THE PLAIN DEALER
A Prosecutor's Misplaced Concern
Sunday, February 04, 2007
Regina Brett
Plain Dealer Columnist
The prosecutor's file contains facts that might free a man on death row.
But for 10 years, Tyrone Noling and the attorneys handling his appeals haven't been allowed to see them.
They didn't know the information existed until Plain Dealer reporter Andrea Simakis found it.
Why?
Ohio doesn't have open discovery. Prosecutors don't have to open their files and share with the defense. They can actually hide information.
Journalists can get information that the defense can't.
What's at stake?
Only a man's life.
The prosecutor's file shows that police had two other viable suspects in the 1990 murders of Cora and Bearnhardt Hartig in Atwater Township.
One suspect matched the description of a man seen near their neighborhood the day of the murder. The suspect said he didn't know the couple. He lied. He sold them insurance.
The other suspect owned a gun that ballistic tests showed could have been used to kill the Hartigs.
Shhh.
Don't tell anyone. Tyrone Noling sits on death row, even though three guys who testified against him have recanted.
The prosecutors don't seem interested in who is guilty or innocent. They already got a victory.
They fought to keep it last week in Portage County, where Judge John Enlow could - and should - grant Noling a new trial.
Assistant prosecutor Pam Holder argued, "I'm a little concerned The Plain Dealer is releasing information to the public that's not available to the defendant. . . . "
She's not concerned that the information could free Noling.
She's not concerned that the information could mean they convicted the wrong man.
She's concerned that the media are letting everyone know about it.
She wasn't arguing that the information doesn't exist. She was arguing that Noling shouldn't get to see it.
Tyrone Noling is one more reason Ohio needs open discovery.
In December, the Ohio Supreme Court voted 4-2 against it. That means prosecutors can continue to hide evidence, reports and witness statements.
Justice Paul Pfeifer, who voted for it, said he and Chief Justice Thomas Moyer support open discovery. (Moyer declined to comment.)
By process of elimination, that leaves Justices Evelyn Lundberg Stratton, Maureen O'Connor, Terrence O'Donnell and Judith Ann Lanzinger opposed.
Those 800 letters readers of this column sent to support open discovery? Turns out someone stuck them all in one binder and tossed it on the conference room table. Each justice did not get a copy.
"Ordinarily, we get them all," Pfeifer said.
Pfeifer, a former prosecutor in Crawford County, said that with open discovery, lawyers can see which charges are legit versus those slapped on to scare defendants into bad plea bargains.
"Prosecutors overcharge with great regularity," Pfeifer said.
Some prosecutors say open discovery will allow defendants to conjure up alibis.
"If that's all the better the case, then they shouldn't have filed it," Pfeifer said.
Ohio has complete open discovery in civil cases, but not in criminal cases.
"You can't get it when your liberty is at stake," Pfeifer said.
Nor a man's life.
To reach Regina Brett:
rbrett@plaind.com, 216-999-6328
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