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GIST: "The panel of three judges had good reason for dismay, even anger.
They sit on the Ohio 11th District Court of Appeals in Warren, and in 2014, the court ordered “further proceedings” to permit Tyrone Noling access to files that may show prosecutors withheld evidence favorable to his defense at trial. Those proceedings have yet to go forward.
On Feb. 1, the three judges, Cynthia Westcott Rice, Mary Jane Trapp and Thomas Wright, sat for an oral argument urged by attorneys for Noling, who have asked the court to enforce its mandate. That means getting the trial court and the prosecutor’s office in Portage County to comply with the law.
Recall that Noling sits on death row, though the current state of the evidence makes clear he did not kill Cora and Bernhardt Hartig at their home in Atwater Township three decades ago. The recent hearing reflects the difficulty in getting the justice system to repair a grievous wrong and avoid the horror of executing an innocent man.
As I wrote in December, this matter deserves the attention of Gov. Mike DeWine. His office has the power of commutations, pardons and reprieves — a last line of defense against injustice.
Advocates for Noling rightly argue that he has one of the strongest cases for innocence of anyone on death row across the country.
Why the delay in carrying out the mandate of the appeals court?
Part of the explanation goes to attention focused elsewhere. Noling and his attorneys waged a long and worthy litigation battle over DNA testing. They won some rounds. In the end, the result was not all they hoped — to deliver defining proof of his innocence.
State authorities still balk at DNA testing of cartridge casings.
The pursuit of such testing wasn’t about excluding Noling. No physical evidence links him to the crime scene. Rather, the purpose was to identify an alternative suspect.
Once the DNA litigation closed, the Noling team turned to fulfilling the appeals court mandate.
This effort stems from new evidence, discovered in 2010, indicating prosecutors may not have been fully forthcoming in sharing information with the defense at trial.
The evidence involves the statement of a man saying his foster brother confessed to the Hartig murders.
That foster brother, Dan Wilson, later killed a woman and was executed in 2009.
The new evidence also includes DNA results from a cigarette butt that did not exclude Wilson. Finally, statements surfaced regarding efforts to conceal a missing .25 caliber handgun, the same gun type used to kill the Hartigs.
Each piece of evidence may have helped the Noling defense at trial.
In 2011, the trial court held a hearing to weigh whether the evidence had been wrongly kept from the defense. The prosecution insisted it had an “open file.” The defense countered that if the evidence was there, it would have been used.
The judge at the time ruled Noling failed to prove that his counsel was prevented from discovering the evidence.
Noling appealed, and in 2014, the appeals court concluded that testimony alone was insufficient. It ordered the trial court to conduct “further proceedings,” viewing such a step as “necessary to fully and fairly dispose of the issue.”
In short: Look in the file.
This is the thread Noling and his attorneys picked up in early 2019. They asked Judge Becky Doherty of the Portage County Common Pleas Court to approve funds for an independent expert examiner to go through the file.
She quickly assented.
Soon, Noling sought access to the file. The judge denied the request. In October 2019, Noling tried again. When the court said nothing, his attorneys moved for a status conference. By then, it was April 2021, more than two years since the judge approved the expert examiner.
Three months later, the judge denied both motions, for access and the status conference.
Why approve an examiner and then block doing the work?
This is the question Noling and his attorneys brought to the appeals court. More, why deny access to a file that prosecutors say is “open”?
The Portage prosecutor’s office argues Noling just wants to delay his execution.
Actually, Noling has been pressing for action.
He has maintained his innocence from the start, passed a polygraph test and watched the case against him collapse.
Most telling, his co-defendants long ago recanted confessions coerced by an unscrupulous investigator for the prosecution.
Noling wants back the life and liberty grabbed from him.
The Portage prosecutor’s office, headed by Victor Vigluicci, evinces more than contempt for the mandate of the appeals court. It has expressed the same for justice in this case. It fails to admit the obvious: People make mistakes, even prosecutors, and Tyrone Noling is the victim of a huge one."
The entire story can be read at:
