If they do not match, by definition they would be inconsistent.

This evidence is in addition to the material presented at trial, and in Noling’s first postconviction petition. (T.d. 205-06, 212, 219), evidence that suggested the State’s case could not be trusted. In particular, Noling presented the recantations of co-defendants Dalesandro and Wolcott, both of whom claimed that they were coerced and manipulated into falsely inculpating Noling in the Hartigs’ murders. (T.d. 205, Exs. F, Y) Noling also incorporates by reference § 4.2.4 to discuss the strength of the State’s case at trial, because the trial court should have considered all evidence, old and new, when making its assessment. See House, 126 S. Ct. at 2077.

The central proof against Noling “has been called into question.” House, 126 S. Ct. at 2086. And, Noling has put forward evidence of a different suspect. Id. No reasonable factfinder would have found Noling guilty. Noling has presented compelling evidence that the State violated Brady and that his trial attorneys rendered deficient performance to his prejudice. Cumulatively, these errors demonstrate that a jury would no longer find Noling guilty of the Hartig murders, the jurors would have reasonable doubt. Failure to grant Noling relief violated his Fifth, Eighth, and Fourteenth Amendment rights. See Herrera, 506 U.S. 390; Brady, 373 U.S. 83; Strickland, 466 U.S. 668. After complete briefing, this Court should vacate Noling’s convictions and remand this case for a new trial.

Under O.R.C. § 2945.79 a defendant may obtain a new trial “[w]hen new evidence is discovered material to the defendant, which he could not with reasonable diligence have discovered and produced at the trial.” O.R.C. § 2945.79(F). See also Ohio R. Crim. P. 33(A)(6). A defendant is also entitled to a new trial where misconduct by the prosecution materially affects his substantial rights. O.R.C. § 2945.79(B). See also Ohio R. Crim. P. 33(A)(2).

This Court delineated the standard for granting a new trial based on newly discovered evidence in State v. Petro, 148 Ohio St. 505, 76 N.E.2d 370 (1947), and reiterated it in State v. Hawkins, 66 Ohio St. 3d 339, 612 N.E.2d 1227 (1993). The Petro test requires the movant to show that newly discovered evidence, which could not have been found with “the exercise of due diligence” at the time of trial, discloses a strong probability that it will change the trial results, was not merely cumulative and does not merely impeach or contradict former evidence:

The burden is lower, however, when the new trial motion is based on the prosecutor’s failure to fulfill his or her duties under Brady. “[W]hen the defendant asserts that the new evidence at issue is exculpatory evidence which the government failed to turn over in violation of Brady he should not have to satisfy the severe burden of demonstrating that newly discovered evidence probably would have resulted in acquittal. Rather, the defendant must show only that the favorable evidence at issue was material, with materiality defined according to opinions interpreting the Brady doctrine.” See United States v. Frost, 125 F.3d 346, 382 (6th Cir. 1997) (internal citations and quotations omitted).

While the prosecution’s actions lessen the burden imposed on Noling, he easily meets the Petro’s more stringent requirements. And, the Court of Appeals’ cursory review of Noling’s new trial motion provides little guidance to this Court. It devotes only two pages to Noling’s new trial motion, perhaps recognizing that Noling has met the less-onerous standard. (Opinion at 29-30) Its findings do not withstand scrutiny.

The court of appeals found that “much of the evidence at issue could have been discovered prior to the filing of his motion for a new trial. (Opinion at p. 30) The Court does not identify what evidence, or how it could have been discovered. And, the appellate court, without further explication, held that “(1) the evidence fails to reveal a strong probability of acquittal on the charges and (2) much of the evidence is cumulative of what was presented at trial or merely impeaches or contradicts the evidence presented by the state at appellant’s trial.” (Id.)

There are a multitude of problems the Court of Appeals decision, issues that should be clarified by this Court after full briefing in this matter.

Noling has presented sufficient evidence to demonstrate that a newly discovered evidence, which could not have been discovered previously, would change the result if he is granted a new trial.

For brevity, to demonstrate the strong probability that the evidence presented will change the result if a new trial is granted, Noling incorporates § 4.2.2 of this Proposition of Law.

For brevity, to demonstrate this evidence has been discovered since the trial, Noling incorporates § 4.2.1 of this Proposition of Law.

