What’s On Their Minds: Permissibility of Disparate Treatment for Capital Defendants in Postconviction Review of Applications for DNA Testing. State v. Noling.

“A non-capital defendant is afforded an appellate review that is not discretionary. The appellate court has to do that. In a capital case, they (capital defendants) get a bite at the apple of appellate review, at the supreme court, but it’s discretionary—that is the crux of the disparate treatment.” Chief Justice O’Connor, to the prosecutor.

Since the Supreme Court of Ohio slows down in the summer, I want to go back and pick up the case of State v. Noling, argued May 31, 2016, when I was on vacation. The issue in the case is whether R.C.2953.73(E)(1), which provides only discretionary review in the Supreme Court of Ohio to capital defendants for the denial of post-conviction applications for DNA testing, is unconstitutional. Non-capital defendants are afforded mandatory appellate review of such denials in the intermediate courts of appeals. I’ve long been interested in this case because of the involvement of the University of Cincinnati College of Law’s Ohio Innocence Project. Readers should be forewarned–this is technical and complicated.

Case Background

On April 5, 1990, Cora and Bearnhardt Hartig, both 81, were murdered in their kitchen. Tyrone Lee Noling was convicted of those murders, and sentenced to death. His conviction and sentence were affirmed on direct appeal in State v. Noling, 2002-Ohio-7044.

Postconviction Proceedings

In September of 2008, Noling filed a postconviction application for testing of a cigarette butt found in the driveway of the Hartigs’ home. An earlier DNA test, conducted before the trial, had excluded Noling as the person who had smoked the cigarette. So the trial court denied Noling’s petition. On December 28, 2010, Noling filed a second application for DNA testing based on newly discovered evidence he claimed identified other suspects in the murder. In support of his application, Noling argued that advances in technology could positively identify, rather than simply exclude, the DNA on the cigarette butt. The trial court denied this application. First concluding that it had jurisdiction to hear this issue on direct appeal, the Supreme Court of Ohio reversed the decision of the trial court, finding that the relevant statutes for postconviction DNA re-testing required a more liberal application than that which was given by the trial court. The high court found that the trial court had “failed to consider Noling’s application in the context of the new statutory requirements— whether there is a possibility of discovering new biological material that is potentially from the perpetrator that the prior DNA test may have failed to discover.” The case was sent back to the trial court for reconsideration. Read an analysis of this decision (Noling II)here.


On remand, the trial court scheduled a hearing to determine if 1) prior DNA testing had been definitive and 2) if advanced postconviction DNA testing would be outcome determinative. In addition to the cigarette butt, Noling also moved to include testing from shell casings recovered from the scene and ring boxes recovered from inside the Hartigs’ home. However, the trial court did not have the shell casings run through the National Integrated Ballistic Information Network (NIBIN), citing an absence of statutory authority to do so. Further disagreements between Noling and the State continued regarding the testing of the butt, shell casings, and ring boxes. Specifically, Noling objected to the Ohio Bureau of Criminal Investigation (BCI) testing the shell casings and ring boxes, as he claimed BCI lacked the advanced techniques necessary to obtain reliable DNA results with such fragile pieces of evidence. The Ohio Innocence Project, on behalf of Noling, offered to front the costs for an advanced, independent lab to run the tests.

Meanwhile, BCI reported that the cigarette butt did not match any DNA sample in the FBI’s database. BCI then visually reviewed the shell casings and ring boxes and ultimately concluded that contamination rendered those items scientifically unsuitable for testing. The following day, the trial court dismissed Noling’s application for further DNA testing. Noling timely appealed to the Eleventh District Court of Appeals , which unanimously found that the court lacked jurisdiction to review the trial court’s decision and dismissed the appeal. This appeal to the Supreme Court of Ohio followed.

Key Statutes and Precedent

R.C.2953.73(E)(1) (“If the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender may seek leave of the supreme court to appeal the rejection to the supreme court. Courts of appeals do not have jurisdiction to review any rejection if the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing.”)

R.C.2953.73(E)(2) (“If the offender was not sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the rejection is a final appealable order, and the offender may appeal it to the court of appeals of the district in which is located that court of common pleas.”)

R.C. 2953.02 (“In a capital case in which a sentence of death is imposed for an offense committed…the judgment or final order may be appealed from the trial court directly to the supreme court as a matter of right.”)

State v. Steffen, 70 Ohio St. 3d 399 (1993) (“A postconviction proceeding is not an appeal of a criminal conviction, but, rather, a collateral civil attack on the judgment.”)

