Tyrone Noling Continues 20-Year Legal Battle From Death Row

On the night of April 5, 1990, 81-year-olds Cora and Bearnhardt Hartig busied themselves around their house in Atwater Township in Ohio. While Bearnhardt mowed the lawn and tended to his yardwork, his wife washed the windows in the spare room.

Two days later, Portage County Coroner Dr. Sybert pronounced the couple dead in an apparent double homicide.

The Original Case

Jim Davis, a son of the Hartig’s neighbor, discovered the bodies when he went to check on them. In an interview with ClevelandScene, he described them as neat, and said he was concerned to see lawn equipment left across the front yard. When he looked in through the front window, he saw their bodies and notified authorities.

In the original police reports, detectives suspected the elderly couple knew the killer—there were no obvious signs of a struggle. Based on shell casings found at the scene, they believed the assailant sat with them at the kitchen table before taking out a Winchester .25-caliber gun and shooting Cora five times and her husband three times.

Police reports also indicated the crime scene showed evidence the killer sought something in particular. He or she didn’t steal Cora’s wedding band or Bearnhardt’s wallet but instead scattered papers and overturned drawers in a hasty search of the house.

As there were no fingerprints left behind by the killer and no witnesses to the crime, authorities began the case without any clear suspects.

The same week the Hartigs were murdered, an 18-year-old committed a string of robberies against elderly residents in the nearby town of Alliance, Ohio. Police caught Tyrone Noling after his gun, another .25-caliber, accidentally discharged in the home of a 74-year-old woman.

Although Noling had checked to make sure the woman was unharmed and had left his fingerprints at this and another home he had robbed, Portage County Police were interested in pursuing him as well as his friend, 21-year-old Gary St. Clair, for questioning in the Hartig homicide.

Noling and St. Clair’s roommates, 18-year-old Joey Dalesandro and 14-year-old Butch Wolcott, would be added into the Police’s mix of suspects based on their relationship to Noling and the proximity of their residence—approximately 14 minutes—to the Hartig’s home.

Police sent in the weapon for a ballistics test on Noling’s stolen .25-caliber gun, but results confirmed it did not match the weapon in the Hartig’s murder. With no evidence to associate Noling or his roommates to the double homicide, the investigation was put on hold.

However, Noling pleaded guilty to the robberies he committed in Alliance and was sentenced to twenty-five years in prison.

In 1992, two years after the Hartig’s murder, the Portage County Prosecutor’s Office reopened the case with Ron Craig as the lead investigator. That October, Noling was indicted in the case but dismissed after passing a polygraph test during which he said he had not committed the murders.

Craig looked to Noling’s previous roommates, meeting first with Wolcott. According to police reports, Craig lied to Wolcott about DNA the crime scene unit found at the Hartig home, which linked them to the crime. Police can use “deception,” or legally make false claims, during an interrogation based on precedents set in Supreme Court cases Frazier v. Cupp (1969) and Oregon v. Mathiason (1977).

According to Cleveland.com, Craig offered Wolcott two choices: He could escape punishment and testify in court against Noling about the Hartig’s murder or be charged for killing the couple himself. Wolcott took the deal. In 1995, Noling was re-indicted in the case, and Judge George Martin assigned an investigator to begin additional research.

In January 1996, the murder trial began. The jury heard confessions from Wolcott, Dalesandro and St. Clair. They confessed Noling had been involved in the murder and several of them took plea deals to avoid cases of their own.

The only other piece of evidence was a cigarette butt found at the scene of the crime. Neither of the Hartigs smoked, but the butt was discovered near their garage. DNA testing was inconclusive but became the sole physical evidence at the time.

Similar to his friends and alleged accomplices,Noling was offered a plea deal of his own if he confessed to the murders. The Prosecution said they would remove the death penalty from the table and simply pursue a prison sentence for the murders.

Despite this, Noling continued to maintain his innocence. On February 20, 1996 Judge Martin passed down his ruling and sentenced him to death.

