Jan. 14
OHIO:
Can Ohio Handle the Truth About The Tyrone Noling Case?
In the face of a demand for DNA testing of evidence, state lawyers contort
themselves to keep a man on death row.
There are 4 hard truths in Tyrone Noling's unenviable life. The 1st 3 form a
part of his past that he can never get back: bad choices and decisions he made,
or that were made for him, which have put him where he is today. The 4th truth
is the biggest part of his present, and will surely determine his future -- or
whether he even has a future. Noling is on Ohio's death row, and has been since
1996, for a crime he says he didn't commit; a crime to which he is linked by so
little reliable evidence that a federal appeals court last year went out of its
way to express "concern" about the accuracy of Noling's conviction.
The 1st truth in Tyrone Noling's life is that an elderly couple named Cora and
Bearnhardt Hartig were murdered in their home in 1990. The 2nd is that Noling,
then a teenager, was convicted of the murders despite passing a lie detector
test -- even though there was no physical evidence linking him to the Hartigs
and the witnesses against him, co-defendants, were so unreliable that
prosecutors initially dropped the charges against him. The 3rd truth about
Noling is that Ohio won't allow his attorneys to DNA test a cigarette found at
the scene, evidence, the defense suggests, which might determine who might have
killed the couple.
The 4th truth is unfolding now. Last Tuesday, for about half an hour, the
Supreme Court of Ohio heard oral argument in the Noling case. His lawyers are
asking the justices to recognize a broad application of a new state law
designed to encourage DNA testing in cases like these. Prosecutors, claiming
the butt is irrelevant, are asking the justices to preclude any further testing
on the cigarette. Here is the video of the January 8th argument. If you have
the time, it's well worth watching as a prime example of how infrequently
appellate judges and lawyers talk about justice in our criminal justice system:
Nathan Chesley
To understand the argument over the cigarette, to understand why Noling's
attorneys would try so hard to have it tested after all these years, you first
have to appreciate the role in this case of a man named Nathan Chesley. To
Noling and his lawyers, Chesley is a hero. He never met Noling, and certainly
didn't know him back in 1990, but Chesley claims today that it wasn't Noling
who murdered the Hartigs. Instead, Chesley asserts, a vicious man named Daniel
Wilson, a convicted murderer who was executed in 2009, likely killed the
Hartigs when he burglarized their home.
Chesley and Wilson had the same foster mother -- now dead -- and the two men
crossed paths at the foster home in which they both at one time had lived. In
2010, Chesley swore in an affidavit: "I am sure Wilson was breaking into
places, including private homes, and stealing money in 1990. I also believe
Wilson could have committed the Hartig murders; it sounds like something Wilson
would do. In fact, I think it is likely that he did it." Chesley made a similar
statement in 1990, a statement which found its way into a police file, which in
turn didn't find its way to Noling until 13 years after he went to death row.
Ohio officials have little but scorn for Chesley and his story. Victor V.
Vigluicci, arguing for the state, told the Ohio justices last Tuesday that
Wilson was ruled out quickly by the police and that Chesley's story has since
been found to be "incredible and unreliable." But even though Chesley's
testimony is crucial to Noling's argument, and even though Vigluicci suggested
that Ohio's lower courts have evaluated the reliability and credibility of
Chesley's story, the truth is that Chesley has never testified in court in this
case. He was ready to do so -- he showed up at court for a hearing in 2011 --
but the trial court refused to hear his story.
The Law
So we have witness Chesley, who is willing to be cross-examined under oath
about his statement that Wilson murdered the Hartigs. And we have a cigarette
butt, which may or may not definitely link Wilson to the driveway of the
Hartig's house. And we have a new state law that is designed to encourage DNA
testing of such evidence when it might determine -- or rather re-determine --
the outcome of a case. And we have former state officials with significant
experience in law and justice, men like Governor Ted Strickland and former
Attorney General Richard Cordray, who believe the cigarette should be tested.
We have all that and today we have no Chesley hearing, and no cigarette
testing, and a man still on death row whose co-defendants all have recanted and
whose prosecutors didn't share exculpatory evidence. This is so because Ohio
prosecutors, and so far Ohio's judges, have elevated form over substance. The
bulk of last week's argument wasn't about how to figure out whose DNA is on
that butt. It was over the procedural question of whether Noling is entitled to
have the cigarette tested now even though it was tested once before -- using
old scientific methods -- long before his current attorneys learned of
Chesley's accusation against Wilson.
