Published Fri, Jan 4, 2013 3:32 pm Dateline
The Supreme Court of Ohio will hear oral arguments on Tuesday, January 8 in a case involving a request by death row prisoner Tyrone Noling for retesting of DNA evidence that was recovered from the scene of the 1990 double murder for which he was convicted and sentenced to death in 1996.
The court’s Office of Public Information Friday released previews of that case and six others to be argued next week.
In State v. Noling, initial testing of saliva from a cigarette butt found in the driveway of the victims’ home, conducted in 1993, excluded both Noling and a co-defendant, Gary St. Clair, as the source of the saliva.
Testing techniques available at the time were not able to link the saliva sample to any one individual, and a Portage County jury convicted Noling based primarily on trial testimony by two alleged accomplices who said they had waited in a car while Noling and St. Clair entered the victims’ home to rob it, and that Noling had admitted shooting the victims.
Noling, who was serving a prison term for breaking into and robbing two homes in Alliance on the same day as the murders, which took place 20 minutes away in Atwater, denied any involvement in the robbery or killing of the victims.
The alleged accomplices have since recanted their testimony.
In 2008, Noling, represented by attorneys from the Ohio Innocence Project, filed a motion in the trial court seeking to have the DNA on the cigarette butt retested.
The basis for that motion was Noling’s discovery that police investigating the murders had also compared the saliva to a sample taken from another man, Daniel Wilson, and found that Wilson was not excluded as a possible source of the saliva.
Wilson lived near the crime scene in Atwater in 1990, and was later convicted of murder and sentenced to death in an unrelated case.
He was executed on June 3, 2009, but his DNA profile is on file in the state’s CODIS database.
The court overruled Noling’s 2008 motion for new testing, holding that, under then-current state law, a new DNA test could be ordered only if there had not been a prior “definitive” test of that evidence.
The court found that the 1993 test had been “definitive” because it had positively excluded Noling and his alleged accomplices as the source of saliva on the cigarette butt, and therefore the law did not allow new testing.
In 2010, the General Assembly enacted S.B. 77, which allows retesting of biological evidence if the defendant can show that because of advances in testing procedures, a new test could disclose information that the first test could not, and there is a strong probability the new test would identify the true perpetrator of the crime.
Shortly after the new law took effect, Noling filed a new motion seeking a retest of the saliva on the cigarette butt to determine if it matched Wilson’s DNA profile.
The trial court again denied his motion, this time citing a separate provision of the law stating that, once a defendant’s motion for new DNA testing of evidence has been denied, a court may not entertain any subsequent motions seeking retesting of the same evidence.
The court held that, because Noling’s 2008 motion seeking retesting of the cigarette butt had been denied, the court could not consider any new motions to retest that same evidence.
Noling sought and was granted Supreme Court review of the trial court’s ruling.