Merit Decision. Criteria for Postconviction DNA Testing. State v. Noling

On May 2, 2013, the Supreme Court handed down a merit decision in State v. Noling,  2013-Ohio-1764. In a 5-2 decision written by Justice Lanzinger, the Court held an application for post conviction DNA testing filed and denied under an earlier statute does not bar a trial court from reviewing a later DNA testing application filed under the new statute with more liberal acceptance criteria.

More specifically, the Court held that before dismissing the subsequent application for re-testing under the new statute with the more liberal acceptance criteria, the trial court must apply the definition of “definitive DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C. 2953.74.  In finding that the acceptance criteria, and more specifically that the term “definitive DNA test” had been expanded by the Legislature, the Court focused on the power of current DNA testing to identify a single perpetrator. More simply put, just because a prisoner already had one DNA test doesn’t automatically mean he can’t have another one if it would provide more information about the perpetrator, and in making the decision, the trial court must apply the more liberal criteria in the current DNA statute, rather than relying on its previous determination under the old criteria.

The two justices who dissented, O’Donnell and French, did so strictly on jurisdictional grounds.  That means they didn’t necessarily disagree with the majority conclusion about the DNA re-testing.  They merely thought the Court did not have jurisdiction to hear the case.

The Jurisdictional Issue

After the Court had accepted this case on discretionary appeal, it asked for supplemental briefing on the issue of whether it had jurisdiction to hear the case.  In the November 1994 election, the voters approved amendments to the Ohio Constitution that took away intermediate appellate review of cases in which the death penalty had been imposed, and provided for only a mandatory direct appeal of those cases to the Supreme Court of Ohio. In other words, the Ohio Supreme Court would be required to hear every direct appeal in a death penalty case, and would be the only appellate court to do so. But in 2011, in State v. Davis, 131 Ohio St.3d 1 (2011), the Court held that intermediate courts of appeals could review trial court rulings from postconviction matters arising out of death penalty cases.  Put in the most basic terms, Davis held that the 1994 amendments to the Ohio Constitution did not apply to all appeals in cases where the death penalty is imposed.

R.C. 2953.73(E)(1) grants exclusive jurisdiction to the Supreme Court of Ohio to review rejections of applications for DNA testing in cases in which the death penalty has been imposed. However, the statute also makes that Supreme Court jurisdiction discretionary rather than mandatory.  In other words, that statute takes appellate jurisdiction away from the intermediate appeals courts on this narrow subsection of death penalty postconviction  issues, and also limits the high court’s jurisdiction.  So the Court asked the parties to brief the question of whether, in light of Davis, R.C. 2953.73(E)(1) is constitutional.  In other words, could the General Assembly statutorily eliminate intermediate appellate review of rejections of DNA testing in capital cases, and bestow exclusive, but limited, appellate jurisdiction on the Supreme Court in this area?  The short answer is that the majority said yes it could, and the dissent (written by Justice O’Donnell, joined by Justice French) said no it couldn’t. A significant part of the majority decision, and all of the dissent deal solely with this issue.

If you are a jurisdiction geek, you’ll love it all. You can spend hours on it. But since I think the far more important part of the decision is the part about the subsequent DNA test, you’re on your own from here on out about the jurisdictional issue. The irony is, that Carrie Wood, of the Ohio Innocence Project, who argued the appeal for Noling, and who is my colleague here at the University of Cincinnati College of Law, argued the Court did not have jurisdiction to hear this case, pretty much for the reasons adopted by the dissent. And the prosecution half-heartedly agreed, although it back-pedaled away from that position at oral argument.  At the end of the argument, I predicted the Court was going to find that it did have jurisdiction, although as I stated at the time it wasn’t clear on what basis.

Now, On to the Main Course

A Short History of the DNA Testing Statutes

In 2003, the legislature passed S.B. 11 to establish procedures for DNA testing for eligible inmates, who had one year after the effective date of S.B. 11 to submit applications. The deadline was later extended by a year by Sub.H.B. No. 525.

In 2006, the legislature passed S.B. 262, which made the DNA testing program permanent.  “Definitive DNA test” was not defined in these early statutes. But the Court supplied a definition in 2010 in State v. Prade, holding that that a prior DNA test is not “definitive” within the meaning of R.C. 2953.74(A) when a new DNA testing method can detect information that could not be detected by the prior DNA test.