Today, Ohio argues cheekily that Noling is not entitled to test the cigarette
because the prior test ruled him out -- and was thus "definitive" and thus
triggered an exception to the statutory rule permitting DNA testing. There is
no conceivable result from a new cigarette test, Ohio's lawyers argue, which
could ever exonerate Noling since even if Wilson's DNA is found on the butt it
wouldn't prove that he murdered the Hartigs. In other words, after dubiously
convicting and sentencing Noling based largely on circumstantial evidence,
prosecutors want to bar Noling's attorneys from trying to exonerate him based
on circumstantial evidence.
The Colloquy
The oral argument above is notable for many reasons. You'll notice, for
example, how the state lawyer was able to take advantage of the fact that
Noling's attorney left herself barely any time for rebuttal. You'll notice,
too, how hard Ohio officials are trying to limit DNA testing by relying upon a
narrow interpretation of a statute designed to broaden the scope of DNA testing
in cases where there are serious questions about the accuracy and the
reliability of a conviction and death sentence. I was struck particularly by
this passage about 2/3 of the way through argument:
Chief Justice O'Connor: Say we get to the point where there is the question of
whether we order the testing and you are saying it is not outcome determinative
because they cannot use, if they do determine that Mr. Wilson's DNA matches
that of the cigarette butt, that's merely one fact that would be introduced at
a new trial which is not... are you downplaying the significance of that?
Vigluicci: Well, certainly, it's certainly not outcome determinative if
somebody flicked a cigarette out of their car as they passed the Hartigs'
house. Has nothing to do with the crime scene.
Justice: Well don't they have coupled with his foster brother's statement that
-- and I didn't read verbatim what the foster brother said -- but there is, I
don't know whether it was "I wouldn't be surprised if Wilson had done this" or
and "Wilson told me he had killed this couple" I'm not exactly sure but anyway
that's information to be interjected to a new trial if we get to that point.
Vigluicci: 2 things on that, Justice. First of all, the court's already heard
the new trial motion based on the new evidence.
Justice: Not the DNA evidence, based on the foster brother's discussion.
Vigluicci: Right. And rejected that as being incredible and unreliable. The
federal district court has also reviewed that "new evidence" in habeas and
rejected it. Secondly, I really object to the appellant here claiming that this
alternative suspect has confessed in some way. That isn't the case at all. He's
someone the police ruled out very early in this investigation and then 20 years
later they produce this affidavit from a foster child who happened to live in
the same foster home, not at the same time, as Davis. And he says in his
affidavit that he could have committed the crime, it's something he would do. I
mean, how that relates to a confession...
Justice: So there is no confession, no discussion between Mr. Wilson and this
foster person.
Vigluicci: And it would be inadmissible hearsay of this Nathan Chesley anyway.
I mean, no way that is coming in at trial. This is speculation of the nth
degree and it's building hearsay upon speculation upon hearsay. There is no way
this is outcome determinative. ... And the trial court saw that when it
rejected both of these applications for subsequent DNA testing.
Call and Response
There is a lot going on in this exchange. First, it's disconcerting that, in a
capital case, one of the justices says she hasn't taken the time to "read
verbatim" Chesley's affidavit, which at this stage of the proceeding is
critical to the resolution of the case. It's impossible to evaluate whether the
testing of the cigarette butt could warrant a new trial for Noling -- could be,
as the law says, "outcome determinative" -- without also evaluating Chesley's
credibility. If the butt belongs to Wilson, and Chesley is a credible witness,
there would be more credible evidence against Wilson than there would be
against Noling.
It's also disconcerting, to say the least, how cavalier Vigluicci is with the
factual assertions he makes. As I mentioned above, Chesley's credibility has
never been found to be unreliable or incredible by any state court judge. In
fact, you could argue the opposite is true. In 2011, the same state trial judge
who refused to order the new DNA testing suggested that Chesley's 1990
statements, later found in police notes, were exculpatory. It's also inaccurate
to say that the federal courts have rejected Chesley's credibility. Even as it
expressed "concern" about this case, the 6th Circuit wouldn't give Noling a
substantive review of Chesley's claims.
Vigluicci offered up his own theory for why Wilson's cigarette might have found
its way to the Hartig's driveway. (Remember, there was no physical evidence
placing Noling there.) But what's more likely? That a murderer who burglarized
homes would leave a cigarette in the driveway of one of those homes or that he
would randomly flick a cigarette out of the window of a car as he randomly
drove by the house? Imagine how prosecutors would mock such a theory if it were
presented at trial by the defense. And imagine how critical the cigarette butt
would be to prosecutors if it were necessary to convict, as opposed to
exonerate, a capital defendant.
