Case Update: June 1, 2016

On May 31, 2016, the Ohio Supreme Court held oral argument in the case of Tyrone Noling, an innocent man who has been on death row for 20 years despite the absence of physical evidence against him and the fact that all the state’s principal witnesses have recanted their testimony.

At oral argument, attorneys for Mr. Noling asked the Ohio Supreme Court to grant him the same appellate review for his DNA application as non-capital defendants. The appellate review provided to non-capital defendants has proven critical in obtaining exonerative DNA testing for those wrongfully convicted in Ohio as well as other states. Appellate review is critical to address the testing and results Mr. Noling still seeks in his case. Specifically, Mr. Noling seeks:

• All results of post-conviction DNA testing;
• For the shell casings from the murder weapon to be run through the federal database in order to see if the murder weapon is linked to other crimes or a specific perpetrator;
• For an appropriately selected lab to make the scientific determinations listed in Ohio’s DNA testing statute based on scientific testing. Additionally, if the selection of the lab to make such determinations or to perform DNA testing is in dispute, that a trial court shall make findings regarding as to why it selected a particular lab.

Tyrone Noling Case Background

Tyrone Noling has been on death row for over 20 years for a crime he did not commit.

In 1996, Mr. Noling was sentenced to death for the murders of Bearnhardt and Cora Hartig in rural Portage County, Ohio. Today, he remains on death row in danger of execution despite significant evidence of his innocence:

1. There is absolutely no physical evidence tying Mr. Noling to the murders;
2. All of the principal witnesses against Mr. Noling have recanted their testimony; and
3. Evidence that points to other viable suspects was never heard by the jury at Noling’s trial. that was

Portage County Sherriff: Noling’s Alleged Involvement “Just Didn’t Fit.”

In April 1990, the Hartigs were tragically shot to death in their home in Atwater, Ohio. Neither Mr. Noling’s fingerprints, nor those of his alleged accomplices, were found in the Hartig home, despite uncontroverted evidence that the perpetrator touched many items and ransacked the home. Primitive DNA analysis of a cigarette butt found at the crime scene excluded Mr. Noling and his alleged accomplices. No eyewitnesses placed Mr. Noling or his young friends at the scene of the crime. The lack of evidence led then-Portage County Sherriff Kenneth P. Howe to discard Mr. Noling and the other youths as viable suspects, saying “It just didn’t fit.”

That the boys even became suspects is puzzling. The police had absolutely no physical evidence from the crime scene pointing to any of them. The only thing that the police did have was that in early April 1990, Mr. Noling and his friends were involved in a handful of minor thefts and two bumbling home robberies, including one in which Mr. Noling accidentally discharged a .25 caliber gun. However, ballistics tests conclusively proved this gun was not the Hartig murder weapon. Furthermore, the other robberies took place in another town miles away, and they were strikingly different in nature from the cold-blooded murders of the Hartigs.

Statements of the three young witnesses were obtained by an investigator with the Portage County Prosecutor’s Office and used to build a case against Mr. Noling. However, evidence developed since trial indicates that the statements of these witnesses were produced through coercive interrogation tactics and possess indicia of false confession. Experts have found that these statements “should be classified as unreliable.” [http://bit.ly/1rag5Fw] [http://bit.ly/23GZdHr]. Furthermore, all of the principal witnesses against Mr. Noling have recanted their testimony since trial.

Exculpatory Evidence That the Jury Never Heard

Mr. Noling’s jury was deprived of significant and compelling information that pointed to other suspects in the Hartig murders.

Notably, the foster brother of Dan Wilson told investigators that his brother had killed the Hartigs. Dan Wilson lived roughly a mile from the Hartigs home. As a youth, Wilson was convicted of a home invasion robbery that resulted in the death of his elderly victim. In 1991, just a year after the Hartig murders, Mr. Wilson murdered a young woman in Elyria, Ohio and was executed on June 3, 2009 for this crime. (pp. 8-10, Instanter Motion For New Trial).