The DNA testing-statutes were amended for the fourth time when S.B. 77 was passed on July 6, 2010. Unlike earlier versions of the statute, this one does provide a definition for the term “definitive DNA test.” That definition is found at R.C. 2953.71(U), and provides that “a prior DNA test is not definitive if the eligible offender proves by a preponderance of the evidence that because of advances in DNA technology there is a possibility of discovering new biological material from the perpetrator that the prior DNA test may have failed to discover.”

Procedural History—Very Short Version

Tyrone Noling was convicted of the aggravated murders of Bearnhardt and Cora Hartig, an elderly couple, in Portage County, and sentenced to death.  The case has an extensive postconviction history, but the only issue before the Court is Noling’s request for postconviction DNA testing under the current statute.

Noling’s First Application for Postconviction DNA Testing

In September of 2008, under S.B. 262, Noling sought DNA testing of a cigarette butt found on the driveway of the Hartigs’  house. The application was denied under R.C. 2953.74(A), which required a trial 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 had a definitive DNA test in 1993 (albeit not pursuant to the DNA statutes now at issue), which had ruled out his DNA (and that of his co-defendants) from the cigarette butt.

Noling’s Second Application for Postconviction DNA Testing

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. In December of 2010, Noling filed a second application for DNA testing of the cigarette butt, alleging that the prosecution had failed to disclose a statement made by Wilson’s  foster-brother that implicated Wilson in the Hartig murders. Noling submitted an affidavit from the foster brother to that effect.   Noling claims that previous analysis of the cigarette butt and of Wilson’s saliva did not exclude Wilson as the source of DNA on the cigarette, and that advances in DNA technology can do more than exclude– it can positively identify the DNA on the cigarette butt. (Wilson has since been executed for another murder.  However, his DNA remains in the CODIS data base.)

The trial court denied Noling’s second application on the grounds that R.C. 2953.72(A)(7) required rejection of the second application because the first application  was denied.

Noling’s Position before the High Court

Noling argued that the trial court had failed to consider the new statutory definition of “definitive DNA test” and failed to consider the new and more liberal acceptance criteria for testing. The majority agreed, seeing a big difference in technological advances between merely excluding someone as a perpetrator (the earlier finding) and actually being able positively identify the source of the DNA (now possible under new technology.) The Court noted that Wilson’s DNA (plus that of any other suspects) had not been compared to the DNA on the cigarette butt.

Actual Holding

Justice Lanzinger wrote, “[T]he trial court failed to consider Noling’s application in the context of the new statutory requirements— whether there is a possibility of discovering new biological material that is potentially from the perpetrator that the prior DNA test may have failed to discover. Therefore, the court erred by failing to apply the definition set forth in R.C. 2953.71(U) before dismissing Noling’s second application under R.C 2953.72(A)(7). We reverse and remand to the trial court for consideration of the second application under the current versions of the statutes.”

Rejection of Other Prosecution Arguments

The majority also rejected a separation-of-powers argument made by the state, and rejected what became the mantra of the prosecutor during oral argument—that the test should be denied because it was not outcome determinative.  The prosecutor just pounded and pounded on this at argument, and at times it sounded as if the Court were buying it.  But as the Court properly held, the trial court never considered that issue at all, so that issue wasn’t before the high court in this appeal.  It will be critical on remand, though, where the trial court must now determine the outcome-determinative issue for the first time, and I’m sure the prosecutor will keep pounding away that it isn’t.

Case Syllabus

1. R.C. 2953.73(E)(1), which grants exclusive jurisdiction to the Supreme Court of Ohio to review rejections of applications for DNA testing in cases in which the death penalty is imposed, is constitutional.

2. Before dismissing a subsequent application for postconviction DNA testing under R.C. 2953.72(A)(7), a trial court must apply the definition of “definitive DNA test” set forth in R.C. 2953.71(U) and the criteria of R.C. 2953.74.

Concluding Observations

I admitted a bias from the get-go in  the case, as it was argued by a member of the law school’s esteemed Innocence Project. I was worried about how much the Court was diverted by the outcome determinative issue, which made it look like a loss for Noling, and I’m glad to see that was not the case. And as for the jurisdictional issue, I think the dissent has the better view, and the majority make come to regret its decision on this.

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  1. Pingback: An Update on the Noling case | Legally Speaking Ohio

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