Postscript
"While we want to get to the truth as much as anyone else this isn't one of
those cases where DNA has some relevance," Vigluicci told the justices. And the
DNA has no relevance, Vigluicci asserts, because Chesley's story is
unbelievable. And Chesley's story is unbelievable, Ohio argues, even though no
judge has ever heard it. "Hearsay upon speculation upon hearsay," is how
Vigluicci described the defense case last week. But that's precisely what Ohio
itself is doing. If Vigluicci wanted to "get to the truth" he would have begged
the justices last Tuesday to schedule that DNA test and to subpoena Chesley for
a hearing.
The last word here goes to Regina Brett, a columnist for the Cleveland Plain
Dealer, who wrote an important piece in this case in March 2011. She wrote:
The police never interviewed Nathan. Prosecutors never interviewed Nathan. No
one ever asked Nathan one question. Defense attorneys say they never saw the
report.
Nathan, who is now 38, told me Dan kept two guns, a shotgun and a smaller gun.
The .25-caliber gun that was used to kill the Hartigs was never found.
Chances are good that if Noling got a new trial, he'd be a free man. 3 men who
testified that Noling committed the murders have since recanted. No physical
evidence connects Noling to the crime.
A cigarette butt found in the Hartigs' driveway ruled out Noling, but not
Wilson. Since Wilson's DNA is on file with the state, it could easily be
tested.
The problem is persuading prosecutors in Portage County to allow it.
"I wish they would have talked to me years ago," Nathan told me. "It would be a
travesty if they kill this guy. He is innocent."
"Dan told me he did it," he said. "It's that simple. I know it's not to the
court, but they're going to execute an innocent man. I don't have a dog in the
fight. I don't even know this guy Noling. I'd like to let him know that
somebody out there knows he didn't do this. I'd like to give him hope."
Nathan can't figure out why no one will hear him.
And that's the essential truth about Tyrone Noling's life that matters most
today.
(source: The Atlantic)
MONTANA:
Lawyers hope to renew Canadian's clemency appeal
The Montana pa-role board that recommended against clemency for death-row
Canadian Ronald Smith may be examined for being too tough on criminals.
A motion being introduced by the state's Republican Sen. Terry Murphy calls for
a review of the Montana Board of Pardons and Parole.
It could result in limitations on the board's powers or its eventual
elimination.
Murphy said a 2011 report by the board indicates that 72 % of inmates in
Montana were eligible for parole and 60 % of those were denied parole on their
first try.
"They have too much power," Murphy said in an interview with The Canadian
Press.
"A lot of non-violent offenders who qualify for parole are simply not receiving
their hearings and are not being paroled.
"I'm not sure why except it seems like there's a real desire to keep as many
people in the system as possible," he said.
"I think the parole board is just so extremely overcautious they don't want to
turn loose anybody who might conceivably make a serious crime later.
"It's costing the taxpayers millions of dollars."
Murphy said it's also disturbing the board has the power to add requirements on
prisoners who are paroled beyond the restrictions imposed by a judge during
sentencing.
The board gave short shrift to Smith's request for clemency, not even giving
reasons for why it recommended against it.
Smith, 55, has been on death row for 30 years for the 1982 murders of Thomas
Running Rabbit and Harvey Mad Man Jr.
His request for clemency has been inherited by new Montana Gov. Steve Bullock,
who was sworn in last week.
Smith's lawyer, Don Vernay, said the need for a review was highlighted prior to
the clemency hearing last year.
A report prepared by board staff, which recommended the 3-member board reject
clemency was leaked to The Canadian Press before the hearing was even held.
"Seems like the current board has come under criticism for their tough-on-crime
standards of operation," said Vernay.
"Look at what they did to us. The staff didn't do their jobs and told the board
what to do. There's a bunch of criteria that has to be met and when they issued
their ruling they didn't give any reasons."
Work is still going on behind the scenes by Smith's supporters.
Lawyers representing the prisoner hope to meet with Bullock as soon as possible
to renew Smith's appeal for clemency.
Ron Waterman, a lawyer with the American Civil Liberties Union that has filed a
civil action on behalf of Smith, said Bullock is familiar with the case because
he is the state's former attorney general.
But Waterman expects he'll take his
"What he might want to do is meet with the various constituencies that have
interests," he said.
"He might want to meet with the Smith family. I would think he would probably
want to talk to the Canadian consulate as they've been very involved.