5.1.3 Could not in the exercise of due diligence have been discovered before the trial

For brevity, to demonstrate that this evidence could not have been discovered before the trial with due diligence, Noling incorporates § 4.2.1 of this Proposition of Law.

The primary evidence used to convict Noling of killing the Hartigs was the word of two co-defendants who received sweet deals in exchange. Even absent the Brady violations and the ineffective assistance of counsel, the evidence against Noling was weak.

In 1995, no physical evidence connected Noling to these murders. His earlier crimes were nonviolent and rather inept. Noling was a bumbling and inept criminal in the 1990s. In early April, he robbed two elderly couples. He stole a .25 caliber handgun during the first robbery, which he accidentally fired into the floor during the second robbery. (T.p. 839, 1043, 1370, 1376) The prosecution argued that some four hours after Noling checked on his victim’s well-being (during the second robbery, after the accidental gunshot (T.p. 1370)) he committed two calculated, execution-style murders.

The prosecution tried to link Noling to the Hartig murders through the two prior robberies, but beyond the fact that the victims were elderly, there are significant differences between the three crimes, including: 1) no violence associated with the Hughes and Murphy robberies; 2) Noling accidentally fired his weapon during the Murphy robbery and immediately checked on Mrs. Murphy’s well-being (T.p. 1370, 1376); 3) robberies were in the youths’ neighborhood—they walked through the woods to commit the crimes (T.p. 835, 954); 4) robbery victims were placed in closets, bathrooms, or bedrooms (T.p. 1044, 1375); 5) the phone wires were cut during the robberies (T.p. 1044); and 6) the kinds of items Noling stole from both the both robberies were left undisturbed at the Hartig home. (See, e.g., T.p. 831, 837, 953, 958, 1375-76)

There also was no physical evidence linking Noling to the Hartigs’ murders. Noling’s fingerprints were not found at the scene, despite the fact that the perpetrator touched many items in the Hartigs’ home. Cigarette butts found at the crime scene were not linked to Noling, or his alleged accomplices. Further, the bullets used to kill the Hartigs did not match the only .25 caliber handgun definitively tied to Noling.

There was no murder weapon introduced at trial. And the prosecution’s witnesses could not consistently place the alleged murder weapon in Noling’s hands. (See, e.g., T.p. 832, 842, 909, 949, 953, 1033-34, 1040, 1048, 1064, 1242-43, 1366, 1376) Moreover, there was substantial evidence that demonstrated that Noling possessed only one .25, and it was not the murder weapon. Wolcott does not mention a second .25. St. Clair does not mention a second .25. Moreover, Dalesandro had consistently maintained that they only had possession of three guns—a .25 automatic, a BB gun, and a sawed off shotgun. (T.p. 1040, 1048) He did not mention that second .25 automatic until three years after the crime and his earlier inculpatory statements. (T.p. 1115) Dalesandro’s belated claims demonstrate that there was only one .25—and that weapon was not used to kill the Hartigs.

And Dalesandro, like Wolcott, paid precious little for his incriminating testimony. Wolcott received complete immunity in exchange for his testimony. (T.p. 886-87) He will not be prosecuted for participating in the crimes for which Noling now sits on death row. (T.p. 886-87) Moreover, the prosecutor agreed to recommend that Dalesandro’s plea bargain be re-instituted if he cooperated at Noling’s trial. (T.p. 1138) Re-institution of Dalesandro’s plea bargain meant that his participation in the Hartigs’ deaths cost him no prison time, as that sentence ran concurrently with his aggravated trafficking sentence. These youths had nothing to lose and everything to gain by implicating Noling in these murders.

Even with these deals, however, Wolcott and Dalesandro could only offer the State testimony riddled with inconsistencies. During Wolcott’s and Dalesandro’s initial questioning, both claimed to know nothing about the Hartig murders. (T.p. 875, 1100) And they continued to assert that lack of knowledge for years.

