Ohio Death Penalty Information

Tyrone Noling denied retrial in Portage County Common Pleas Court: Andrea Simakis this article in the Cleveland Plain Dealer, entitled "Death row inmate denied second trial," on a ruling yesterday in Portage County Common Pleas Court denying Tyrone Noling's motion for a retrial based on new evidence uncovered in a recent Plain Dealer series. 

• Links to articles and other materials regarding the Noling case are on the Plain Dealer website here.
• Earlier posts on Noling case here.

Cleveland Plain Dealer editorial on Ohio public records law / Tyrone Noling case

The Cleveland Plain Dealer has this editorial, entitled "Hiding in plain sight: Ohio Supreme Court's decision to let a bad ruling stand keeps public records out of reach of those who need them most."

In entirety:
When someone's life is on the line, the state shouldn't be able to squirrel away any secrets.

And yet that is exactly what the Ohio Supreme Court does when it allows prosecutors to duck behind the 1994 Steckman decision. That troubling ruling denies some defendants the right to use public records requests to get interrogation transcripts, witness reports and other information about their case.

That's true even if you're a death row inmate facing a gurney and a deadly needle. Yet any ordinary citizen can submit a public records request to the county prosecutors and obtain the same material.

A prime example of how application of the Steckman decision can go wrong is the case of Tyrone Noling, sentenced to death in 1996 in the killing of a Portage County couple.

Now, as reported by The Plain Dealer's Andrea Simakis, Noling is fighting for a new trial based on information in prosecutors' records that indicates police knew of two other possible suspects. Noling's lawyers received the records because The Plain Dealer posted them on its Internet site. That's too circuitous of a route when life and liberty hang in the balance.

None of that seems to matter to Ohio's Supreme Court justices, who have not adequately explained their rationale for approving Steckman in 1994. Indeed, logistics seemed more of interest than pertinent questions of fairness.

Former Justice Andy Douglas, who wrote the majority opinion, said the criminal justice system was bombarded by public requests from inmates. And the current justices were equally skittish recently about their vote to retain Steckman in December. Only Justice Paul Pfeifer, who was one of two justices who voted against Steckman, disclosed his vote.

Both the decision and the court's failure to disclose the votes are troubling. It doesn't take a law degree to see that state prosecutors shouldn't be allowed to hide information that could raise reasonable doubts about a defendant's guilt. The General Assembly should rewrite public records law to overturn this troubling decision.

• More information on Tyrone Noling case is here.
• Earlier coverage of issues raised by the Ohio Supreme Court's 1994 ruling in Steckman v. Jackson (State ex rel Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 NE.2d) is here

Regina Brett column on Tyrone Noling case:  Cleveland Plain Dealer columnist Regina Brett has this column, entitled "A prosecutor's misplaced concern."

Excerpt:
The prosecutor's file contains facts that might free a man on death row.

But for 10 years, Tyrone Noling and the attorneys handling his appeals haven't been allowed to see them.

They didn't know the information existed until Plain Dealer reporter Andrea Simakis found it.

Why?

Ohio doesn't have open discovery. Prosecutors don't have to open their files and share with the defense. They can actually hide information.

Journalists can get information that the defense can't.

What's at stake?

Only a man's life. ...

• Earlier coverage of Tyrone Noling case is here.
• Links to earlier Plain Dealer series on Noling case is here.
• August 16 Brett column on Noling case, entitled "Why did evidence go unseen so long," here.
• Earlier Brett column, entitled "Let's try to reform justice," calling for a change to Ohio Criminal Rule 16, which prevents open discovery by defense attorneys in criminal cases, is here.

New trial sought for Tyrone Noling in Portage County Common Pleas Court:  Andrea Simakis has this article in the Cleveland Plain Dealer, entitled "Files require retrial, judge told; Prosecutor says secret facts don't matter."  The Ravenna Record-Courier has this coverage, entitled "Noling eyes new trial in 1990 Atwater murders."

Plain Dealer excerpt:
Records unearthed from prosecutor's files last year by The Plain Dealer provide compelling evidence that Tyrone Noling did not kill an Atwater Township couple, his lawyer told a Portage County judge yesterday.

Noling was convicted in 1996 of the murders of Cora and Bearnhardt Hartig and sentenced to die, not because he was guilty, but because his attorneys didn't do their jobs and prosecutors withheld information crucial to his defense, said Ohio public defender Kelly Culshaw, arguing for a new trial.

It doesn't matter what those records show, Assistant County Prosecutor Pam Holder countered - Noling's lawyers got them after the newspaper posted them online, so Noling shouldn't be able to use them.

...Following The Plain Dealer stories in August, Noling's lawyers asked federal Judge Donald Nugent to stop proceedings and give them access to prosecution files.

Nugent refused, so Culshaw filed a motion for a new trial in Portage County before Enlow, the judge who heard Noling's appeal a decade ago. Enlow listened yesterday as Culshaw ticked off evidence jurors never heard, including the fact that police questioned two "viable alternative suspects" soon after the killings in 1990.

...Records obtained by The Plain Dealer also showed that key witnesses for the prosecution drastically changed their stories from interview to interview, in some cases, telling the grand jury one thing, the trial court another.

