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January 31, 2012

"Is Ohio Keeping Another Innocent Man on Death Row?"

The question in the title of this post is the headline of this potent new piece from The Atlantic and authored by Andrew Cohen.  Here is how it begins: 

Last year, the execution of Troy Davis captured most of the attention, and generated most of the debate, on the topic of capital punishment in America. Davis was put to death by lethal injection in Georgia three quarters of the way through a year that saw a general decline in support for (and implementation of) the death penalty. This year, just a few weeks in, there's an early candidate for such a spotlight: a death row inmate in Ohio whose case raises many of the same questions about fair trials and justice that surrounded the Davis case.

In fact, you could argue that the capital murder case against Tyrone Noling is even weaker than the one against Troy Davis. And you could argue that the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else. In 1996, Noling was convicted of murdering Cora and Bearnhardt Hartig, an elderly couple, at their home in 1990. At first, though, there was no physical evidence linking Noling to the crime. Not a gun. Not any blood. Not any money or loot. And at first, there were no witnesses against him, either.

Frustrated prosecutors then gave the case to an investigator named Ron Craig and everything changed. Noling was indicted in 1992, but prosecutors soon had to drop the charges against him after he passed a polygraph case -- and after his co-defendant at the time changed his mind and refused to incriminate him. Just so we are straight, in 1992, there was no physical evidence linking Noling to the crime, he had passed a lie detector test, and witnesses were already turning on the investigator.

But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs. Noling's jury deliberated for about day before returning guilty verdicts. Noling was quickly sentenced to death. The state's website duly notes that Noling arrived at its death row on February 21, 1996. He has maintained his innocence ever since.

January 31, 2012 at 12:34 PM | Permalink

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Comments

How much money are death penalty supporters willing to spend in furtherance of the effort to put Mr. Noling to death? Does the question of whether Mr. Noling may be innocent factor into the cost/benefit analysis of death penalty supporters? Do death penalty supporters engage in a cost/benefit analysis? Is there no upper limit to the amount of $ death penalty supporters are willing to spend to enforce a judgment of death? If it was necessary to spend $ 3 trillion to put Mr. Noling to death, regardless of his guilt or innocence, surely even death penalty supporters would say we can't afford to pay that much. Wouldn't they?

Posted by: Calif. Capital Defense Counsel | Jan 31, 2012 1:21:04 PM

“Another Innocent Man” “the execution of Troy Davis “ is akin to:
“Another Stand-up Comedian” “the career of Lord Laurence Olivier”.

“the capital punishment regime in Ohio is just as arbitrary and capricious as it is most anywhere else”

Arbitrary . . . because not everyone who has earned the penalty undergoes it?
Capricious . . . how?

If Noling is innocent, 50 years of history predict that he will be saved from execution. Sorry about your drive-by lie, but Troy Davis was not innocent. Or do you favor the approach of V. Lenin: -+-"A lie told often enough becomes the truth."-+-?

Are you insinuating that Ohio is “keeping [some other] innocent man on death row”? Who?

Great title, Cohen. Keeping it sober and just.

Posted by: Adamakis | Jan 31, 2012 1:22:57 PM

CCDC, we humans do not put a price on justice. That's for your ilk. I expect you would not say there should be limits on spending to "prove his innocence...."

Then again, if he's "as innocent" as Davis was, he should've been executed long ago. 106 pages of Federal District Court factfinding make that abundantly clear.

It would cost far less, if frivolous criminal appeals lawyers would pay attention to the law instead of trying to rewrite it (along with history), and intentionally doing everything possible to drive up costs to everyone.

Posted by: Rich Mantei | Jan 31, 2012 2:59:56 PM

No CCDC, I would not spend $3TT to get people to death. So what?

But I will spend the money to ensure that a penalty authorized by the constitution and the people is not thwarted by judges who flout the law. Protecting the people's right to govern themselves is important.