Of course, both later gave statements inculpating Noling. However, even as they changed their stories, they continued to demonstrate that they knew nothing about the Hartig murders. Discrepancies in Wolcott’s stories included, for example: 1) Wolcott could not take investigators to the Hartigs’ home on Moff Road (T.p. 895); 2) Wolcott asked prosecutor Durst if he was “finally on his side” (T.p. 905); 3) Wolcott said he had been drinking on the day of the murders, describing himself as “toasted,” “dozing off,” as “pretty drunk,” and “wobbling and weaving” (T.p. 910); 4) Wolcott admitted that he did not know what he was telling investigators (T.p. 917). Dalesandro’s discrepancies included, for example: 1) The prosecutor determined that Dalesandro’s statement contained major omissions, was not truthful in part, and minimized his participation in the Hartig murders (T.p. 1008); 2) Dalesandro could not identify the Hartigs’ home (T.p. 1098); 3) Dalesandro could not pronounce Atwater (T.p. 1104); and 4) Dalesandro could not name the road where the Hartigs lived. (T.p. 1109)

Then, six days after the prosecutor revoked Dalesandro’s plea bargain, and the trial court sentenced him to the maximum consecutive sentences for his participation in the Hartig murders, Dalesandro’s memory became fresher and clearer than ever before. He now recalled details never mentioned prior to revocation—seeing an old man outside of the Hartigs’ home, seeing blood on Noling’s clothes, seeing smoke come from Noling’s gun, and Chico. (T.p. 1111-15, 1123) Dalesandro claimed he kept this information from the prosecution because he did not want to get Noling into too much trouble. (T.p. 1113, 1119) The more likely scenario: he made up even more phony information in an effort to get the prosecutor to modify his sentence. (T.p. 1010)

The Hartigs’ murders were a whodunit. The prosecution’s trial case was weak at best. Thus, the evidence presented in Noling’s new trial motion—evidence of alternative suspects, coercion, and witness inconsistencies—is material to the issues.

No evidence was introduced at trial identical to that outlined herein. Review of the trial record reveals this motion is not cumulative of trial efforts.

5.1.6 The evidence does not merely impeach or contradict the former evidence

While this evidence certainly raises serious questions about the credibility of the prosecution’s witnesses, this evidence does far more than impeach or contradict evidence introduced at Noling’s trial. Rather than attacking the claims of a single witness, this evidence shakes the very foundation of the prosecution’s case.

Threats, fabrication, and coercion are established. False stories are brought to light. Added into the mix are two alternative suspects—one owned the right gun, the other matched the description of someone fleeing the scene. This is not merely impeachment evidence.

5.2 The prosecution’s misconduct materially affected Noling’s substantial rights

The evidence delineated is both exculpatory and impeaching under Brady. In addition, portions demonstrate that the prosecution knowingly presented false evidence, or alternatively, failed to correct testimony it knew to be false in violation of Giglio. For brevity, Noling incorporates the facts and arguments contained in §2.2.3, 2.2.6 of this Proposition of Law.

Noling has discovered “new evidence” material to his defense, “which he could not with reasonable diligence have discovered and produced at the trial.” See O.R.C. § 2945.79(F). See also O.R.C. § 2945.79(B). The prosecution withheld material exculpatory and impeaching evidence. And, his trial attorneys failed to use, and then to turn over, exculpatory and impeaching evidence. Under O.R.C. §§ 2945.79(B) and (F) and Ohio R. Crim. P. 33(A)(2) and (6), Noling requests that this Court accept jurisdiction of this case, and after full briefing, order a new trial in this matter.

6. Relief is warranted based on Noling’s successor postconviction petition or new trial motion.

Noling met the burden set by O.R.C. § 2953.23 to proceed on a successor postconviction petition. Similarly, he has satisfied the Petro test for the grant of a new trial motion. Jurisdiction is warranted on this case because Steckman is ripe for re-visitation. Moreover, this court should accept jurisdiction of Noling’s case, and after full-briefing, remand this case to the trial court for a new trial. In the alternative, this case should be remanded to the trial court for discovery and an evidentiary hearing on Noling’s claims.

Tyrone Noling presented compelling dehors the record evidence to support claims that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963), that his trial counsel rendered ineffective assistance of counsel, and that he is actually innocent of the murders for which he sits on Ohio’s death row. At a minimum, he met the burdens imposed by Ohio law to entitle him to a hearing on both the successor postconviction petition and new trial motion.

