Free Tyrone Noling

Under Law, Defense Can't Get Public Records
So Lawyer Seeks Documents From Plain Dealer

Saturday, September 09, 2006

Mike Tobin
Plain Dealer Reporter

Ohio law prohibits criminal defendants and their attorneys from seeing public records that could help them argue their case, even though the documents are ones that everyone else can obtain.

That legal barrier is why lawyers for death-row inmate Tyrone Noling this week asked a federal judge to force The Plain Dealer to turn over public records the newspaper obtained that call into question Noling's guilt.

Noling's lawyers said they have been unable to get the records because of a 1994 Ohio Supreme Court ruling that bars defendants, inmates and their lawyers from getting police records that anyone off the street can easily obtain.

"We feel we've been hamstrung because we don't have access to documents," said Kelly Culshaw, an Ohio public defender representing Noling.

Noling was convicted and sentenced to death in 1996 for the murders of Bearnhardt and Cora Hartig, an elderly Portage County couple.

Last month, The Plain Dealer published stories challenging the prosecution's claim that Noling used a .25-caliber handgun to kill the Hartigs and ordered an accomplice to get rid of the gun. The articles, by reporter Andrea Simakis, presented evidence that wasn't offered at Noling's trial, including reports that another man questioned about the murders refused to take a polygraph and owned a .25-caliber Titan, one of four makes that ballistics experts concluded could have been used to shoot the Hartigs.

Defense lawyers also never knew that a psychologist hired by prosecutors warned them that a key witness might make up testimony to win immunity.

Three friends of Noling's confessed to participating in the 1990 killing of the Hartigs and named Noling as the shooter. They later recanted, saying they lied to save themselves because an investigator for the prosecutor's office threatened them. They also said that after they agreed to cooperate, the investigator provided them with details of the crime so they could give convincing testimony.

Portage County Prosecutor Victor Vigluicci has said that the allegations are false and that the investigator did nothing wrong.

Noling's attorneys asked that the case against their client be returned to state court for a hearing on the facts revealed in the Plain Dealer articles. They said they did not have some of the evidence cited in the articles; that evidence was obtained from the Portage County prosecutor's office.

State lawyers maintain the newspaper's discoveries are unsubstantiated and would not have helped Noling's case. They also say that Portage County prosecutors had had an "open file" discovery process at the time and defense attorneys were permitted to go through prosecutors' records.

"While the bits and pieces of information from The Plain Dealer exposé may withstand the uninformed perusal by the general public," state lawyers wrote, " . . . they are a patchwork quilt filled with so many holes that they cannot hold up in court."

The Plain Dealer has put records it obtained from the Portage County prosecutor's office online. To view them, go to http://secure.plaind.com/records/.

Plain Dealer Editor Doug Clifton said he finds it troubling that Noling's lawyers have been unable to get documents the rest of the public can obtain.

"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," Clifton said. "There's something drastically wrong with the law."

Lawyers for the state did not return calls seeking comment. Culshaw, Noling's attorney, said she expects them to object to the request and cite the 1994 Supreme Court ruling as the reason.

Columbus lawyer Terry Sherman was on the losing side in that case, known as the Steckman decision. The Supreme Court's ruling makes it nearly impossible for defense lawyers to obtain information that raises doubt about their clients' guilt, he said.

"Newspapers get more information than we can," Sherman said. "You're writing a story, and we're trying to defend his life."

The Steckman ruling consolidated motions in three murder cases. In each, defendants or people working on their behalf tried to obtain records about their cases. Instead of trying to get the information through criminal discovery procedures - in which prosecutors are required to turn over to defense lawyers any information they have that might help the accused - they filed requests with police departments, citing Ohio public-records law.

Defense attorneys have long complained that the discovery process is already skewed against them because prosecutors get to decide what is relevant and should be turned over.

The justices ruled 5-2 that defendants and their lawyers could not use public-records law to get information that prosecutors did not turn over in discovery.

Writing for the majority, Justice Andrew Douglas said public-records requests caused "interminable delays" in criminal prosecutions.

"Trial courts, courts of appeals and this court are consuming tremendous time and resources to review, in some cases, boxes and boxes full of records alleged to be public," Douglas wrote.

"We recognize that our decision will not be met with universal approval, but those who would criticize do not see the daily bombardment on our criminal justice system that we see," Douglas continued. ". . . It is now time to return to a level playing field between accusers and the accused."

Sherman said that if justice was truly the goal, the courts should welcome all relevant information.

"If you want to minimize the chance of an innocent person getting convicted, you would want to have as much information as possible," Sherman said.

Instead, he said, prosecutors are required to turn over only statements from witnesses, a list of potential witnesses, physical evidence and lab reports. Police reports that show detectives' opinions about who may have committed the crime are not turned over, he said.

"It's prosecution by ambush," Sherman said. "How does that serve justice?"

Lawyers for Noling say many of the documents cited in The Plain Dealer article should have been turned over during discovery because they raise doubts about their client's guilt. Culshaw wrote in a motion that she has never seen the documents and "has a good-faith belief that the trial prosecutors suppressed this evidence."

State lawyers countered that the information contained in the Plain Dealer stories was simply a rehash of old facts that would not have substantially influenced the outcome of the 1996 trial.

Cleveland defense attorney Tim Sweeney said that barring access to public records almost rewards prosecutors for hiding evidence in discovery and during the trial. The result, he said, is that defense attorneys are never sure they got everything in discovery.

"Did I get everything I was supposed to get? How would I know? Public records would shine a light on that, but Steckman says I can't get them," Sweeney said.

To reach this Plain Dealer reporter:
mtobin@plaind.com, 216-999-4128

Used with permission.