"I would think that before he takes any action ... he would probably want to
pick up those pieces and get a sense from them on what to do and how to do it."
Waterman suggested it comes down to "whether the governor believes in
redemption and 2nd chances."
Vernay believes it's possible to make a compelling argument to convince Bullock
to do the "right thing." It's believed that the new governor, also a Democrat,
isn't an ardent supporter of the death penalty.
There have been 4 executions in Montana since 1945.
The Montana legislature will also have to deal - again - with legislation to
abolish the death penalty altogether.
(source: The Windsor Star)
UTAH:
Ogden man in shootout challenges death penalty law
Lawyers for the Ogden homeowner accused of gunning down a police officer during
a pot raid are challenging Utah's death-penalty law.
Weber County prosecutors have said they will seek the death penalty if Matthew
David Stewart is convicted of aggravated murder and other charges.
The defense lawyers filed a motion last week saying Utah's law is
unconstitutional because it leaves juries with no choice but the death penalty
in cases of aggravated murder.
In court papers, the lawyers refer to Stewart as a youthful defendant with no
criminal history who was under mental or emotional duress.
Stewart's family says the 38-year-old Army veteran was growing pot to ease his
anxiety and depression. Stewart told investigators he believed he was being
robbed when a narcotics task force broke into his house Jan. 4, 2011.
(source: Associated Press)
TENNESSEE:
Tenn. mum on search for new lethal injection drug
It's been 3 years since Tennessee put an inmate to death, and problems with
obtaining lethal injection drugs make it unlikely executions will resume
anytime soon.
The state's supply of sodium thiopental, 1 of 3 drugs used in lethal
injections, was turned over to the federal government in 2011 over questions
about how it was imported. The short supply of sodium thiopental in the U.S.
has led many states with the death penalty to seek out other drugs.
Arizona, Idaho and Ohio already have carried out executions using a single
drug, pentobarbital. However, Tennessee officials are staying tight-lipped
about their search for alternative drugs.
The Department of Correction spokeswoman said last week that no decision has
been made on revisions to Tennessee's current 3-drug method.
"The Department of Correction has been monitoring the steps being taken by
other states concerning implementation of lethal injection," department
spokeswoman Dorinda Carter said in a response to questions from The Associated
Press regarding the search for new drugs.
The department declined a request from the Associated Press to interview
Correction Commissioner Derrick Schofield.
He told The Tennessean this month that the state's lethal injection protocol is
a top priority and that he is pursuing alternative drugs. But he wouldn't say
which drugs are being considered or when a decision may be reached.
In addition to the shortage of sodium thiopental, records obtained by The
Associated Press through an open records request indicate that Tennessee has
also been unable to get pancuronium bromide, a strong muscle relaxant given to
the inmate before the final injection of potassium chloride, which stops the
heart.
A memo dated February 2012 stated that the pharmaceutical distributor Morris &
Dickson informed the state that pancuronium bromide was recalled in May 2010
and will not be reissued. Carter confirmed last week the state has no supplies
of either sodium thiopental or pancuronium bromide.
The FDA drug shortage list indicates that Hospira, which makes pancuronium
bromide, says the drug would be available in the 1st quarter of 2013.
This has essentially stalled any executions in Tennessee. The last inmate
executed by lethal injection in the state was Cecil Johnson, on Dec. 2, 2009,
and the Tennessee Attorney General???s office has not asked the state Supreme
Court to set an execution date since 2010. Tennessee has 83 inmates on death
row.
The attorney general won't pursue execution dates until officials are ready to
proceed with executions, said office spokeswoman Leigh Ann Apple Jones.
Death penalty experts say that whenever the state makes its decision, legal
challenges to the revised protocol are likely to occur.
The last major revision to the state's execution protocols came in 2007, when
then-Gov. Phil Bredesen issued an executive order to review the policies and
procedures and ordered a moratorium on executions. A committee was formed, a
public hearing was held and a detailed report was published on updates made to
the execution manuals.
But this time the state has declined to answer many questions about what
options they are considering, leaving defense attorneys and inmates largely in
the dark. Under state law, changes to the lethal injection method can be made
administratively without legislation. And there's no timetable for the state to
make a decision, said David Raybin, a Nashville attorney and former prosecutor
who helped write the Tennessee death penalty law more than 30 years ago.
Raybin said the state is likely being silent on the issue because officials are
being careful to avoid confusion or prompt legal challenges before they are
ready to defend them. He said correction officials likely will be consulting
with the attorney general's office about the drugs they are considering.