"Inconsistency after inconsistency, lie after lie," Culshaw recounted. "The only way to fix the mistakes in this case is to give Mr. Noling a new trial."

Don't do it, assistant prosecutor Holder said, arguing that Noling has been raising the same issues in the courts for years and judges have found his claims unconvincing.

Enlow will issue a written decision on whether to grant Noling a new trial.

To read the Plain Dealer stories about Noling and public documents, visit www.cleveland.com/doubts

(Earlier coverage of Tyrone Noling case here.)

Tyrone Noling motion to examine new evidence denied for second time in US District Court

As noted earlier here, Ohio death row inmate Tyrone Noling's efforts to have his federal appellate proceedings held in abeyance to allow a state court evidentiary hearing of new evidence uncovered in a recent series of articles in the Cleveland Plain Dealer was denied by US District Ct Judge Donald Nugent on Nov. 6.  In the Nov. 6 ruling, Judge Nugent stated he saw no substantial difference between information presented by the Plain Dealer series and an article published in 2003 In Cleveland Scene magazine - and therefore a new evidentiary hearing was procedurally barred because the issue was not raised after the earlier article.  Noling attorneys subsequently filed a motion for reconsideration of the ruling, arguing why evidence presented by the Plain Dealer was indeed new and substantially more compelling than that published in the Scene article.  Yesterday the motion was denied - without written opinion - by Judge Nugent.  Order noting the denial is here (5-page pdf) (2-word order affixed to the 5-page Noling motion for reconsideration - Note: the "Motion Denied" order is on p. 1, but may be hard to see because of poor scan quality).

• Judge Nugent's Nov. 6 written court order is here (4-page pdf).
• Links to recent series of articles on the Tyrone Noling case in the Cleveland Plain Dealer are here and here.
• 2003 article by Martin Kuz in Cleveland Scene magazine, entitled "The Unlikely Triggerman," is here.
• Additional information on Noling case is here.

US District Ct Judge Donald Nugent denies Tyrone Noling motion to examine evidence of innocence brought to light by recent Plain Dealer series of articles

US District Ct Judge Donald Nugent has denied Tyrone Noling's motions for preservation of evidence in his case, and for an abeyance of proceedings in federal court to allow hearings on new evidence brought to light in a recent series of articles in the Cleveland Plain Dealer that raises serious doubts about Noling's guilt.  Judge Nugent ruled that a 2003 article in Cleveland Scene magazine identified substantially the same evidence casting doubt about Noling's guilt as those reported on in the Plain Dealer series of articles - and that because of restrictions on habeas corpus filings put in place by the Anti-Terrorism and Effective Death Penalty Act, it is now too late to raise raise new evidentiary issues in the case.  (I.e., the attorneys should have used the evidence to bring a state court challenge soon after it came to light in the Cleveland Scene article, and before initiation of federal habeas proceedings.)

Excerpt from Judge Nugent's order:

In the recent Rhines v. Weber, 544 U.S. 269 (2005) The United States Supreme Court provided guidance to habeas courts regarding when it is appropriate to stay a case pending a petitioner's return to state court.  The Rhines Court cautioned that stay and abeyance, if utilized too often, would frustrate the Anti-Terrorism and Effective Death Penalty Act's "twin purposes" of reducing delay and encouraging petitioner's to fully exhaust claims in state court prior to filing a federal habeas petition. Id. at 276-77.  Accordingly, the Court held that habeas courts should only grant a petitioner's motion to stay the federal habeas case to exhaust a claim in state court if that court determines "there was good cause for the petitioner's failure to exhaust his claims first in state court."  Id. at 277.  Moreover, a district court should only grant a stay if it appears that there is some merit to the petitioner's unexhausted claims.  Id.

In the instant case, the Petitioner has failed to explain why he did not previously fully exhaust his actual innocence and Brady claims in state court.  In her opposition to the Petitioner's Motion to Stay, the Respondent asserts that all of the "new" information contained within the PD article was previously published in a Cleveland Scene Magazine article on September 10, 2003.  That article predated Petitioner's initiation of his habeas litigation.  Although the Petitioner argues in his Reply brief that the Cleveland Scene article did not "reference the significant documentary support upon which the Plain Dealer article relied," he fails to articulate how the information raising doubt about the Hartigs' murders differs among the two articles...

• Judge Nugent's full court order is here (4-page pdf).
• The two motions filed for Noling which were denied by Judge Nugent are here (via the Ohio Public Defender website.)
• Links to recent series of articles on the Tyrone Noling case in the Cleveland Plain Dealer are here and here.
• 2003 article by Martin Kuz in Cleveland Scene Magazine, entitled "The Unlikely Triggerman," is here.
• Additional information on Noling case is here.

The Plain Dealer has this editorial, entitled "A legal twist that chokes justice," calling for Ohio's public records law to be changed to allow criminal defendants and their attorneys access to public records which are accessible to everyone else.

