A Portage County man on death row wants new DNA tests on a cigarette butt found at the scene of a 1990 double murder.
Prosecutors told the Ohio Supreme Court Tuesday morning that even if such testing were granted, it would be meaningless.
Tyrone Noling, now 40, was convicted and sentenced to death in the shootings of an elderly couple, Bearnhardt and Cora Hartig, at the kitchen table of their Atwater Township home.
Initial DNA testing of the butt — found on the Hartigs’ driveway — already excluded Noling and one of his three co-defendants, according to evidence at his 1996 trial.
Portage County Prosecutor Victor V. Vigluicci stressed that point as justices questioned both sides on the long-debated issue.
Even if the cigarette butt points to the DNA of another man, Vigluicci argued, such a finding would prove nothing because “somebody [could have] flicked a cigarette butt out of their car as they passed the Hartigs’ home. It has nothing to do with the crime scene.”
Justice Judith Ann Lanzinger then asked whether the crux of the issue was a “different animal” — not simply excluding Noling and one of his co-defendants, but “absolutely identifying a specific person.”
Vigluicci replied: “If this was DNA that was found on the victim, or semen, or [saliva], or blood or something tested initially and it was inconclusively determined, ‘We don’t know who it is,’ then you’re right. Then it would be important, but that’s not this animal.”
After 38 minutes of oral arguments — eight minutes over what had been the allotted time for both sides — Chief Justice Maureen O’Connor said the matter would be taken under advisement.
The high court’s decision, likely months away, would not actually grant Noling new testing of the cigarette butt. What it would do, as the defense has requested, is send the issue back to a lower court for reconsideration.
There have been two previous denials of a new round of tests in Portage County Common Pleas Court — based on Noling’s exclusion as the contributor of the DNA on the butt.
“The trial court saw that when it rejected both of these applications for subsequent DNA testing. What better evidence can there be for the defense that we tested it and excluded them? And the jury had this information,” Vigluicci said, his voice rising.
Noling’s defense, led at the hearing by Carrie Wood of the Ohio Innocence Project, argued that a law the Ohio legislature enacted in 2010 allows for retesting of biological evidence, if the defendant can show that advances in DNA testing could disclose new evidence.
Wood said police investigators had compared the saliva on the butt to a sample taken from another man, Dan Wilson, and found he could not be excluded as a possible source.
Wilson lived near the Hartig home in Atwater in 1990, and later was sentenced to death for an unrelated murder. He was executed in June 2009, but his DNA profile remains on file in the state’s computerized database, Wood said.
“Mr. Noling,” Wood told the justices, “is innocent of the crime and, at the very least, deserves a new trial. He does not deserve to be on death row for a crime that Dan Wilson confessed to — not under police interrogation, but confessed to his stepbrother.”
DNA testing technology available today “allows you to identify a single individual,” Wood said. What the legislature did under the 2010 law was open the way for more such testing, “not less,” she said.
Justice Paul Pfeiffer, however, said the bottom line in Wood’s argument was “not proof that [Wilson] is the perpetrator. It would be proof that a cigarette butt that he touched was in the victim’s driveway. That’s all it’s proof of, isn’t it?”
Testimony by Noling’s three young co-defendants, identifying him as the perpetrator, was the centerpiece of the 1996 trial — six years after the crime, and after Noling had first been discarded as a suspect by investigators in the Portage County Sheriff’s Office.
All three of the co-defendants, including one on the witness stand, have since recanted their testimony against Noling.
Attorney Kelly Culshaw, who represented Noling in an unsuccessful federal appeal, contacted the Beacon Journal by email after the oral arguments and said there were many more factual issues in the case than those that arose Tuesday in Columbus.
“Mr. Noling has maintained his innocence for over 20 years and passed a polygraph,” Culshaw wrote. She added that Wilson confessed to the Hartig slayings to his older stepbrother, Nathan Chesley, in 1990. A police report later was issued on the confession.
But it was not until 2009, Culshaw said, that actual prosecution case notes on the confession were turned over to Noling’s lawyers “via a public records request,” she said.
Information from the Ohio Innocence Project’s defense of Noling can be found at www.tyronenoling.com.
Noling is awaiting a date of execution while serving his sentence at Chillicothe Correctional Institution.
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.