2. Noling was entitled to a hearing on his successor postconviction petition.

In order to obtain an evidentiary hearing on postconviction claims, a petitioner must: (1) submit evidentiary documents containing sufficient operative facts to support his claims of the substantial violation of his constitutional rights; and (2) show that he was prejudiced. State v. Jackson, 64 Ohio St. 2d 107, 111, 413 N.E.2d 819, 822 (1980); State v. Kapper, 5 Ohio St. 3d 36, 39, 448 N.E.2d 823, 826 (1983). Broad or general conclusory allegations, without demonstrating prejudice, do not warrant a hearing for postconviction petitions. Id.

Tyrone Noling pled sufficient operative facts to warrant a hearing, unlike the petitioners in Jackson and Kapper. Noling’s claims sufficiently pled the deprivation of constitutional rights, and he submitted evidence demonstrating the harm from that deprivation.

Further, Noling offered dehors the record the evidence that was not specious but instead presented operative facts to support the claims. State v. Cole, 2 Ohio St. 3d 112, 115, 443 N.E.2d 169, 172 (1982). Noling met the Cole standard to obtain a hearing; he offered “evidence which, if believed, would establish … that said violation was prejudicial to the defendant[.]” Id. at 114, 443 N.E.2d at 171.

The postconviction process in Ohio consists of two steps. The first step is filing the petition with supporting dehors the record documentation. O.R.C. § 2953.21(A). If the petition contains properly pled and supported claims, then the court must grant an evidentiary hearing. O.R.C. § 2953.21(E). It is at the second step, the hearing, that the petitioner must prove his claims of constitutional violations and establish that he was prejudiced in order to gain relief. The petitioner is not required to prove his claims or to demonstrate prejudice based solely on his petition. To adopt such a position simply reads the evidentiary hearing provision out of the statute and violates Noling’s Due Process rights. See Evitts v. Lucey, 469 U.S. 387, 401 (1985).

Based on his petition and supporting documentation, Noling met the pleading standard necessary to obtain an evidentiary hearing on his postconviction petition. For brevity, Noling incorporates his First Proposition of Law for argument as to the facts and law. Noling supported his grounds for relief with affidavits and other evidentiary documents, the type of evidence outside the record required by O.R.C. § 2953.21(A). Because Noling presented evidence dehors the record, the trial court should not have dismissed Noling’s postconviction petition without an evidentiary hearing.

In order to receive an evidentiary hearing on a new trial motion, Noling needed to “demonstrate that he was unavoidably prevented from discovering the facts upon which he relies[.]” State v. Mitchell, 2004 LEXIS App. 416, *4 (Montgomery Ct. App. Feb. 6, 2004) (citing State v. King, 1993 Ohio App. LEXIS 2913 (Clark Ct. App. June 11, 1993)). Noling demonstrated that his trial counsel rendered ineffective assistance during his capital trial and that the prosecution committed egregious Brady violations; together this evidence demonstrates that Noling is actually innocent of the Hartigs’ murders. Based on his motion and supporting documentation, Noling met the pleading standard necessary to obtain an evidentiary hearing on his new trial motion. Noling incorporates his First Proposition of Law to argue the facts and law supporting this claim.

The trial court abused its discretion in denying Noling an evidentiary hearing on his successor postconviction petition and new trial motion. This Court should accept jurisdiction, and after full briefing, remand this case for an evidentiary hearing on his successor postconviction petition and new trial motion.

Noling filed a motion for discovery and a motion for funds for an expert on November 3, 2006. (T.d. 259-60) The trial court denied those motions as moot on April 24, 2007 after dismissing his motion for relief from judgment his motion for a new trial and his successive postconviction. (T.d. 288) In his motion for discovery, Noling requested specific discovery to support the twenty-two grounds for relief in his successive postconviction petition as well as his motion for a new trial. The court of appeals decision offers little guidance for this Court’s review. There is a wholesale lack of analysis, with the simple finding that “[a]ppellant failed to meet the requirements set forth under R.C. 2953(A)(1)(a) and (b) justifying a hearing on his successive petition. As a result, the trial court did not abuse its discretion in disallowing discovery and denying appellant funds to appoint an expert.” (Opinion at 32)

