They Could Just Choose To Do the Right Thing on Their Own

Really, it would have been a hell of a lot simpler if they'd just said to do it.

"It" is testing the DNA.  "They" is the esteemed Supreme Court of Ohio.  The subject is Tyrone Noling, about whom I've written before.

The short version for those who don't recall and aren't inclined to follow the link to catch up:  Noling's on death row for a double murder he claims he didn't commit.  The evidence against Noling has mostly evaporated, but still he's on death row and they still want to kill him.  DNA from a cigarette butt found in the driveway of the house where the killings happened was tested.  It didn't come from Noling or his co-defendant, which proves nothing.  Noling thinks, though, that it might have DNA from a guy named Daniel Wilson.  Wilson was executed in 2009 for another killing, and there's lots of reason to think he may have done this one.  If the cigarette butt has his DNA, and given the other evidence, that's pretty compelling evidence that Wilson was the killer and Noling was not.

Got that?  Good.

The prosecutors, of course, oppose the DNA testing.  They've been opposing it for years.  They just want to get on with the execution.  There's no point, they say.  We know it isn't Noling, so who cares if it belongs to Wilson who allegedly confessed?  Noling was convicted.  Convicted is better than confessed.  Anyway, there's a technical, statutory argument against the testing.  A trial court bought that technical argument.  DNA testing had been previously done and proved nothing so Noling cannot ask again.  So sayeth the law.

Except, no.  The law doesn't sayeth that.  It once did, but no longer.  So sayeth, this morning, the Ohio Supreme Court.  If the DNA testing could point to the actual bad guy, courts can order more testing.  In this case it could.  The trial court applied the wrong law.

OK, that's cool.  So let's just test the fucking DNA and see what happens, right?

Dreamer.  You haven't been paying attention.  Remember how this post began?  Here, I'll copy the first sentence.

Really, it would have been a hell of a lot simpler if they'd just said to do it.

"Would have been" are the key words here.  Instead of ordering the testing, the court ordered the trial court to decide if the testing would be "definitive."  If so, the trial court should order the testing.  If not, it'll be OK to get on with the business of killing Noling.

Which means, of course, years more of litigation.  You know, argue before the trial court.  Wait for a decision.  Whoever loses, appeals.  More waiting.  Until, eventually, either they test the DNA on that Butt or they don't.  And if they do, and if it's Wilson's, Noling will fight and fight and eventually get out of prison, another Ohio death row exoneree.  And if it's not Wilson's DNA, then they can kill Noling with a conscience as clear as it will be.  Or, of course, they could not test it.  Because they'd rather not know, and then they wouldn't.

It's worth noting that, the Portage County prosecutor could just agree to the testing.  He won't.  Instead, he fights it tooth and nail, hammer and tongs, foot and hoof, pencil and paper, spider and fly, duke and duchess.  Because . . . . Damned if I know.

Regardless, Tyrone Noling remains on death row for a crime he may or may not have committed.  One of these days it seems likely the Ohio Supreme Court will suck it up and order the DNA testing.  Or maybe not.  And if they do order it, either it will go a long way toward showing Noling innocent, or it won't be meaningful at all.  Which could all have been discovered several years ago, but will instead wait several more years.  Cause why not.

At the end of an extraordinary proceeding, a court of inquiry as it's known, Ken Anderson, formerly the District Attorney of Williamson County, Texas and now a judge in that county, was criminally charged with Criminal Contempt of Court, Tampering with Evidence, and Tampering with Government Records in relation to his prosecution of Michael Morton.  Anderson's hiding evidence and lying about it led to Morton's conviction and his 25 years on death row for a crime he did not commit.  Anderson concedes that he had a legal duty, a constitutional obligation to give the defense exculpatory evidence.  He didn't fulfill that duty, though he says it was the system's fault, not his.

And there was this, from the Findings of Fact and Conclusions of Law issued by Judge Louis Sturns:

Additionally, as Mr. Anderson explained during the Court of Inquiry, although Brady requires prosecutors to release exculpatory evidence to the defense, as an attorney and fonner prosecutor, he does not believe in the release of such evidence if it may result in freeing an individual that he believes is guilty.

Really, these guys could just suck it up and do the right thing.  You know - Anderson could have obeyed the law and his duty.  The prosecutor in Portage County could just test the fucking DNA.

And, of course, the Supreme Court of Ohio could have saved everyone a repeat trip there in a year or so.

Nah.  What's the point?  Morton got exonerated off death row.  Noling might.  The system clearly works just fine.  All those years?  Piffle.  Cry babies.