Ohio Supreme Court hears arguments in Portage County murder case

by MARC KOVAC | CAPITAL BUREAU CHIEF Published:

Columbus -- Does a cigarette butt found on the driveway outside a slain Portage County couple's home tie a Lorain County man executed four years ago for another murder to the scene?

And if it does, should the man convicted of the former receive a new trial?

Those are questions that could be answered by the Ohio Supreme Court, which heard oral arguments Jan. 8 in the case of Tyrone Noling, who continues to deny he shot and killed Bearnhardt and Cora Hartig during a botched robbery more than 20 years ago.

Legal counsel for Noling asked justices Jan. 8 to allow DNA testing of the cigarette butt, and they questioned whether state law related to DNA testing and death penalty cases is unconstitutional.

"Mr Noling is innocent of the crime, and he at the very least deserves a new trial," said Carrie E. Wood, an attorney from the Ohio Innocence Project.

But prosecutors said Noling has had his days in court, that further DNA testing of the evidence would not definitively prove his innocence and that the latest legal proceedings are meant to delay his execution.

"While we want to get to the truth as much as anybody else, this is not one of those cases where DNA has some relevance," said Portage County Prosecutor Victor Vigluicci.

Noling was convicted for the April 1990 murder of the Hartigs, an elderly couple found shot to death in the kitchen of their home in Atwater.

Noling was twice indicted for the crime and convicted about five years later, based on testimony of three other young men who were involved with him in a string of robberies in Alliance, according to documents. He was sentenced to death for the crime.

But Noling has maintained his innocence throughout the proceedings, and his co-defendants recanted their testimony, according to a merit brief filed by Noling's legal counsel.

Noling also has argued that there is evidence of potential other perpetrators, including Daniel Wilson, who was executed in 2009 for the murder of a woman who he locked in the trunk of a car before setting it on fire.

Noling wants a cigarette butt found in the driveway outside the Hartigs home tested to see if it matches Wilson's DNA. Earlier tests by law enforcement determined the cigarette was not smoked by Noling or his co-defendants.

Justices questioned whether the DNA test would ultimately exonerate Noling of the crime.

"It's still not proof that that individual was the perpetrator," said Justice Paul Pfeifer, who has been outspoken in his views against the death penalty. "It would be proof that a cigarette he touched was in the victims' driveway."

Justice Terrence O'Donnell added, "Even if you know that this was in fact Daniel Wilson's DNA on the cigarette butt recovered from the driveway, it's not outcome determinative …"

Wood said the test results, along with other evidence -- namely, comments from Wilson's foster brother potentially connecting him to the crime -- could prompt a new trial.

According to court filings, "It is well-documented that Wilson had a history of home invasion and victimizing the elderly. … And, Wilson lived a little over a mile away from the Hartig's Atwater, Ohio, home."

But Vigluicci countered that further DNA tests would not prove Noling's innocence, citing confessions and comments from Noling and his co-defendants. He also said early courts have already ruled on the DNA issue, Noling was convicted despite earlier testing showing the cigarette was not his, and comments from Wilson's foster brother were unreliable.

"This court has already had this issue before it previously," he said. "This is their second attempt at subsequent DNA testing of this cigarette butt. ... This case is done, as far as the appellate process …"

He added, "This is speculation to the N-th degree, and it's building hearsay upon speculation upon hearsay."

The DNA issue in the Noling case has been discussed for years. In 2010, then-Gov. Ted Strickland and Attorney General Richard Cordray sent a letter to Vigluicci urging him to allow testing of the cigarette butt.

There is no timeline for a decision on the matter from the Ohio Supreme Court.

Marc Kovac is the Dix Capital Bureau Chief. Email him at mkovac@dixcom.com or on Twitter at OhioCapitalBlog.

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