Posted by: federalist | Jan 31, 2012 3:25:16 PM

hmm

"But a few years later -- under threat from Craig, they now say -- a few folks stepped forward to testify against Noling. They placed him at the crime scene and they testified that he had confessed to killing the Hartigs."

can anyone say BLACKMAIL and EXTORTION!


sorry the fact that any DA can think someone can pick up a case YEARS later and suddenly discover all these so-called EYEWITNESSES is the hight of stupidity!

sorry if i'm in th process of KILLING people why in the hell do you think i'd leave anyone in range to SEE ME ALIVE?

Posted by: rodsmith | Jan 31, 2012 4:00:00 PM

Mr. Mantei -- In the case of the West Memphis 3, was it "frivolous" for Damien Echols' appellate attorneys to fight to overturn his conviction for the 20 years that he spent on death row for a crime he did not commit? Or, was it frivolous for Arkansas prosecutors and courts to rely on witchcraft and junk science to keep him in a cage?

Federalist -- 1) If you were the omnipotent king of America, how much is the maximum amount of $ you would allow to be spent to obtain and carry out a judgment of death? 2) Before SCOTUS's decision in Loving v. Virginia, the people of the Commonwealth banned interracial marriage. Should SCOTUS have protected the right of the people to govern themselves in that barbaric manner?

Posted by: Calif. Capital Defense Counsel | Jan 31, 2012 5:04:03 PM

Well, I am not king of America, and I don;t want to be. How much would I spend--don't know--it's a silly question--i guess if I were king of America, i'd wave my scepter and murderers would be zapped. With respect to Loving v. Va., well interracial marriage is inconsistent with the EPC, whereas the DP is expressly authorized by the constitution. In other words, apples to oranges.

CCDC, I don't do this for a living; you obviously do. Why do I (rhetorically) kick your teeth in whenever you want to tangle with me? You tried to make legal arguments about notifying the jury on the cost issue and got smoked. Now you ask silly questions. How about evaluating the morality of yanking the rug out from under family members of murder victims? You never got around to that one.

Posted by: federalist | Jan 31, 2012 6:26:10 PM

'I am not king of America'

When I was a boy I was told that anybody could become President; I'm
beginning to believe it. ~Clarence Darrow

Posted by: tuesday | Jan 31, 2012 7:58:04 PM

"interracial marriage is inconsistent with the EPC"

Is that what you actually meant to say or was that a typo?

Posted by: Anon | Jan 31, 2012 9:12:40 PM

Read the district court's 172-page opinion in Davis. As the court concluded after a painstaking and minute examination, Davis was guilty. After that opinion, he got zip votes in the circuit court and zip votes for cert on the SCOTUS (which had previously given him extraordinary relief).

My guess is that not a one of you abolitionists has read the opinion. Why would you? To you, facts don't matter (although you demand -- correctly but hypocritically, that they should for everyone else).

You can't make Davis innocent simply by typing the word "innocent" again and again in a sentence also including his name.

Facts count.

Give it a rest.

Posted by: Bill Otis | Jan 31, 2012 11:43:06 PM

Bill -- two mistakes.

1) The district judge didn't find that "Davis was guilty." Court did not apply the a "de novo" factfinding (i.e., the way a jury would have, under a beyond a reasonable doubt standard), nor was it reviewed under a less lenient standard applied to constitutional violations--which federal courts routinely find not met-- "reasonable probability the result would have been different [defined as a probability] sufficient to undermine confidence in the outcome," but it was very difficult standard, rooted in Schlup v. Delo, asking whether the evidence "clearly establishes [Davis'] innocence." This is a HEAVY presumption in the state's favor which could only have been overcome by something to the effect of DNA. No supporter of Troy Davis said, nor could say, that the evidence "clearly establishe[d]" Davis's innocence. A court's standard of review is absolutely no trifle. Cf. Cavazos v. Smith (S. Ct. 2011) (AEDPA standard of review for state court decisions requires upholding a murder conviction even though "doubts about Smith's guilt are understandable," and counseling Smith to attempt to get clemency.)

2. There was no circuit court review, the case went directly to the Supreme Court because the hearing was ordered by the Supreme Court. And of course, that no stay was later ordered was predictable since the Supreme Court would never change this difficult standard for case that, like Davis's, do not involve an underlying constitutional error.