The Evidence

Since the 1996 ruling, most evidence from the original case has been called into question, and Noling’s alleged accomplices recanted their original statements. Wolcott, who was  16-years-old during the time of his testimony, said he deals with the guilt of testifying against his friend every day in an interview for a documentary prepared by Noling’s legal team and Off Center Media.

“I’d sunk to a place that I had never seen before when I walked off the stand. I couldn’t even look at Tyrone because to lie against somebody,” he said. “Even at that age you can understand that you’re damning somebody to death by doing this. And that’s what I did.”

Additionally, two other suspects have been presented as the potential killer. Cleveland.com reported a friend of the Hartigs, Dr. Cannone, said Bearnhardt mentioned lending $10,000 to an insurance agent recently and the money was due back soon. Cannone said Hartig’s parting words were “the whole things is starting to smell.” Though he was mentioned in the original case, his DNA was not compared to the cigarette butt. 

In 2011, Nathan Chesley went to the Portage County Courthouse to testify his foster brother, Daniel Wilson, confessed to the murder. Wilson, originally listed as a suspect in the case, had been executed in 2009 for a separate murder he was convicted of. Noling’s legal team claimed to have no knowledge of Wilson’s potential role in the crime until Chesley’s testimony.

Plain Dealer reporter Andrea Simakis shared additional information in 2006 with Noling’s team. She extensively covered Noling’s case and filed a public records request for information from the courthouse. What she received was more than was offered to Noling’s team during the original discovery period for the 1996 case and raised further questions.

During this time, Noling’s legal team repeatedly filed appeals with the Portage County Court of Appeals as well as the Ohio Supreme Court. They continued to affirm Noling’s innocence and state he was wrongly convicted.

Meanwhile, Noling spent 19 years as a Death Row inmate at Ohio State Correctional Institute in Youngstown, Ohio.

The DNA Process

The DNA on the cigarette butt found at the crime scene became the prosecution’s lynchpin in the original 1996 case, proving to be the most important evidence connecting Noling to the crime and aiding in his conviction.

Although Noling continued to assert his innocence from death row, as well as during the multiple appeals over the years, he and his legal team have been adamant about not only retesting the DNA found on the cigarette butt but also comparing the shell casings to those listed in a federal database.

In June 2017, WKSU reported Vigiluicci said “Noling already got what he’s entitled to under state law and that he has no further right to ‘scrutinize, review, or analyze’ the data”—he added there is no DNA left to perform a second test.

DNA, or deoxyribonucleic acid, “is a long, string-like molecule found inside the nucleus of a cell,” wrote Kristina Crowley, a forensic scientist DNA technician for Ohio’s Bureau of Criminal Investigation (BCI). “You can think of it as the blueprint for life.  The majority of our DNA—approximately 99.9%—is the same from person to person, but that less than 1% is what makes each of us unique.”

In criminal cases, forensic teams aim to retrieve and isolate this genetic material to catch criminals and build cases against them.

In Ohio, the DNA Unit of the BCI carries out this work, identifying “body fluids, primarily semen and blood, and then analyzes the specimen for DNA. It also collects and preserves trace evidence and potential contact DNA evidence,” according to the Ohio Attorney General’s website.

The retrieval and examination of genetic material is a complicated process: Crowley wrote contamination can occur at any point during the course of the investigation but certain “precautions, such as gloves and masks, are utilized to minimize the likelihood of introducing DNA foreign to the original evidence sample.”

DNA can further be degraded by exposure to UV light, moisture or warm environments that foster the growth of bacteria.

According to Anthony Tosi, Assistant Professor at Kent State University’s College of Anthropology and former forensic scientist in the High Sensitivity DNA group at the Office of Chief Medical Examiner in New York City, he said although there are variables to take into account, an optimal set of circumstances exists when testing DNA.

A standard analysis of approximately 40 cells minimum would yield a reliable “DNA signal,” but once the evidence has been tested, interpretations can be made of the results.

“The science is very robust [and] very tight; now, what you make of the data is entirely different,” Tosi said. “ The forensic scientist is supposed to be somebody who has minimal knowledge of the case to prevent bias.”

