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The Butt Stops Here

Sometimes you just get tired of saying the same thing over and over again.

In case after case, the same question comes up, and time after time I’m left to wonder why they don't just (and excuse me as I go into all caps shouting mode here, but it's pure frustration) TEST THE DAMN DNA.

Really, why not?  It's a serious question that deserves a serious answer.  So here it is:

They don't wanna and they don’t gotta.

And they don't wanna because it might undermine the whole project.  Start the ferris wheel spinning out of control.  Reveal that the emperor is not only naked but just a sniveling little kid terrified of the monsters hiding under the bed.

I wondered for years while the Commonwealth of Virginia refused to test DNA in Roger Keith Coleman’s case.  If it was his, it would lay to rest the claims that they’d executed an innocent man.  If it wasn’t, it would allow them to go and find the person who actually raped and murdered Wanda McCoy.  Eventually, they tested it.  After years of refusal and stonewalling and litigation.

Whew.  They got it right.  But what were they scared of?  Oh, yeah.  They were scared of what the truth might be.

This time I’m wondering about the prosecutor in Portage County, Ohio and the DNA on a cigarette butt that isn’t Tyrone Noling’s.

Noling is on death row for the 1990 murders of Cora and Bearnhardt Hartig in their home.  It's a crime he says, and always has said, he didn't commit.  The only real evidence against him came from three witnesses who've recanted.  There's another witness, though.  Nathan Chesley.  The prosecutors spent over a decade concealing what Chesley’d told them back in 1990: that Daniel Wilson (since executed by the state of Ohio) was the actual killer. Chesley knew Wilson, said it's the sort of thing Wilson would have done, and said that Wilson had actually confessed to him.

How credible is Chesley?  Hard to say since his testimony has never been presented in open court.  Of course, had the prosecutors honored their constitutional obligation to turn over any evidence favorable to the defense before trial, the evidence would have been tested just that way.  Or had they not successfully opposed a motion for new trial based on the evidence.

Still, we are where we are.  And where we are is in the Ohio Supreme Court because of another piece of maybe evidence.  That cigarette butt I mentioned.

Police recovered it from the Hartig's driveway.  It was tested for DNA.  It wasn’t Noling's. Which, of course, proves nothing.  Noling wants it tested to see if it's got Wilson's DNA on it.  They can do that, since Wilson's DNA is in a state database.  Noling's been asking for the test for a few years now.  The state, in the person of the Portage County Prosecutor, has been refusing just as long.  Then-Governor Strickland and Attorney General Cordray asked.  The state turned them down, too. 

The state's argument is that there's no point in testing the butt for Wilson's DNA because even if it's there, that doesn't prove he was inside the house and murdered the Hartigs.  After all, the suggestion goes, it's far more likely that confessed killer Wilson is innocent but happened to drive by the house that day and toss the butt out the car window.

Or something.

Besides, the state says, Noling's just trying to stall, to drag out the time before he gets killed.  While we, the good prosecutors of Portage County just want to get on with it.  In their effort to make sure that Noling can't stall the execution for a month or two while the DNA testing is done, they've spent years fighting to make sure it isn't.

Here's the bottom line.  There's no particularly credible evidence that Tyrone Noling murdered the Hartigs.  That doesn't mean he didn't do it, of course.  But there's little read evidence Noling killed them, and there’s some evidence, maybe credible and maybe not, that Daniel Wilson did. And there's a piece of evidence, easily tested, that might lend strong support to the claim that Wilson is the killer. Or it might be altogether irrelevant.  We won’t know if they don’t test it, and they keep refusing.

And if the only real reason not to test it is they don’t wanna and don't gotta . . . .

Well, that's not really good enough.

I keep asking: Where's the harm? What's the downside?

WHY NOT JUST TEST THE DAMN DNA?

Really?

Why not?

There's really only one reason.  Because it might just tend to show that they put an innocent man on death row, cheated to get him there, and want to make damn sure that they get him killed before anyone finds out that they really screwed up.

That's heartbreaking.  It's also something very like cold-blooded, carefully-calculated-and-calibrated murder.

The Ohio Supreme Court can stop it.  They can order the testing. Oral argument was Tuesday, January 8.  (You can watch it hereJeff Gamso.)  The butt stops there.

A version of this article was posted January 16 on my blog, Gamso - For the Defense under the title The Butt Stops There.


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