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Death row inmates granted direct DNA testing through Ohio Supreme Court under new rule

ASSOCIATED PRESS

Death row inmates granted direct DNA testing through Ohio Supreme Court under new rule

New rule allows inmates to appeal lower courts decision

COLUMBUS—Inmates already on death row may appeal a lower court’s decision rejecting access to DNA testing of evidence directly to the Ohio Supreme Court under a new rule adopted today.

The move follows the Supreme Court’s 4-3 decision in December that struck down as unconstitutional part of a state law restricting such appeals in cases involving those already convicted of murder and sentenced to death.

Under the new rule, if a Lucas County Common Pleas judge denies an application for DNA testing of evidence after a death sentence has already been imposed, an appeal of that decision would skip the Sixth District Court of Appeals and be fast-tracked to the Supreme Court.

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Tyrone Noling was convicted of killing Bearnhardt and Cora Hartiga of Portage County in 1990 and the Supreme Court has already upheld both the conviction and sentence. He has insisted he is innocent of the murders and has filed numerous appeals over the years.

He requested DNA testing of a cigarette butt that was found in the Hartigs’ driveway near the entrance to the kitchen wherere the murders occurred. Neither Hartig smoked.

His request was denied by a Portage judge.

The Supreme Court already directly hears appeals of death sentences, bypassing local courts of appeal. Today’s rule change will add direct post-conviction appeals of DNA testing denials to that. The change will take effect on June 1.

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The court struck the state DNA testing restriction because it unconstitutionally treated death and non-death-row cases differently and results in “arbitrary and capricious application” of the death penalty. It removed the provisions from the law it found objectionable but left the rest.

Writing for the majority in December in the Noling case, Chief Justice Maureen O’Connor dismissed the argument of Ohio Attorney General Mike DeWine’s office that the law helps to ensure that the “final judgments of its courts are expeditiously enforced.”

“Are we to take this to mean that expeditious enforcement of the death penalty is the guiding factor and goal?” she asked. “Are we to value speed over certainty? Of all cases that cry out for certainty, it is cases that result in the extinguishing of a human life. If, however, the generic expeditious enforcement is the basis of the state’s argument, even a cursory investigation reveals that this rationale is faulty. Indeed, expedience is subverted by the statutory scheme.”

Joining her in the majority were Justices Paul Pfeifer and Judith Ann Lanzinger, both of whom have since retired, and Judge Carla Moore, from the Akron-based 9th District Appeals Court, who presided in place William O’Neill.

Justices Terrence O’Donnell, Sharon Kennedy, and Judith French dissented.

Justice O’Donnell agreed that the language in question was unconstitutional, but he objected to the majority’s decision to simply delete the words it didn’t like to get a different result.

“The majority, by selectively striking words from within this provision—deleting only the phrase ‘seek leave of the supreme court to’—has not severed an invalid statutory provision but rather has engaged in judicially legislating from the bench, because it transforms a capital offender’s discretionary appeal into a direct appeal to this court,” he wrote.

First Published May 22, 2017, 3:38 p.m.

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