Tosi explains the lab still needs knowledge of the crime or the weapons used as a “baseline.” Assumptions are made in attempting to discern, for example, how someone may have been holding an object when he struck another person and “guide” from where and which evidence will be sampled.

Reliability has also come from new discoveries in the scientific community. Crowley wrote the lab follows several standardized guidelines set forth by the FBI, DNA Advisory Board and the National Research Council as well as going through several reviews by qualified analysts and supervisors to help ensure the dependability of the testing.

“The size of samples for testing have been reduced from the size of a dime to a pin head,” Crowley wrote. ”Swabs to collect cells for touch DNA testing are now regularly performed.  The time to obtain test results from samples has gone from weeks to days.  These advances have increased the demand and range for DNA testing.”

Advancements in the last two decades continue to refine and produce more accurate testing, however, these advancements have also inadvertently called into question earlier cases where DNA evidence produced convictions.

“We can measure the DNA better now,” Tosi said. “20 years ago—we had to eyeball it. We had to put the DNA in…essentially a slab of jello, and we had to run it through a jello matrix next to a known amount of DNA,” to approximate the cell’s length.

In cases where DNA evidence played a significant roles in a person’s conviction, today’s technology offers a precision that wasn’t previously available.

Early convictions using bite mark analysis, hair and fiber analysis or “even a DNA analysis that only has four genes” should require a second look at a case because, especially with hair and teeth, have no standardized earmarks to rely on. Tosi adds, if a match to a sample is found, there may be an innocent explanation for it being left in the first place. (For example, if a woman was raped with a condom, but the semen found came for a consensual encounter.)

In June 2013, Texas passed Senate Bill 344 (more commonly known as the “junk science” law referring to false or inaccurate explanations justified by flawed science) to allow convicted individuals to apply for a writ of habeas corpus on the grounds of new or changed scientific evidence not available at the time of their conviction.

The first law of its kind in the U.S., Texas wanted to provide an avenue for people to overturn their convictions in a world where scientific advancements continue to abound. To date, the state has overturned only a few convictions since SB 344 was passed.

Recently covered on Last Week Tonight with John Oliver, Oliver explained progress to reform on the federal level has been slow.

However in 2013, the National Commission on Forensic Science (NCFS) was founded as a “Federal Advisory Committee” to the Department of Justice (DOJ) to “enhance the practice and improve the reliability of forensic science” according to the DOJ website.

U.S. Attorney General Jeff Sessions suspended the charter with NCFS April 23,2017.

“Science is not cheap,” Tosi said while adding not wanting to reopen cases out of embarrassment or letting a conviction stand in place of a crime a person escaped punishment from is a “dangerous way of thinking.”

 

The Most Recent Appeals

During his imprisonment, Noling has appealed several times to have a lab test DNA found on shell casings and Cora Hartig’s ring boxes found at the crime scene.

In June 2015, the Eleventh District Court of Appeals dismissed Noling’s appeal and recommend his case to the Ohio Supreme Court, which accepted jurisdiction over it and agreed to hear the case.

Oral arguments in Noling’s ongoing appellate review began April, 2016. Almost one year after the Supreme Court accepted to hear his case.

According to Portage County Prosecutor Victor Vigluicci during his oral arguments to the Supreme Court, the Bureau of Criminal Investigation (BCI) insisted these items were “unsuitable” for DNA testing even though the tests were never attempted.

Vigluicci said the Ohio legislature maintained the right to restrict the appeals of inmates and argued people are entitled to one fair trial and one direct appeal.

In 2016, Ohio changed the law, allowing convicted felons not on death row the right to an automatic appeal when their requests for DNA tests were denied, but capital defendants, like Noling, could be refused.

Since Ohio allows defendants not on death row to have the automatic right to appeal a decision by a trial court barring them from access to DNA test, it can’t deny the same right to defendants facing the death penalty. The defense argued this would violate the Equal Protection Clause of the 14th Amendment, which states no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

However, the Ohio Supreme Court disagreed and overruled this law on the ground of being unconstitutional in limiting to those not on death row.