Posted by: Alex | Feb 1, 2012 1:56:01 AM

Alex --

Neither is a mistake. I did not purport to quote the district court's finding. But a fair reading of its opinion leaves no other conclusion but that it regarded Davis as guilty, as would anyone who examines the facts recited.

It's true that the circuit did not again hear the case -- but that means that my statement that Davis got no votes there is correct (albeit only a truism).

Truisms don't convey much information -- you're right about that -- but they are not mistakes either.

Finally, while in many instances I might agree that the standard of review is "no trifle," it doesn't bear the weight you want to put on it.

Just as OJ either did it or he didn't, Troy Davis either did it or he didn't. Finespun legal language is the refuge of solipsism.

The real world truth is that both OJ and Davis did it. The Atlantic's referring to Noling as "another" innocent man, along with Davis, is just so much baloney. Davis was not innocent, as every impartial body to have reviewed his case has either found directly or unambiguously implied.

Posted by: Bill Otis | Feb 1, 2012 2:45:55 AM

DP proponents love to bring up Davis, but they never seem to want to talk about Anthony Graves, to name just one. I would point out that for DP proponents, Graves was just as guilty as Davis, until it was discovered that he was not.

Here, the OP happened to be about a man named Tyrone Noling.

Posted by: C | Feb 1, 2012 7:46:21 AM

Hey Bill, I'm happy to admit I don't know the first thing about the Troy Davis case. Yet, I'm against the death penalty, and I believe, based almost exclusively on the fact that no system is infallible, and particularly no GOVERNMENT system (a sentiment that both you and federalist should be able to get behind), that some innocent has been executed. And that some innocents are on death row. And that, based on my experience, many innocents are incarcerated. And that even more guilty are incarcerated for far too long.

So argue with that.

Oh, and my office (not me personally, I don't do DP work) has been working on Noling's case for years, and virtually *everybody* believes he's innocent. And I can assure you that that is not often the case, all your rhetoric notwithstanding.

Posted by: Ohio PD | Feb 1, 2012 8:56:03 AM

Anon, yes that was a typo.

No one would care about Noling if he weren't under a sentence of death. While I agree that is not an argument in favor of the death penalty--i do believe that the death penalty has prompted the justice system to be more receptive to innocence claims. And I welcome that.

Posted by: federalist | Feb 1, 2012 10:11:30 AM

Ohio PD:
Get to know the Davis case. Get to know the Willingham & Coleman cases.

“based almost exclusively on the fact that no system is infallible…
some innocent has been executed.”

Check your logic. Check history. Was an innocent git executed in the 2000s, the 1990s, the 1980s, 1970s…?...Let us know.

re Davis:
“Upon full hearing, the District Court found an inconvenient truth: "Mr. Davis is not innocent."" (C&C 9/7/11)

“Against the thoroughly evidentiary conviction, Davis's team proffers that "some witnesses have recanted testimony that helped convict him" years & years later?

CHECK THIS OUT:
"Of the seven witnesses Davis' legal team say recanted their trial testimony, "only one is a meaningful, credible recantation." The value of this recantation -- given by a jailhouse snitch who testified Davis told him he killed MacPhail -- is diminished because it was already clear the witness testified falsely at trial, the judge said." {AJ-C 8/24/10)

< "Still, for 15 years nearly every news report of the Davis case continued to state, as if it were fact, that seven of nine eyewitnesses recanted. This without mentioning that the "recantations'' had been thoroughly discredited. No wonder doubt flourished." > {Prosecutor Spencer Lawton}

Posted by: Adamakis | Feb 1, 2012 12:06:34 PM

Ohio PD --

1. If fallibility should stay our hand, we might as well empty the prisons now, because that's the only way to insure that no innocent is imprisoned.

So should we do that? Empty the prisons to avoid injustice? Why not?

And no, the answer is not that the DP is irrevocable. First, the proposed alternative, LWOP, is, as many of your allies have pointed out, a form of a slow-motion DP, and the "innocent" defendant will die in jail. Second, even with ordinary prison sentences, the years an innocent person spends behind bars are ALSO irrevocable. No one gets the time tacked back on to the end of their lives. Time runs in only one direction.

So why not empty the prisons? Is there any other certain way to avoid injustice?