2. Noling was entitled to discovery as he met the standard for an evidentiary hearing

Noling has repeatedly sought to obtain additional records from the prosecutor’s files. Noling has presented evidence that the prosecutor’s office withheld information from his
counsel. An investigation by The Plain Dealer revealed documentation never before made available to Noling’s current counsel.⁸ The documents discovered by The Plain Dealer included records that supported Noling’s Brady v. Maryland, 373 U.S. 83, 87 (1963), ineffective assistance of counsel, and innocence claims. (See First Proposition of Law) The Plain Dealer obtained this information through a public records request—a tool not available to an inmate challenging his conviction or sentence. See State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994). Noling’s counsel would never have been able to access that information and, in fact, would never have known that it existed, were it not for a newspaper investigation. Noling now has reason to believe that there is additional information in the State’s possession that would support his postconviction and new trial motion claims.

A key example of evidence that additional records exist is a 1992 summary of an interview with Lewis Lehman, a viable alternate suspect in the Hartig murders. The summary states that Lehman remembered the investigators conducting the interview. (Ex. Y) The murders occurred in 1990. This indicates that the Sheriff’s department interviewed Lehman at that time. Yet, even after The Plain Dealer investigation, there is no documentation of this interview. Noling is missing records vital to his claims—including his actual innocence claim.

Noling has presented compelling evidence to support his petition and new trial motion, but discovery could produce additional evidence supporting his claims, and ultimately his innocence. The simple fact is that Noling needs access to information completely within the State’s control. He has no means of accessing and reviewing this information outside of the discovery process. While some of this information has become available to him through The Plain Dealer’s investigation, it was a newspaper reporter, not Noling’s attorneys, who reviewed the information. The reporter is not trained as an attorney and therefore would not necessarily recognize documents that may be legally significant to Noling’s claims. She did not have the intimate knowledge of Noling’s case that his attorneys have. And, her goal in reviewing the records was to find material to write a compelling story within strict space confines—not to find materials in support of Noling’s claims. Moreover, there is no way of knowing what records the State did not provide to her to review. Even assuming that the prosecutor’s office did not engage in the inappropriate withholding of documents, it would have been free to withhold certain types of records under the public records law. See Steckman, 70 Ohio St. 3d 420, 639 N.E.2d 83. Therefore, it is highly likely that there is additional Brady material within the prosecutor’s files that was either not provided to The Plain Dealer or simply were not of import to its story.

Moreover, Noling’s counsel have investigated his case for many years. They have uncovered as much information as they are able without court-ordered access to materials in the State’s control. There is information in the prosecutor’s control that is necessary to fully present Noling’s claims. Some of the most important items sought by Noling in his discovery request include, for example:

In relation to witness statements and notes of witness interviews, Noling has presented evidence that Jill Hall’s trial testimony was significantly different from her initial statement to law enforcement. She gave a statement to law enforcement in 1990 in which she stated that Butch Wolcott told her about some robberies in Alliance. (Exs. JJ, U) Her story changed in 1992 when she told prosecutor’s investigator Ron Craig about a murder. (Ex. KK) Then, at trial, Hall testified that she told police about the murders in 1990. (T.p. 936) It stretches the imagination to believe that if Hall had told police in 1990 that Wolcott had told her about a murder, the investigator would have left such a glaring fact out of the notes. Something happened between 1990 and 1992 to make her change her story—Ron Craig. Likewise, Chico Garcia told police in 1990 that Noling and his co-defendants sold weapons to him—a sawed-off shotgun and a .25 caliber handgun. (Ex. E) The .25 was recovered and determined to not be the murder weapon. (T.p. 1241-43) It was not until 1992 that Garcia mentioned a second .25. (Ex. F) This was after Ron Craig took over the investigation. The requested information could provide information about additional witnesses who changed their stories and could provide more proof that these witnesses were intimidated into changing theirs.

Ohio courts have held that if a petitioner fails to state substantive grounds to warrant an evidentiary hearing on a petition, that a trial court does not abuse its discretion in overruling a request for discovery. State v. Jackson, Trumbull App. No. 2004-T-0089, 2006-Ohio-2651 ¶21, 2006 Ohio App. LEXIS 2512 (May 26, 2006) (citing State v. Samatar, Franklin App. No. 03AP-1057, 2004 Ohio App. LEXIS 2323 (May 25, 2004)). Noling met this burden before the trial court. (See Second Proposition of Law) Noling pled sufficient operative facts to warrant a hearing. His claims sufficiently pled the deprivation of constitutional rights and presented evidence demonstrating that the harm was substantial. Accordingly, Noling should receive discovery.