State v. Smith, 80 Ohio St. 3d 89 (1997) (Upholding the constitutionality of direct appeal of capital cases from the trial court to the Supreme Court of Ohio. No violation of due process or equal protection in this statutory scheme.)

State v. Davis 2011-Ohio-5028 (Intermediate appellate courts have jurisdiction to review postconviction matters in death penalty cases.)

State v. Noling,2013-Ohio-1764. (“Noling II”) (R.C. 2953.73(E)(1), which grants exclusive jurisdiction to the Supreme Court of Ohio to review rejections of applications for DNA testing in cases in which the death penalty is imposed, is constitutional. Syllabus paragraph one.)

What is this case all about?

This appeal is an equal protection and due process challenge to R.C.2953.73(E)(1). In Noling II the court upheld the constitutionality of this statute, but not on these grounds, because the parties did not raise those challenges. Noling now argues that (E)(1) is unconstitutional on equal protection and due process grounds, because noncapital defendants get a mandatory review of the denial of DNA testing, while capital defendants do not (albeit at different levels of the appellate process).

R.C.2953.73(E)(2) provides mandatory review to noncapital defendants by the intermediate appellate courts for postconviction denial of DNA testing. The intermediate courts of appeals have no jurisdiction to hear such appeals for capital defendants. R.C. 2953.73 (E)(1) provides only discretionary review by the Supreme Court for the postconviction denial of DNA testing.

At Oral Argument

Judge Carla Moore of the Ninth Appellate District sat for the recusing Justice O’Neill, who heard one of the appeals in this case as an appellate judge.

Arguing Counsel

Carrie Wood, Assistant State Public Defender, Office of Ohio Public Defender, Columbus, for Appellant Tyrone Noling

Victor V. Vigluicci, Portage County Prosecuting Attorney, for Appellee State of Ohio

Noling’s Argument

The U.S. Supreme Court has said that once an appellate process is put in place, it must comport with both equal protection and due process. R.C. 2953.73(E)(1) does not.

R.C. 2953.73, Ohio’s postconviction DNA testing statute, was enacted to ensure postconviction access to DNA testing and to potentially identify wrongfully convicted people in Ohio. In order to ensure postconviction access to this DNA testing, the legislature provided noncapital defendants a mandatory merit review. That review has proved important, because in approximately 34% of appeals, the trial court’s decision has been reversed. But under R.C. 2953.73, an applicant who is sentenced to probation receives more protection accessing postconviction DNA testing than someone who is sentenced to death. Under the mandatory appellate merit review provided in (E)(2), non-capital defendants receive a review of individual errors in their particular case, while under (E)(1), someone who is sentenced to death can only ask this court to examine broad questions of law that have impact beyond that person’s case, and not individual errors that occurred in the case. So, the problem here is not the deprivation of the intermediate appellate review for capital defendants. It is the deprivation of a mandatory merit review of individual error.

There has been no merit or individualized review for the entirety of Noling’s application for postconviction DNA testing. In addition to the DNA testing, Noling also sought to have the shell casings from the murder weapon and ring boxes from the victims’ home run through the data base. He also sought the actual results from the testing from the cigarette butt—that was one of the additional propositions of law that only two justices from this court voted to take on jurisdictional review. So there are still a number of things that haven’t been reviewed by an appellate court for error in this case. Mandatory merit review is necessary in this case and for all other capital defendants. There is no rational basis for the distinction between the two types of appellate review. Mandatory merit review gives effect to the purpose of the statute; discretionary review does not.

There would not be any unreasonable delay in mandatory merit review in these cases. Postconviction DNA testing does not delay setting execution dates. It’s not a collateral attack on the conviction. It guarantees nothing except getting the testing.

State’s Argument

This is the third request for DNA testing from this defendant, and the state is back in the Supreme Court 27 years after the murder. In Noling II, the court found that the legislature can, and properly did, restrict appellate jurisdiction and review. No court, state or federal, has extended constitutional protections to post conviction relief for convicted felons. Noling is asking this court to take a tremendous leap and go where no court has gone before, extending constitutional protections to post conviction procedure. This legislation was crafted with due regard for the rational basis of expediting these appeals, of not permitting endless requests for DNA testing. This case is the poster child for that.

There are no constitutional rights implicated here. Capital defendants are not a suspect class. The Constitution says they are entitled to a fair trial and one direct appeal. They are not entitled to more due process or equal protection after the conviction. Only 9 capital defendants have sought DNA testing in the trial courts, and only 3 in 13 years have come to this court. After Noling II, where this court stated it had concurrent jurisdiction to hear these direct appeals, the court is not limited in those reviews to constitutional questions or issues of great public interest.