• Note:  Part of the current law in effect since a 1994 ruling by Ohio Supreme Court (State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 639 NE.2d) drew attention as a result of the inability of attorneys for Tyrone Noling to obtain public records used by the Plain Dealer in it's recent investigative report on the Noling case (until the PD posted the items on its website here).  A listing of some relevant current exemptions in the Ohio open records law is here (excerpted from the Ohio Open Gov't Guide, prepared by the Baker Hostetler law firm for the The Reporters Committee for Freedom of the Press).
• Some history of Ohio's "Sunshine" laws can be found in this 2003 article (22-page pdf), entitled "Interpreting Ohio's Sunshine Laws: A Judicial Perspective"  written by Ohio Sup Ct Chief Justice Thomas Moyer for the NYU Annual Survey of American Law.

(Earlier posts on the Tyrone Noling case are here.)

Attorneys for Tyrone Noling have withdrawn their request for a court order to have the Cleveland Plain Dealer turn over public records documents used in the PD's recent investigation of the Noling case (see earlier post here.)  The paper addressed the request for the documents in this Sept. 9 article - which included this link to the requested documents on the PD website, thus rendering the court order unnecessary.

(Earlier coverage of the Tyrone Noling case is here.)

Mike Tobin has this article in the Cleveland Plain Dealer, entitled "Under law, defense can't get public records," on efforts in US District Court by Tyrone Noling's attorneys to obtain records from the Plain Dealer used in its recent investigative reports on the Noling case, which they are unable to obtain directly under current public records law.

Excerpts:
Ohio law prohibits criminal defendants and their attorneys from seeing public records that could help them argue their case, even though the documents are ones that everyone else can obtain.

That legal barrier is why lawyers for death-row inmate Tyrone Noling this week asked a federal judge to force The Plain Dealer to turn over public records the newspaper obtained that call into question Noling's guilt.

Noling's lawyers said they have been unable to get the records because of a 1994 Ohio Supreme Court ruling that bars defendants, inmates and their lawyers from getting police records that anyone off the street can easily obtain.

"We feel we've been hamstrung because we don't have access to documents," said Kelly Culshaw, an Ohio public defender representing Noling.

...Last month, The Plain Dealer published stories challenging the prosecution's claim that Noling used a .25-caliber handgun to kill the Hartigs and ordered an accomplice to get rid of the gun. The articles, by reporter Andrea Simakis, presented evidence that wasn't offered at Noling's trial, including reports that another man questioned about the murders refused to take a polygraph and owned a .25-caliber Titan, one of four makes that ballistics experts concluded could have been used to shoot the Hartigs.

Defense lawyers also never knew that a psychologist hired by prosecutors warned them that a key witness might make up testimony to win immunity.

Three friends of Noling's confessed to participating in the 1990 killing of the Hartigs and named Noling as the shooter. They later recanted, saying they lied to save themselves because an investigator for the prosecutor's office threatened them. They also said that after they agreed to cooperate, the investigator provided them with details of the crime so they could give convincing testimony.

...Noling's attorneys asked that the case against their client be returned to state court for a hearing on the facts revealed in the Plain Dealer articles. They said they did not have some of the evidence cited in the articles; that evidence was obtained from the Portage County prosecutor's office.

...The Plain Dealer has put records it obtained from the Portage County prosecutor's office online. To view them, go to http://secure.plaind.com/records/.

...Plain Dealer Editor Doug Clifton said he finds it troubling that Noling's lawyers have been unable to get documents the rest of the public can obtain.

"I think it's more than strange that the defense team has to subpoena a newspaper reporter to get records that the reporter got by virtue of being a citizen," Clifton said. "There's something drastically wrong with the law."

Lawyers for the state did not return calls seeking comment. Culshaw, Noling's attorney, said she expects them to object to the request and cite the 1994 Supreme Court ruling as the reason.

(Earlier posts on Noling case here.)

Bob Russ has this commentary in the Canton Repository, entitled "In Court, Bottom Line is More Than Wins, Losses," on the Tryone Noling and Clarence Elkins cases.

Excerpt:
Evidence has been uncovered that casts significant doubt about the guilt of a man on death row for murder and, once again, prosecutors are fighting to ensure the conviction isn’t overturned.

Maybe they truly believe they’re right. But it seems just as likely that some prosecutors are more concerned about maintaining their won-lost record — evidence be damned.

The Plain Dealer recently published a series of stories about convicted killer Tyrone Noling, on death row for the 1996 murders of a Portage County couple.

The articles raised doubts about Noling’s guilt, presenting evidence that wasn’t offered at Noling’s trial: A psychologist hired by the prosecution warned that a key witness might make up testimony to gain immunity. Three supposed accomplices later recanted, saying they lied to protect themselves after they were threatened by an investigator from the prosecutor’s office. They said the investigator provided them with details of the slaying after they agreed to take the stand against Noling. And an alternate suspect the newspaper identified refused to take a polygraph test.

Bottom line, there’s plenty of reason to doubt whether the conviction is a fair one. So you’d think prosecutors would want to be sure. Who wants to see an innocent man executed?

Instead, they’re fighting tooth and nail to be sure Noling never gets another day in court.

(Earlier coverage of Tyrone Noling case is here.)