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Genetic Justice in Ohio − How Many DNA Tests Can You Ask For?

In 1990, someone murdered Cora and Bearnhardt Hartig, an elderly couple, in their home. Police arrested Tyrone Noling based on witness statements, but no physical evidence linked him to the crime. Noling was indicted despite passing a lie detector test, but the charges were dismissed in 1992 when the witnesses recanted, claiming that they only identified Noling as the murderer in the first place because they were threatened by the prosecutor. During the initial investigation, police performed a DNA test on a cigarette butt found in the murder victims’ driveway which ruled out Noling as the smoker. The court later deemed this early DNA test as a definitive DNA test which barred any further DNA testing throughout the life of the case. Based solely on new witness statements elicited five years after the crime, Noling was convicted and sentenced to death in 1996.

A new suspect surfaces

In 2009, another suspect in the Hartig murders surfaced through the efforts of Noling’s defense team.   Daniel Wilson had a history of victimizing the elderly, committing home invasions and murder – and he lived near the Hartigs. Furthermore, the prosecutor finally turned over exculpatory evidence from police interview notes taken in 1990. Those notes contained a statement by Daniel Wilson’s half-brother claiming Wilson had confessed to him that Wilson committed the Hartig murders.

Twice, in 2008 and again in 2010, Noling applied for a post-conviction DNA test based on a new Ohio statute allowing such testing. While the original DNA test excluded Noling, he wanted to re-test the cigarette butt to discover if the DNA matched Wilson’s. Noling’s applications were refused based on the lower court’s conclusion that the investigative DNA test in the early 1990s constituted a definitive DNA test and therefore Ohio law barred any further DNA testing, despite advances in the technology which might identify the DNA on the cigarette butt – and the real killer − rather than merely exclude Noling.

Ohio Supreme Court clarifies the “definitive DNA test”

On May 2, 2013, the Ohio Supreme Court untangled this knot, finally addressing how to apply these apparently conflicting DNA statutes. The definitive DNA test language in the statute which barred Noling’s request for a second DNA test was never defined in the statute itself but rather by case law. In 2010 the Court held that a prior DNA test could not be considered “definitive” if a more recent DNA testing method would provide information that the original test could not.

The bottom line following the Ohio Supreme Court’s May ruling is this:  Noling gets a second DNA test to determine whose DNA is on that cigarette butt, and in the future, trial courts must give a more liberal interpretation to the DNA statutes rather than engage in nearly automatic refusals of a second DNA test simply because one was given already.

Police and prosecutors –and even judges – make errors that can cost you your freedom. Yavitch & Palmer Co., LPA is a criminal defense firm devoted to criminal appeals for those unjustly convicted. If you or someone you care about is a facing a prison sentence or the death penalty, come to professionals who have pursued successful appeals for many Ohio residents in desperate circumstances.

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