Files Require Retrial, Judge Told
Prosecutor says secret facts don't matter

Thursday, February 01, 2007

Andrea Simakis
Plain Dealer Reporter

Records unearthed from prosecutor's files last year by The Plain Dealer provide compelling evidence that Tyrone Noling did not kill an Atwater Township couple, his lawyer told a Portage County judge yesterday.

Noling was convicted in 1996 of the murders of Cora and Bearnhardt Hartig and sentenced to die, not because he was guilty, but because his attorneys didn't do their jobs and prosecutors withheld information crucial to his defense, said Ohio public defender Kelly Culshaw, arguing for a new trial.

It doesn't matter what those records show, Assistant County Prosecutor Pam Holder countered - Noling's lawyers got them after the newspaper posted them online, so Noling shouldn't be able to use them.

"I'm a little concerned that The Plain Dealer is releasing information to the public that's not available to the defendant under Steckman," she said, referring to a 1994 Ohio Supreme Court ruling that bars defendants, inmates and their lawyers from getting records anyone off the street can easily obtain.

The newspaper filed a public records request with the Portage County prosecutor's office and received hundreds of pages of information, including crime scene reports, psychological evaluations, handwritten notes and transcribed interviews that the defense had never seen.

Judge John Enlow agreed to hear motions for a new trial and expanded discovery although Noling's case is also being considered in U.S. District Court in Cleveland.

Following The Plain Dealer stories in August, Noling's lawyers asked federal Judge Donald Nugent to stop proceedings and give them access to prosecution files.

Nugent refused, so Culshaw filed a motion for a new trial in Portage County before Enlow, the judge who heard Noling's appeal a decade ago. Enlow listened yesterday as Culshaw ticked off evidence jurors never heard, including the fact that police questioned two "viable alternative suspects" soon after the killings in 1990.

The first, who matched the description of a man seen in the Hartigs' neighborhood the day of the murders, initially said he didn't know the couple, then admitted he had sold them insurance and had been in their home. The other suspect once owned a .25-caliber Titan handgun, a brand that experts say was one of only four that could have been used to kill the Hartigs.

"Imagine if Noling's attorneys could have stood in front of the jury and said someone else committed this crime," Culshaw said. They didn't make that argument nor did they pass along all the evidence to Noling's new lawyer when the trial was over, Culshaw said, making them guilty of "egregious acts of ineffective assistance of counsel."

Records obtained by The Plain Dealer also showed that key witnesses for the prosecution drastically changed their stories from interview to interview, in some cases, telling the grand jury one thing, the trial court another.

"Inconsistency after inconsistency, lie after lie," Culshaw recounted. "The only way to fix the mistakes in this case is to give Mr. Noling a new trial."

Don't do it, assistant prosecutor Holder said, arguing that Noling has been raising the same issues in the courts for years and judges have found his claims unconvincing.

Enlow will issue a written decision on whether to grant Noling a new trial.

To read the Plain Dealer stories about Noling and public documents, visit www.cleveland.com/doubts

To reach this Plain Dealer reporter:

asimakis@plaind.com, 216-999-4565