During the hearing, Justice Paul Pfeifer asked Vigluicci if there was a dispute as to whether or not the shell casings found at the scene were hopelessly contaminated by years of handling by law enforcement. Vigluicci said the remaining evidence was untestable.

Carrie Wood, one of Nolings attorneys, argued that both the shell cases and the ring boxes were never tested to see if any DNA evidence was left behind.

The trial court did agree to test the cigarette butt found in the driveway of the scene, which could have tied someone else to the case. The tests at the time revealed that Noling had not smoked the cigarette so that evidence could not place him at the house.

However, Noling’s team did not receive the full report from the original test. Instead, they were granted a one page summary. His lawyers argued to have the full results of the DNA testing from the cigarette butt so they could compare it to the future DNA tests on the shell casings and ring boxes.

In December 2016, The Supreme Court ruled in favor of Noling and said he should have the right to appeal because the state law was unconstitutional; now, Noling could make multiple appeals as a death row inmate.

2017:

Noling filed a merit brief, which explains the rights and wrongs through the course of a case, to the Supreme Court in January 2017 which can be found here.

Noling’s case came back to the Supreme Court in June 2017. Brian Howe, a representative of Noling’s from the Ohio Innocence Project, requested once again to test the shell casings and ring boxes collected at the scene for touch DNA. Howe also requested to be able to compare any DNA pulled from the shell casings and ring boxes to the existing DNA profile found on the cigarette butt.

Howe’s main argument was the DNA could set an innocent man free. Vigluicci, however, rejected the notion the men’s confessions were false. Vigluicci said, “I’m not interested in helping these people rewrite history.”

He went on to say the shell casings and ring boxes could not be tested because they had been contaminated by detectives and lab technicians over the years when they were unsure about DNA science.

The defense team still did not have the complete test results from the cigarette butt. Justice Judith French asked Vigiluicci why he was not releasing the results to the defense.

“We’re not here to question the methodology and processes of the BCI lab,” Vigilucci said, adding to dispute BCI’s practices would open a “Pandora’s Box.”

Vigiluicci said Noling’s team’s only focus was to delay the process, but Howe rebutted, “The quickest avenue for ending this is to actually test the evidence.”

Several attempts were made to contact Vigiluicci about the state’s case against Noling but requests went unanswered at this time.

The Ohio Innocence Project’s Involvement

Noling’s case is one of many that has attracted the attention of the Ohio branch of the Innocence Project, a group dedicated to helping exonerate wrongly convicted people while encouraging change in the legal system. Peter Neufeld and Barry Scheck of the Cardozo School of Law in New York’s Teshiva University founded the original chapter of the organization in 1992, and since then, has grown to encompass branches across the globe.

The Innocence Project usually takes on cases where DNA evidence becomes a cornerstone of the prosecution. To date, the program has assisted with the exoneration of 351 wrongly convicted people, and its website estimates these people spent an average of 14 years in prison before the program’s involvement.

The Ohio Innocence Project operates out of the University of Cincinnati’s College of Law and was founded in 2003. Specializing in cases of “actual innocence” the program takes on cases related to DNA evidence like Noling’s. (According to the website, these are cases where a convicted criminal did not actually commit the crime they were charged with.) Inmates must submit a petition to request assistance from the program, and if accepted, they work with a team of professionals and students.

Since 2003, the Ohio Innocence Project has helped exonerate 26 wrongly imprisoned people.

Law students aid in the running of the program, including investigative legwork and helping  decide what cases to take on. Once a case is picked up, they assist with anything from working on initial drafts and briefs to writing client correspondence.

Brian Howe, a graduate of the program, returned as a professor and faculty in 2014.

“Some of the cases that I worked on here as a student were still percolating and still in progress in litigation when I came back six years later,” Howe said. “It’s kind of good and kind of bad to see,” he added, explaining it was “a little sad” the cases weren’t closed, though he was grateful they were still ongoing.

