What’s On Their Minds: How Many DNA Tests Can A Prisoner Get? State v. Tyrone Noling.

Update: On May 2, 2013 the Supreme Court handed down a merit decision in this case. Read the analysis here.

On January 8, 2013, the Supreme Court of Ohio heard oral argument in State v. Tyrone Noling. There are two issues in this case.  The substantive issue is whether an application for post conviction DNA testing filed under an earlier statute bars a trial court from reviewing a later DNA testing application filed under a new statute with more liberal acceptance criteria.  Read the oral argument preview of this part of the case here.

The second issue, on which the Court requested supplemental briefing after accepting the case, is whether the Supreme Court has jurisdiction to hear this case.  Under  R.C. 2953.73, a trial court’s rejection of an application for DNA testing filed by a person who has been sentenced to death must be appealed directly to the Ohio Supreme Court. That is what Noling did in this case.  But under State v. Davis, 131 Ohio St.3d 1 (2011) the Supreme Court held that courts of appeals have  jurisdiction to hear the appeal of a trial court’s denial of a motion for a new trial based on newly discovered evidence in a case in which a death penalty has been imposed. Read the oral argument preview of this part of the case here.

Case Background

Tyrone Noling was indicted in 1995 for the 1990 murder of Bearnhardt and Cora Hartig. Noling was charged with murdering the elderly Hartigs during the commission of a robbery. The state alleged that three other youths were involved in this crime based on their confessions.  All three have subsequently recanted their confessions and stated that Noling is innocent.  Noling was found guilty on all counts and sentenced to death in 1996. Noling’s numerous attempts to seek postconviction relief in state and federal courts failed.

In 2009, through documents obtained in a public records request, Noling’s lawyers learned of a possible alternative suspect to the Hartig murders, namely one Daniel Wilson.  Wilson lived nearby, and had a history of home invasion and of victimizing the elderly. According to 1990 police notes acquired by Noling’s lawyers, Wilson confessed his involvement in this case to a foster brother – Nathan Chesley.  Chesley has yet to be permitted to testify in court as to what Wilson told him, but has publicly spoken of Wilson’s involvement on a number of occasions. Chesley does not know Noling.

Wilson has since been executed for another murder.  However, his DNA remains in the CODIS data base.

Noling’s Applications for Post Conviction DNA Testing

In 2008, Noling applied for DNA testing under S.B. 262, Ohio’s previous statute (effective July 11, 2006) allowing for post-conviction DNA testing. The application was denied by the trial court solely on the basis of R.C. 2953.74(A), which required the court to reject an application for DNA testing if there was a “prior definitive DNA test” on the same material the inmate sought to have tested. The trial court found that Noling had already had a definitive DNA test in 1993 (albeit not pursuant to the DNA statutes now at issue), which had ruled out his DNA from a cigarette butt found in the driveway of the victims’ house. The earlier versions of the post conviction testing statutes provided no definition for the phrase “definitive DNA test.”

In 2010, the Ohio General Assembly enacted S.B. 77, which went into effect July 6, 2010. The new law changed the acceptance criteria for post-conviction DNA testing, and provided a definition for the phrase “definitive DNA test” that had been absent from the prior versions of the DNA testing statute.

In December 2010, after the acceptance criteria had been changed by S.B. 77, Noling reapplied for DNA testing based on the existence of new acceptance criteria and the fact that new information regarding a possible alternative suspect, Daniel Wilson, had come to light. The trial court denied the second application, holding that the rejection of the first application was a bar to considering Noling’s second application. Noling appealed this ruling directly to the Ohio Supreme Court pursuant to R.C. 2953.73 (E)(1).

The Evidence Sought to be Tested

Noling seeks DNA testing of a cigarette butt found in the driveway of the Hartig’s house. Under the earlier, more rudimentary form of DNA testing in existence at the time of Noling’s first application for post conviction DNA testing, Noling’s DNA was excluded from the cigarette butt. But Wilson’s was not.

Newer DNA technology can do more than exclude suspects; it can provide a match. That is what Noling now seeks.

At Oral Argument

Noling’s Argument

The purpose of enacting the current DNA testing statute was to prevent wrongful convictions from occurring, and to make it easier to undo those wrongful convictions that have already occurred. This is primarily accomplished by giving greater—not more restrictive– access to DNA testing. 2953.72 (A)(7) does not serve as a bar to re-testing in this case and the trial court erred in concluding that it did. If the cigarette butt at issue had belonged to Noling, the state would have made that the centerpiece of its case.  It is incomprehensible for the state to say that if that cigarette butt belonged to Wilson and placed him near the scene of the crime—where he had absolutely no reason to be– that is not outcome determinative. Such evidence, along with the recantations of all 3 co-defendants and Wilson’s confession is all evidence a jury should hear and consider in a new trial.

Noling’s counsel argued on the jurisdictional question that  R.C. 2953.73clearly appears to conflict with Davis. The Ohio Constitution itself says that it is only the Constitution that dictates appeals of right and jurisdiction of Supreme Court, so a statute purporting to do that would be unconstitutional. In contrast, the Constitution says that the General Assembly can pass laws with respect to the appellate process for courts of appeals.  This would mean dismissing this case and sending it to the 11th district court of appeals for consideration of the issues in the case.