In an affidavit obtained by Mr. Noling’s counsel upon discovery of the undisclosed police notes, Mr. Wilson’s foster brother affirmed his statement to the police implicating Wilson in the Hartig murders. Mr. Wilson’s foster brother also stated that Wilson was committing thefts and breaking into homes at the time of the Hartig murders, and that he drove a blue Dodge Omni. After the Hartig murders, witness Jim Geib told authorities that on the day of the Hartig murders he saw a dark blue, midsize car leaving “that general location [of the Hartig home]” at around 4:30 p.m. (pp. 9-10, Instanter Motion For New Trial)

Since trial, Mr. Noling also discovered evidence that blood-typing evidence at the time of trial failed to exclude Dan Wilson as the source of genetic material left on a cigarette butt – the only piece of physical evidence discovered at the Hartig crime scene. This same type of testing, however, did exclude Mr. Noling and his three co-defendants. While the prosecution disclosed Mr. Noling’s results to counsel, the prosecution withheld both the fact that they tested Mr. Wilson and the results of Mr. Wilson’s tests. (pp. 8-9, Instanter Motion For New Trial)

Tyrone’s jury also never heard any evidence regarding another possible suspect in the Hartig murders, Dennis VanSteenberg. According to recently-discovered reports, Dennis VanSteenberg had been showing off a .25 caliber pistol at a skating rink, on the night of the murder, just a few miles away from the Hartigs’ home. After being interviewed by detectives, VanSteenberg eventually turned in a .25 pistol to authorities, who determined that it was not the murder weapon. In a statement undisclosed to trial counsel, however, authorities later learned that Dennis and his father had “thrown away” the actual .25 automatic the night of the murder “because he had to.” VanSteenberg then borrowed his brother’s .25 pistol, and gave that different pistol to detectives for the ballistics comparison. The .25 caliber automatic weapon used to kill the Hartigs was never recovered. (pp. 10-11, Instanter Motion For New Trial)

Failure to disclose favorable and material evidence related to the defendant’s guilt is a violation of the defendant’s constitutional rights under U.S. Supreme Court’s Brady v. Maryland (1963) and its related cases. This constitutional violation undermines the accuracy and fairness of the trial and sentencing, and necessitates a new trial for Mr. Noling. The State is currently attempting to move ahead with Mr. Noling’s execution, despite the fact that no juror has ever had a chance to consider the evidence pointing towards these other suspects.

Mr. Noling has started the process to request a new trial, where a jury would have a fair chance to consider all of the exculpatory evidence known today. Despite troubling doubts about the reliability of his conviction, he has yet to receive a hearing on the merits of his request for a new trial.

Key Legal Filings in Mr. Noling’s Case

The Memorandum in Support of Jurisdiction of Appellant Tyrone Noling addresses issues of appellate review and can be accessed here: http://bit.ly/1qT78jx

The Memorandum includes an important issue that the Ohio Supreme Court ultimately took – the unconstitutionality of the disparity between appellate review provided to capital and non-capital defendants. As the brief explains, after their applications for post-conviction DNA testing were denied, non-capital defendants had access to appellate review of the denial, while capital defendants did not. This brief also raises legal questions such as:

• Whether an inmate who applies for and is granted post-conviction DNA testing is entitled to the results;
• Whether the trial court has jurisdiction to order shell casings from the murder weapon to be run through the federal database in order to see if the murder weapon is linked to other crimes or a specific perpetrator;
• Whether a lab must make the scientific determinations listed in Ohio’s DNA testing statute based on scientific testing;
• Whether a trial court shall make findings as to why it selected a particular lab to perform testing or to make scientific determinations, if the selection of the lab to is in dispute.

Another key filing in the case is the Merit Brief of Appellant Tyrone Noling which can be accessed here: http://bit.ly/1SUPOky

In a previous dissent, Ohio Supreme Court Justice Terrence O’Donnell, writing for himself and Justice Judith French, wrote that the statute governing appeals for capital and non-capital defendants whose application for post-conviction DNA testing has been denied by the trial court:

“[R]aises significant concerns regarding due process and equal protection in that it divides offenders who are similarly situated into two different classes: offenders who have been sentenced to death may seek leave to appeal the denial of postconviction DNA testing directly to this court while all other offenders may appeal as of right to the court of appeals and then seek discretionary review in this court if the appellate court affirms denial of the testing. Thus, the General Assembly has denied offenders sentenced to death—and only those offenders—an appeal as of right from the denial of postconviction DNA testing.” State v. Noling, 136 Ohio St.3d 163, 2013-Ohio-1764, 992 N.E.2d 1095, ¶ 60-63 (O’Donnell, J., dissenting).

The Reply Brief of Appellant Tyrone Noling can be accessed here: http://bit.ly/1S5p9VO and outlines why the State’s arguments lack merit.

For more information about the evidence of innocence, read an executive summary of the case.

If you would like to speak with Carrie Wood, attorney for Mr. Noling, please contact Laura Burstein at laura.burstein@squirepb.com.