Noling’s remains one of the ongoing cases. As one of the first cases taken on by the Ohio Innocence Project after their creation in 2003, Howe was not involved with the case as a student, but argued as a lawyer for Noling during the June appeal in front of the Ohio Supreme Court.

Howe said citing the errors in evidence analysis and recover made it an obvious choice for the program.

“You have a lot of red flags with the initial state’s case against him,” Howe said. “Of course the fact that this is a capital case, and he is still facing the death penalty right now just makes all of these issues more urgent.”

Howe also said the prosecutor’s reluctance to share the DNA report from the cigarette butt and lack of willingness to test additional evidence from the scene of the crime is an exception to the usual process.

“Generally speaking, post conviction DNA testing is designated to be a transparent process…In most cases you have both sides who are interested in getting to what the truth actually is. And that underlying data is what you need to get to that truth,” Howe said.

If the Ohio Supreme Court rules in Noling’s favor, he said it would reinforce already existing laws about the importance of transparency in criminal cases.

Howe and Noling’s other legal representation have been assisted by a team of concerned citizens, family and friends pleading his case in Portage county. They have created a website and profiles on social media, which they use to help spread the word about the case.

The group teamed up with legal representatives to film a documentary about Noling’s experience with the legal system. Howe said he recognized the benefit of the group, especially for raising awareness about pertinent facts related to the case.

“It’s just important for as many people as possible to be aware that there is a chance that we in the state of Ohio are set to execute an innocent man for a crime he didn’t commit,” Howe said. “That should shock people. And it should concern people.”

He added, “And I hope that people will take the opportunity to educate themselves about Tyrone’s case and recognize that this is something that can really happen.”

Moving Forward

If Howe and fellow members of the Ohio Innocence Project fail with their latest appeal in the Ohio Supreme Court, Noling’s team will not give up hope.

Noling’s legal team previously prepared a Brady claim with the courts to request a retrial, but Howe said they’d put it on hold while pursuing their current appeal.

Based on a 1963 Supreme Court ruling in Brady v. Maryland, a Brady claim requires both parties to share all exculpatory evidence (anything that may prove the innocence of the defendant) during a case.

Howe expected his team would return to the request for a retrial under the Brady claim, citing multiple instances of incomplete evidence.

“There is strong evidence that Tyrone is innocent, and the hope is that we will be able to do whatever we can to help make sure that he gets justice.”

 

Group Roles:

Meghan— Contacted Victor Vigluicci, wrote section on the original case, conducted research on the original trial, assisted with editing

Kyleigh—Contacted the Ty Noling Innocence on Death Row Facebook page, Reached out to friends and family, wrote the new appeals section dating from 2015-2017, wrote and voiced the podcast, and researched.

Christina— Interview Anthony Losi and Kristina Crowley, wrote section on DNA evidence, assisted in editing story and timeline, researched.

Mike— Conducted interview with Brian Howe, wrote section on the Innocence Project and its involvement with the case, conducted research on the discrepancies that arose after the 1996 ruling, assisted with editing, created timeline, formatted article in WordPress.

 

Behind Bars: Ohio death-row inmate fights for DNA testing in a 1990 Portage County murder case #JMCRPPhttps://t.co/ZQg35l1F96

— Kyleigh Jarosinski (@KyleighJTV2) October 14, 2017

#TyroneNoling continues a 20-year legal battle after being convicted and sentenced to death in Ohio. https://t.co/XZd06ZHcZb #JMCRPP

— Mike Nied (@MikeyNied) October 14, 2017

After 20 years on Ohio’s death row, Tyrone Noling attempts new appeal for DNA evidence https://t.co/vK4DnYSDzq #JMCRPP

— Christina Godfrey (@CA_Godfrey) October 14, 2017

#TyroneNoling, Ohio death row inmate may have new DNA evidence on his side…. https://t.co/vfDDQtN9Du

— Meghan M Costantino (@MeghanCos) October 14, 2017