The Plain Dealer
Ohio death row inmate Tyrone Noling loses appeal in Portage County murder case
Saturday, February 02, 2008
Andrea Simakis
Plain Dealer Reporter
U.S. District Judge Donald Nugent denied an appeal by Ohio death row inmate Tyrone Noling Friday and issued an order saying Noling - convicted of gunning down an elderly couple - can't take his case to a higher federal court.
Ohio public defenders will ask the 6th U.S. Circuit Court of Appeals for permission to continue Noling's legal battle to prove he didn't murder Cora and Bearnhardt Hartig in Portage County in 1990.
No physical evidence linked Noling to the crime. Prosecutors relied on the statements of three others who said they were with Noling the day of the shootings. One of them, a teenager named Butch Wolcott, said he had seen Noling running from the house, a smoking gun in his hand.
A jury sentenced Noling to death in 1996. A year later, Wolcott and the two others who placed Noling at the crime scene signed affidavits saying their confessions were false, the result of pressure from prosecutors. Noling is innocent, they said.
A succession of appellate judges, including Nugent, have refused to allow Wolcott and the others to tell their stories in court.
In his 93-page opinion, Nugent wrote that to win his appeal, Noling "must show that he is probably innocent" but had fallen short of that standard.
It was too late to argue the lack of physical evidence, Nugent wrote - Noling's lawyers should have made that argument 10 years ago on direct appeal.
The judge dismissed the co-defendants' recantations, saying the statements weren't credible because they had "obvious interest in Noling's exoneration."
One is in prison for his role in the murders and another is serving time for an unrelated crime.
The judge didn't deal with the statements of Wolcott, who won immunity from prosecutors for his testimony against Noling during the original trial.
Wolcott had nothing to gain by admitting he lied on the stand and pointed a finger at Noling, said Noling's attorney, Kelly Culshaw. "[Wolcott] could have been charged with perjury," she said.
Judge Nugent wrote that to believe the co-defendants' affidavits "would require this court to accept that they had absolutely no involvement in the Hartig murders despite the fact that they were able to supply the police with multiple details of how it occurred."
Wolcott and the others have maintained they were able to give painstaking details about the crime only after an overzealous investigator coached them so they would sound convincing on the stand.
Noling still has an appeal pending in state court.
To reach this Plain Dealer reporter:
asimakis@plaind.com, 216-999-4565 |