State’s Argument

The trial court was absolutely correct in finding that Noling had failed to meet the acceptance criteria for re-testing. In order to get re-tested, the defendant must meet all three criteria under 2753.74 (A) (B) and (C). Even if Noling were to make the “definitiveness” prong—which the state contends he cannot–he will never make the “outcome determinative” prong.   Noling has already been excluded as a source of DNA on the cigarette butt, and the jury had that information at his trial. The prosecutor also challenges the fact that there is any credible evidence of Wilson’s involvement in the case. This just is not a case in which the DNA has any significance.  This latest round is being done only for purposes of delaying Noling’s execution date.

The prosecutor breezed right over any substantive discussion of the jurisdictional issue. He agreed that under a “narrow” reading of Davis,  the Court could send this case to the court of appeals, but then quickly agreed with Justice Pfeifer when he suggested that the legislature properly statutorily restricted intermediate appellate review in this case.

A Four Justice Show

This was the first day for three new justices on the court—French, O’Neill and Kennedy.  Justice O’Neill recused himsef from this case because he had sat on an early appeal in it when he was on the 11th district court of appeals.  Judge William Klatt of the Tenth District sat for him.  But neither French, Kennedy nor Klatt uttered a word during this argument.  It was a toughie to start out on.

So, Do We Have Jurisdiction?

Justice Pfeifer asked why the General Assembly couldn’t say, by statute, that appeal in this case was directly to the Ohio Supreme Court.

Justice Lanzinger asked whether the Court has jurisdiction under Article IV, Section 4.02(b)ii, which gives the Supreme Court appellate jurisdiction in cases in which the death penalty has been affirmed.

Distinguishing Davis?

Justice Pfeifer mused aloud that Davis  dealt with post conviction motions, whereas R.C. 2953.73 is a specific statute granting a particular remedy in a particular situation.

What’s New in the Science?

Asked Justice Pfeifer.

Justice Lanzinger clearly got it when she commented that we are now talking about DNA evidence to identify, not just to exclude.

And Chief Justice O’Connor commented that the new statute allows for new testing in light of new technology– while previous tests excluded Noling and his co-defendants from the cigarette butt, current DNA test is asked to be matched to Wilson.

What is a Prior Defintive Test?

Did the trial court fail to operate under the new statute, asked Justice Pfeifer? Was the first test definitive or not?

You don’t have to have someone identified to have a definitive test under the statute, do you, asked Justice Lanzinger?

So What if Wilson’s DNA is on the Cigarette Butt?

Is that proof that Wilson is the perpetrator of these murders,  asked Justices Pfeifer?

Or that Noling wasn’t, asked Justice O’Donnell? The most it shows is that a cigarette that Wilson touched was in the victims’ driveway. Was Wilson ever a suspect at the time? Was he excluded at the time? At most Noling would get a new trial, commented Justice O’Donnell.  Has there ever been a DNA match to see if it was Wilson’s DNA on the cigarette butt? (answer: no)

Wasn’t Noling already excluded as the donor of the DNA on the cigarette butt, asked Chief Justice O’Connor?

Which Parts of R.C. 2953.74 are implicated here?

The outcome determinative and definitiveness tests must act together, commented Justice Lanzinger.

Would the Testing of the Cigarette Butt be Outcome Determinative?

Even if it did match Wilson’s DNA, that would only be one factor introduced at a new trial, Chief Justice O’Connor said, but was the state downplaying the significance of that factor? Coupled with the foster brother’s statement about Wilson’s involvement?

Didn’t Noling in fact confess to the police about this incident, asked Justice O’Donnell?

Best Outcome for Noling?

In a key exchange of the day, Justice Pfeifer asked defense counsel, “wouldn’t the best outcome for your client be for us to be with you on the merit issue, say we have jurisdiction, the General Assembly gave it to us specifically, and we think the trial court was wrong, and send it back for the proper analysis under the current statute.”  Yep. In a nutshell it would be.

How it Looks From the Bleachers

To Professor Bettman

The supplemental jurisdictional issue is really a sophisticated bear, and defense counsel spent a lot of her time carefully trying to address it.  Yet the Court seemed to pass over it lightly.  It looks like it is going to find that it does have jurisdiction, although it was not clear from the questioning exactly on what basis.

As for the merits, Noling didn’t seem to be getting much traction. Justice O’Donnell has made it clear in the past that he equates definitive with finality, but the legislature has spoken since his dissent in the Prade case, and he will respect that. Still, he seemed unsympathetic to Noling. The justices who spoke seemed really to get hung up on the outcome determinative prong, seeming to agree with the prosecutor (not necessarily Justice Pfeifer, whose disgust at the prosecutor’s declaration that this latest appeal was just done for delay was apparent from his facial expression) that even if it was Wilson’s DNA on the cigarette butt that would not be outcome determinative.  That is unfortunate, since that was not the issue the Court accepted the case on—which was strictly on the definitive test prong of 2953.74(A).

It looks like a long shot for Noling, but it’s hard to tell because of the silence of two justices and a substitute judge.  They may just go along with whatever the others decide on this one.

To Student Contributor Greg Kendall

Justice Pfeifer and Justice O’Donnell are skeptical that new DNA testing on the cigarette butt would be outcome determinative. On the jurisdictional issue, Justice Pfeiffer appears to be very convinced that direct appeal to the Supreme Court is required for “cases” in which the death penalty is imposed.  Chief Justice O’Connor was more on Noling’s side regarding whether testing on the cigarette butt would be outcome determinative. The court was clearly more interested in the merits of Noling’s actual innocence claim rather than on the interpretation of the DNA testing statute and the jurisdictional issue.


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