Even if this Court finds that Noling did not meet the standard to require an evidentiary hearing and therefore discovery, it is fundamentally unfair to require a petitioner to meet that burden without a grant of discovery. Moreover, while the public can access that types of materials Noling needs to support his claims, State ex rel. Steckman v. Jackson, 70 Ohio St. 3d 420, 639 N.E.2d 83 (1994), poses an absolute bar to Noling accessing such documents. Postconviction is a petitioner’s opportunity to test the constitutional validity of his conviction or sentence. Postconviction in Noling’s case was, however, neither adequate nor corrective. For Noling, it was an exercise in futility. A postconviction petitioner must file a petition setting forth grounds for relief and supporting the claims with evidence dehors the record. All this must be done without the benefit of the discovery process available to every other civil litigant—no subpoena power, no way to file interrogatories, no depositions, etc. If a witness refuses to talk to a petitioner’s counsel, that petitioner has no means by which to compel that information. If a petitioner is without funds, he has no means to hire the experts needed to support his claim. Yet, the petition will be dismissed, unless it is supported by fact-specific evidence dehors the record. Most disturbing in Noling’s case is that the State has exhibited a propensity to withhold evidence, yet he has no means to review of the prosecutor’s file.

When a state establishes a program or procedure, that program or procedure must be operated within the confines of the Due Process Clause of the Fourteenth Amendment. Goldberg v. Kelly, 397 U.S. 254, 262 (1970). When a state creates a right to appellate review—even though not required to do so—that system of appellate review must meet the requirements of due process. Evitts v. Lucey, 469 U.S. 387, 401 (1985). Accordingly, Ohio’s postconviction system, pursuant to Evitts and Goldberg, must meet the requirements of due process.

A petitioner in a postconviction proceeding has the initial burden of submitting documentation de hors the record to demonstrate that a hearing is warranted as to the constitutional violations alleged in the petition. State v. Kapper, 5 Ohio St. 3d 36, 38, 448 N.E.2d 823, 826 (1983); State v. Cole, 2 Ohio St. 3d 112, 114, 443 N.E.2d 169, 171 (1982); State v. Pankey, 68 Ohio St. 2d 58, 59, 428 N.E.2d 413, 414 (1981); State v. Jackson, 64 Ohio St. 2d 107, 111, 413 N.E.2d 819, 822 (1980).

The State, consistent with the Due Process Clause of the Fourteenth Amendment, cannot place this initial evidentiary burden upon a petitioner and subsequently deny the petitioner a meaningful opportunity to meet that burden. To deny a petitioner the opportunity to meet the burden placed upon him is to annihilate his right to pursue his postconviction remedies and to make a sham of the process.

In addressing the Fed. R. Civ. P. 6 standard of “good cause” for discovery, the United States Supreme Court imposes the duty to permit the “necessary facilities and procedures for an adequate inquiry” when the petition presents “specific allegations” that “show reason to believe that the petitioner may, if the facts are fully developed, be able to demonstrate that he is… entitled to relief[.]” Bracy v. Gramley, 520 U.S. 899 (1997) (quoting Harris v. Nelson, 394 U.S. 286 (1969)). Bracy’s claim was only a theory, but whether the petitioner will ultimately prevail on his claim is not relevant to whether discovery should be granted. Id. at 908. Discovery is even more deserved in this case because Noling presented evidence, rather than mere speculation, to support his claims. McDaniel v. United States Dist. Court, 127 F.3d 886 (9th Cir. 1997).

“Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation.” Hickman v. Taylor, 329 U.S. 495, 507 (1947). “The purpose of the liberal discovery policy contemplated by the Ohio Rules of Civil Procedure is the narrowing and sharpening of the issues to be litigated.” State ex rel. Daggett v. Gessaman, 34 Ohio St. 2d 55, 56, 295 N.E.2d 659, 660 (1973). This is particularly relevant here as postconviction relief is a civil proceeding. See State v. Milanovich, 42 Ohio St. 2d 46, 325 N.E.2d 540 (1975). See also State v. Harvey, 68 Ohio App. 2d 170, 171, 428 N.E.2d 437, 438 (1980). Resultantly the civil rules apply. Milanovich, 42 Ohio St. 2d at 52, 325 N.E.2d at 544. See also Ohio R. Civ. P. 1(A); State v. Nichols, 11 Ohio St. 3d 40, 43, 463 N.E.2d 375, 377 (1984).

Noling should have received discovery prior to the dismissal of his successor postconviction petition and new trial motion.

3. Noling was entitled to an expert as he met the standard for an evidentiary hearing

Several .25 caliber shell casings and bullet fragments were recovered from the Hartigs’ home. BCI&I narrowed the weapon used to kill the Hartigs to four possible brands. Lewis Lehman, one of the alternative suspects, owned a Titan .25 caliber handgun—one of the four possible brands of weapon that could have been used to kill the Hartigs. (Ex. AA)

Noling’s counsel spoke to two ballistics experts before filing the motion for funds. Both experts indicated that additional testing of the casings and bullet fragments could further narrow the brand of weapon used to kill the Hartigs. (T.d. 260, p. 2-3) One of the experts specifically noted that the reference database used to identify ballistics evidence, such as bullet fragments and casings, is continually updated, and could be as much as two times larger than it was in the 1990s. (Id.) The increased size of the database means that more, or better, results may be available if the evidence is retested.

Ohio courts have held that like discovery, a petitioner is not entitled to the appointment of experts when that petitioner has not met his initial burden of demonstrating substantial grounds to support an evidentiary hearing. Jackson, Trumbull App. No. 2004-T-0089, 2006-Ohio-2651 ¶25 (citing State v. Getsy, Trumbull App. No. 98-T-0140 (Oct. 22, 1999)). Noling met this burden before the trial court. (See Second Proposition of Law) Noling pled sufficient operative facts to warrant a hearing. His claims sufficiently pled the deprivation of constitutional rights and presented evidence demonstrating that the harm was substantial. Accordingly, the trial court should have granted Noling funds to hire a ballistics expert.

Even if this Court finds that Noling did not meet this burden, he was still entitled to funding for a ballistics expert. The Fourteenth Amendment entitles indigent persons to an adequate opportunity to present their claims within the adversary system. This includes the right to court-appropriated funding when the retention of experts is necessary for the indigent individual to present their claims. Britt v. North Carolina, 404 U.S. 226, 227 (1971); Ake v. Oklahoma, 470 U.S. 68, 76-77 (1985).

The courts have long-recognized that a defendant may not be denied access to the courts due to his indigency status. Griffin v. Illinois, 351 U.S. 12, 18 (1956); Burns v. Ohio, 360 U.S. 252 (1959). This right of access of impoverished defendants to the courts extends to postconviction proceedings. Smith v. Bennett, 365 U.S. 708, 712 (1961); Long v. District Court of Iowa, 385 U.S. 192, 194 (1966).

Moreover, trial courts in Ohio have the authority to appoint experts during postconviction proceedings. State v. Lott, 97 Ohio St. 3d 303, 306, 779 N.E.2d 1011, 1015 (2002) (“The trial court should . . . consider expert testimony, appointing experts if necessary, in deciding this [postconviction] matter.”).

Noling’s successor postconviction petition and new trial motion should not have been denied prior to the appointment of ballistics evidence to review the evidence in this case.

This Court should take jurisdiction of Noling’s case, and after full briefing, remand this case to the trial court with instructions that it permit Noling the opportunity to conduct discovery and grant funds for a ballistics expert.

Tyrone Noling is probably innocent. But, state procedural rules are operating to deprive him of a fair to chance to prove his claim. Steckman barred him from accessing much needed information. As a result, he faces the more onerous burdens on O.R.C. § 2953.23. Review of th is record should leave this Court will little confidence in the underlying verdict. This Court should accept jurisdiction of Noling’s case, and after full briefing, remand his case for a new trial. Alternatively, this Court should remand this case for complete discovery and an evidentiary hearing. Noling asks this Court for his day in court.