The people have spoken. Capital cases are to be expedited. The legislature had every right to draft this statute as it did. It could have afforded no appeal in these cases. And the legislature has the absolute right to treat capital and noncapital defendants differently. The court already said that was permissible in Smith.

How it Looks from the Bleachers

To Professor Emerita Bettman

I think a majority of the justices are ready to declare R.C. 2953.73 (E)(1) unconstitutional on equal protection grounds. Justices O’Donnell and French seem to be already there, as Justice O’Donnell wrote in the dissent in Noling II, in which Justice French joined. The votes for the appropriate remedy is less clear.

Ms. Wood repeatedly made the point that the merit review provided under the statute to non-capital defendants is different in kind from the discretionary review provided to capital defendants. Initially, Ms. Wood argued that the remedy she sought in this case would be to remove the portion of the statute that permits only discretionary review to the Supreme Court to capital defendants, and remand the case to the 11th district court of appeals for the individualized merit review which is provided under the statute to all noncapital defendants. That is also what Justices O’Donnell and French thought should be the remedy in the dissent in Noling II, because the intermediate appeals courts are for error correction, and the supreme court is not, so she should have both of their votes on this. But R.C.2953.73(E)(1) expressly states that courts of appeals have no jurisdiction to review denial of testing for capital defendants, and I doubt that there are enough votes to strike that, or the entirety of the statute.

The more likely remedy seems to be that which was floated by Justice Lanzinger (author of Noling II) and Chief Justice O’Connor—which would simply be to excise the words “seek leave of the Supreme Court to” in R.C.2953.73(E)(1). If that were done, that portion of the statute would read

“If the offender was sentenced to death for the offense for which the offender claims to be an eligible offender and is requesting DNA testing, the offender may appeal the rejection to the supreme court.” That change would also make the language parallel to the appellate rights given to noncapital defendants in R.C. 2953.73(E)(2). While expressing her concern with the word “may,” Ms. Wood agreed this remedy would be constitutionally adequate, as long as it was clear that the review at the supreme court level would be a full merit review, which the court would agree to in this case on all the proposed errors. So if it does go this route, the court should be clear that its review will include any individual errors, as is true in direct appeals from the death penalty.

Mr. Vigluicci really pushed back hard on this. The following exchanges occurred:

Chief Justice O’Connor:

“If the court does strike those words (“seek leave of the supreme court to…”) and then it becomes an automatic appeal provided the defendant does appeal to the Supreme Court, what’s the downside of doing that?”


“You’re infringing on the legislative function. “

The Chief:

“We do that with excising statutes, not frequently, but that’s our job sometimes.”


“But only when there is proof beyond a reasonable doubt that the legislature has overstepped its bounds and has created something that is unconstitutional. Otherwise this court would be legislating. The legislature as I said looked at this very carefully.”

The Chief:

“You say we are precluded from finding this unconstitutional based on our record in Smith, probably Davis, and our sister states across the country, Massachusetts, etc, and, you say, in Noling II?”

The Prosecutor:

“Yes. I’m saying this court would take a tremendous leap. When you made that excise you would have to say there were constitutional grounds to do so, that the legislature overstepped its authority as given by the people of the state of Ohio when it created these statutes as a result of the constitutional change, and that the state legislature in its deliberations, had somehow run afoul of the constitution—I don’t think that’s the case. I think they had every right. They could have afforded no appeal here.”

Justice Lanzinger:

“But isn’t that the point? The real issue is section 2, where you say for noncapital cases, anyone who has a rejection of a DNA request has the right to a merit appeal to the court of appeals. And so the question is why shouldn’t that be given in cases where we have the capital defendant?”

The Prosecutor:

“Because to do so you would have to find that the legislation runs afoul of the constitution—that there was an equal protection violation—there is not.”

Justice Lanzinger:

“What is the distinction? What is the rational distinction in this particular situation between the two?”

In the end, I think excising the words from the statute to create parity between the classes of appellants will prevail. As Chief Justice O’Connor said to Ms. Wood, striking the entire statute guarantees no certainty as to what the legislature might do next, while excising—clearly within the power of even “nonactivist” judges -would not. And the Chief—herself once a former prosecutor, was clearly troubled by “the reality that oftentimes this DNA testing has exonerated people on death row.”

At one point Justice Pfeifer suggested that even on discretionary review in these cases, once the case is in, the court looks at every possible error even if that isn’t required. But in this case, the two sides are still arguing, not just about the DNA on the cigarette butt, but also on the possibility of testing on shell cases and the ring boxes, and the high court didn’t agree to review that here. Of course finality is important. But isn’t not being wrong in a death penalty case even more important?