"The flip side of that is if they act precipitously then they will trigger
months if not years of litigation," Raybin said. "And that would delay things
as well."
He said choosing a drug whose legality has already been tested in court might
allow the state to move quickly toward resuming executions.
Some states have changed their lethal injection procedures to use
pentobarbital, a barbiturate that is most commonly used to euthanize animals
and treat seizures. And Missouri has switched its lethal injection method to a
single, fatal dose of propofol, the anesthetic blamed for Michael Jackson's
death, although officials have not yet carried out an execution using that
drug.
But both those drugs have their own supply issues and legal challenges as well,
said Megan McCracken, the Eighth Amendment Resource Counsel with the U.C.
Berkeley School of Law's Death Penalty Clinic.
Germany-based Fresenius Kabi USA is 1 of only 2 domestic suppliers of propofol,
and it is the only one currently distributing in the U.S. The company announced
last year that it won't sell propofol for use in U.S. executions.
McCracken said the use of propofol has been challenged in court because of the
pain associated with administering the drug.
Denmark-based Lundbeck Inc., which was once the only maker of pentobarbital in
the U.S., sold its rights to the drug to another manufacturer and said it never
intended its product to be used in executions. The company said a distribution
system meant to keep the drug out of the hands of prisons will remain in place.
McCracken said some states still use pentobarbital in executions, and at least
1 state - South Dakota - has indicated it may obtain that drug through a
compounding pharmacy.
Compounding pharmacies mix drugs to order for hospitals and clinics. But the
U.S. Food and Drug Administration is pushing for more regulation of these
facilities after a massive fungal meningitis outbreak last year that has been
linked to a Massachusetts compounding pharmacy.
"If this practice grows, I imagine we will see additional challenges because
the use of a compounding facility certainly raises a lot of questions,"
McCracken said.
(source: Associated Press)
USA (RHODE ISLAND):
U.S. Supreme Court Will Not Hear Appeal For Pleau
The United State Supreme Court has delivered a crucial blow to Govenor Lincoln
Chafee in his battle with the federal government over the case of Jason Wayne
Pleau.
In a decision handed down this morning, the Supreme Court declined a petition
for writs of certiorari filed by Chafee and the defendant Pleau, refusing to
consider the pair's challenge to a decision made by the First Circuit Court of
Appeals that would require Rhode Island to transfer Pleau over from state to
federal custody, where prosecutors will seek the death penalty.
Pleau is accused of murdering a Lincoln man outside of a Woonsocket bank in
2010 and had already agreed to serve a life sentence without parole under state
law.
Chafee, an opponent of the death penalty, sought to keep Pleau in state custody
but lost in a key decision back in May when the First Circuit Court of Appeals
decided, 3-2, to reject his argument that, under a federal law known as the
Interstate Agreement on Detainers (IAD), he had the legal right to refuse to
turn over Pleau.
That ruling overturned an earlier panel decision that had supported Chafee.
The IAD governs the transfer of inmates among states and with the federal
government. The technical legal question in the case concerns whether the
United States can independently use another legal mechanism - a writ of habeas
corpus - to obtain custody of Pleau despite the Governor's invocation of the
IAD to refuse to transfer a prisoner from state to federal custody.
At the heart of the matter is the federal government's likelihood to seek the
death penalty for Pleau.
Rhode Island abolished the death penalty in 1852 and has not carried out an
execution since that time. For that reason, Chafee has sought to keep Pleau out
of federal custody.
"After reviewing the 1st Circuit Court of Appeals en banc opinion, and weighing
the state's considerable interests, I have decided to appeal the 1st Circuit's
decision," Chafee said last year. "Given the close vote of the full court,
which demonstrates a genuine split in the interpretation of the law, the State
of Rhode Island must seek to protect both the strong states' rights issues at
stake and the legitimacy of its longstanding public policy against the death
penalty. My in-house legal staff has been handling this case and will continue
to do so as part of their routine duties at no additional cost to the taxpayers
of Rhode Island."
Chafee has called the case a matter of states??? rights but, with this setback,
it appears the federal trial against Pleau will soon move forward.
"I am obviously pleased with the decision of the United States Supreme Court
not to review the First Circuit's entirely correct ruling requiring the State
of Rhode Island to surrender custody of Mr. Pleau to the United States for
trial in federal court," United States Attorney Peter F. Neronha said today.
"As we have been since September of 2010, we are prepared to move ahead with
this case immediately and without delay."
(source: golocalprov.com)
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