2. "... all your rhetoric notwithstanding."

You must have been reading someone else's "rhetoric." I have consistently taken the view that defense counsel almost always knows full well that the client is guilty; often he knows this better than the DA's office. Defense counsel is also the one person in the system who gets lied to more often than the prosecutor, and most of them know that too.

Posted by: Bill Otis | Feb 1, 2012 12:40:31 PM

None of the death penalty supporters who post here will say how much money they believe is the maximum that should be spent to obtain and enforce a death judgment. None of them will say if they think $50 million is too much. None of them will say whether they are willing to wreck a state's economy in order to obtain and enforce a death judgment.

What thoughts go through the minds of death penalty supporters when they see the numbers of innocents exonerated by DNA evidence, which are compiled on Web sites such as the Innocence Network? What thoughts go through the minds of death penalty supporters when they see cases like the case of Damien Echols, who spent about two decades on death row in Arkansas for a crime he obviously did not commit.

Is the execution of one innocent person a price death penalty supporters are willing to pay in order to preserve the death penalty? Are they will to volunteer their daughter, their brother, etc., as the person who has to be executed for a crime he/she did not commit?

Is "federalist" sane?

Posted by: Calif. Capital Defense Counsel | Feb 1, 2012 5:06:04 PM

CCDC: I don't see any state's economies being wrecked to enforce a death judgment, and $50MM is a pittance to defend the democratic process.

As for Damian Echols, my guess is that had Mr. Echols not gotten the DP, he'd be rotting in prison. In any event, I think support for the death penalty is not mutually exclusive with support for scrutiny of convictions that warrant them. I've said so here that I support efforts to correct genuine miscarriages of justice. I don't think Echols is guilty either. And I've also noted in here that the "incorrect" application of a death sentence is far far less of an injustice than the incorrect conviction of an innocent man for a misdemeanor. So how about this, Mr. CCDC, let's get rid of the death penalty "jurisprudence" and its attendant costs and let states have mandatory DP for some crimes and totally discretionary DP for others, and we can take those cost savings and plow them into more resources for the guilt/innocence phase. You support a ton of extra-constitutional nonsense in the death phase--well, that's the use of scarce resources, and those scarce resources could better fund guilt/innocence defense. Sounds to me like you're policy position sacrifices the innocent to save the guilty from execution. Where's the morality in that?

The point is, CCDC, we can play all sorts of rhetorical games.

You asked what goes through my mind with respect to Echols and his two co-defendants. I am happy they were released, and I hope they lead productive and happy lives. And I still believe in capital punishment. I believe it saves lives, and I believe that society gains something intangible when it has the moral courage to carry out the judgment that some crimes are so horrible that the only just thing to do is to kill the perpetrator.

You see CCDC--I answer the questions put to me. You pick and choose.

Posted by: federalist | Feb 1, 2012 8:00:25 PM

CCDC --

What thoughts go through the heads of the cheering section for Timothy McVeigh when they see that you continuously demand answers to your questions while refusing to answer the questions asked of you?

That you're a hypocrite?

That you're sufficiently aware to understand you don't have an answer you can defend?

Let's try one more just for instance. Would you volunteer your daughter to be the prison guard who gets knifed to death by a previously convicted killer who could have been sentenced to death and executed but wasn't because people like you secured LWOP instead?

Yes or no.

Posted by: Bill Otis | Feb 1, 2012 8:46:34 PM

Bill & Federalist:

How much is the most you would be willing to take from the taxpayers to finance a single execution? $3 billion, $750 million, $80 million? Give me a number.

Bill, I was unaware that McVeigh had a cheering section, and I hope my children don't wind up working in the corrections industry.

What question of yours do you mistakenly believe that I have refused to answer?

Posted by: Calif. Capital Defense Counsel | Feb 1, 2012 9:37:30 PM


CCDC --

"How much is the most you would be willing to take from the taxpayers to finance a single execution?"

Not one dime, since, unlike your clients, it is not my practice to "take" money from anyone. The taxpayers get to decide for themselves for what they want to pay and how much. Don't complain to me because you've failed to convince them.

"I was unaware that McVeigh had a cheering section."

