Last January, my University of Cincinnati College of Law colleague Carrie Wood, then with the Ohio Innocence project, (now with the Ohio Public Defender’s office) argued to the Supreme Court of Ohio that a second application for post conviction DNA testing filed by death row inmate Tyrone Noling under a new statute with more liberal acceptance criteria should not be rejected solely because he had received  a previous DNA test on the same material he sought to have tested, namely a cigarette butt found in the driveway of the victims’ house.  Under the first test, Noling’s DNA was excluded from the cigarette butt. Newer DNA technology can do more than exclude—it can provide a match.

Through documents obtained by Noling’s lawyers in a public documents request, the name of Daniel Wilson surfaced as a possible alternative suspect. Wilson lived nearby, and had a history of home invasion and of victimizing the elderly. Noling’s attorneys also learned from police notes that Wilson’s foster brother, Nathan Chesley, claimed in 1990 that “his brother” committed the Hartig murders.

In May of 2013, in State v. Noling,  2013-Ohio-1764, the Supreme Court of Ohio agreed with Noling’s argument, and remanded the case back to the trial court to apply the definition of “definitive DNA test” set forth in R.C. 2953.71(U), and to apply the more liberal criteria set forth in R.C. 2953.74 .  You can read the analysis of the merit decision here.

On December 19, 2013, Summit Count Court of Common Pleas Judge John Enlow ordered new DNA testing of the cigarette butt. He ordered the test to be performed by the Ohio Bureau of Criminal Investigation (“BCI”).  Judge Enlow also ordered BCI to evaluate shell casings and ring boxes and provide a report as to the quality and quantity of DNA on these items.

Noling had argued for the test and evaluations to be done by Orchid Cellmark,  described by Ms. Wood as “one of the oldest and most experienced DNA labs in the country,” and one with the most sophisticated equipment.  Noling’s lawyers submitted an expert affidavit in support of the request for Cellmark, and the Ohio Innocence Project has offered to pay for the more experienced lab at no cost to the state.

Any positive results from the BCI testing of the cigarette butt will be sent to the FBI lab for comparison to DNA profiles of known criminals in the data bank known as CODIS (Combined DNA Index System). Daniel Wilson has since been executed for another murder, but his DNA profile remains in the CODIS data bank.

The new test could take months to complete