You were plenty aware of it, since you were sitting in the middle. And no (with the silly but on this board necessary disclaimer), that doesn't mean you were in favor of the murders. It means you were in favor of McVeigh's beating the rap in the sentencing phase. And you were, weren't you?

"I hope my children don't wind up working in the corrections industry."

In this you are well advised, since that industry is extremely dangerous because of people like your clients.

But you haven't answered the question. The question was whether you would be willing to volunteer your daughter to be the prison guard who gets knifed to death by a previously convicted killer who could have been sentenced to death and executed but wasn't because people like you secured LWOP instead?

Would you?

"What question of yours do you mistakenly believe that I have refused to answer?"

If the death penalty cost less than LWOP, and the prosecutor wanted to argue that to the jury, would you object?


Posted by: Bill Otis | Feb 1, 2012 11:36:39 PM

No - I would not "volunteer" my children to be knifed to death by anyone.

Yes - I would object to a question like that which you've posed, because it is premised on fiction.

Are you depressed that your party is going to nominate Romney? Yikes! He may actually be worse than Obama and Bush.

Posted by: Calif. Capital Defense Counsel | Feb 2, 2012 9:56:37 AM

hmm

"Are you depressed that your party is going to nominate Romney? Yikes! He may actually be worse than Obama and Bush."

i'm going to have to give ccdc this one bill

never though i would EVER lean toward obama till i saw what the republicans were offering up as a replacment.

then of course it hit me. the republicans DON'T WANT TO WIN!

they now the collapese that started in 2008 has not HIT THE BOTTOM YET! they don't want any more credit for it!

Posted by: rodsmith | Feb 2, 2012 12:32:16 PM

CCDC --

"No - I would not 'volunteer' my children to be knifed to death by anyone."

But SOMEONE ELSE'S child got knifed to death by a previously convicted killer who, had he been executed for his first capital murder, wouldn't have been around to do it. Why should public policy regard someone's child as less worthy of the only sure protection we can give than your child is?

It's a dead-flat certainty that this will happen again with another previously convicted killer serving LWOP -- because people like you campaign for continuing the mortal danger such inmates pose rather than bringing it to an end.

"Yes - I would object to a question like that which you've posed, because it is premised on fiction."

Nonsense. You'd object to the question because you know full well that, when the stakes are as high as they are in a capital case, it's the justice of the punishment, not its economics, that the jury should consider.

"Are you depressed that your party is going to nominate Romney? Yikes! He may actually be worse than Obama and Bush."

No, I am not depressed. My preference would have been Rubio or Christie or Paul Ryan or Thune or Mitch Daniels. Maybe next time. Romney at least knows something about business, and avoids Obama's hateful, divisive attacks on people whose "sin" is to be financially successful. Romney also shows at least a glimmer of awareness that Obama's policy of "engaging" Iran is a feckless failure, whose main result has been to allow Iran more time to build the atomic bomb to finish Hitler's work (before coming after us).


Posted by: Bill Otis | Feb 2, 2012 2:34:19 PM

'Romney also shows at least a glimmer of awareness that Obama's policy of "engaging" Iran is a feckless failure, whose main result has been to allow Iran more time to build the atomic bomb to finish Hitler's work (before coming after us).'

Sounds similar to the foreign policy approach of the second Bush to invade Iraq. Commit to the action on incomplete intelligence, speculate and provide proof for justification later, whether real or fabricated.

Posted by: comment | Feb 2, 2012 4:52:24 PM

Since at least 1991, "serious" people in government, the intelligence services, the think tanks, and the MSM have been predicting that Iran would obtain the bomb within 2 to 5 years. They have been wrong every single time.

Notwithstanding these repeated public mistakes, these very same "serious" people are trotted out again and again to make the same claim. Do we have amnesia?

I suppose they'll get it right eventually. But in the meantime, I'm sick and tired of being told that I should sleep with a light on because there is an ayatollah hiding under by bed.

We're not a nation of cowards.

Posted by: Fred | Feb 2, 2012 7:02:24 PM

Fred --

I'm sorry. You're right. Complacency is indeed the best policy.

Posted by: Bill Otis | Feb 2, 2012 8:03:28 PM

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