Tuesday, May 31, 2016
State of Ohio v. Tyrone L. Noling, Case no. 2014-1377
Portage County Court of Common Pleas
State of Ohio v. Christopher L. Anderson, Case no. 2015-1107
Seventh District Court of Appeals (Mahoning County)
State of Ohio v. Dominic Jackson, Case no. 2015-1137
First District Court of Appeals (Hamilton County)
Are Capital Defendants’ Constitutional Rights Denied by State Law Governing DNA Post-Conviction Appeals?
State of Ohio v. Tyrone L. Noling, Case no. 2014-1377
Portage County Court of Common Pleas
ISSUE: Does R.C. 2953.73(E)(1) violate both the Eighth and Fourteenth Amendments of the U.S. Constitution because it discriminates between capital and non-capital criminal defendants, fails to provide appellate review, and results in the arbitrary and capricious application of the death penalty?
BACKGROUND:
Bearnhardt and Cora Hartig were found shot to death in their Atwater home on April 7, 1990. Around that time, police arrested five individuals, including Tyrone Noling, for robberies in Alliance, which is about 10 miles away from Atwater. Noling and Gary St. Clair pled guilty to the Alliance robberies and were sentenced to prison.
In 1992, investigators questioned those involved in the Alliance robberies about the Hartig murders. St. Clair, Butch Wolcott, and Joseph Dalesandro implicated Noling in the crimes. St. Clair then recanted his statement before and at Noling’s trial in 1996. Noling was convicted and sentenced to death. Wolcott and Dalesandro later provided statements that they had been pressured by police to incriminate Noling.
Appeals Ensue
In December 2002, the Ohio Supreme Court upheld Noling’s conviction and death sentence in his direct appeal. Since his conviction, Noling also has filed applications for further DNA testing of evidence from the crime scene. The evidence includes a cigarette butt found in the Hartigs’ driveway, shell casings found in their house, and ring boxes from a bedroom drawer. The gun used in the murders has never been located, and the original DNA test results from the cigarette butt didn’t match Noling or his codefendants.
Given advances in DNA technology, the legislature changed the law to allow additional DNA tests in certain circumstances. Noling filed his second application for post-conviction DNA testing, pointing to evidence of other suspects in the murders. The trial court denied the application in March 2011.
On appeal, the Ohio Supreme Court returned the case to the trial court to decide whether earlier DNA testing barred his new request and, if not, whether more DNA testing would be “outcome determinative.” The Court explained that the relevant DNA statutes allow testing to try to positively identify the source of DNA evidence. The Court also concluded that R.C. 2953.73(E), the statute governing which courts have jurisdiction over the DNA post-conviction appeals of capital and non-capital defendants, was constitutional, though the Court noted that due process and equal protection claims weren’t raised in the appeal and therefore weren’t addressed in the decision.
Trial Court Approves Additional Testing
In December 2013, the trial court ordered testing by the Ohio Bureau of Criminal Investigation (BCI) of the cigarette butt and evaluation of whether there was enough biological material on the shell casings and the ring boxes to enable testing.
The DNA on the cigarette butt didn’t match anyone in the FBI’s national database, BCI reported, and that finding eliminated one of the alternative suspects Noling had identified. BCI also determined the shell casings and ring boxes weren’t suitable for DNA testing.
Noling appealed to the Ohio Supreme Court, challenging the statutory requirement that he appeal an unfavorable trial court ruling on a DNA post-conviction application directly to the Supreme Court. The Court accepted the case.
Law Discriminates Between Capital and Non-Capital Defendants, Noling Asserts
Under the Fourteenth Amendment to the U.S. Constitution, R.C. 2953.73(E)(1) denies equal protection and due process rights to capital defendants, Noling argues. The statute treats those sentenced to death differently than those offenders without a death sentence. Specifically, he explains, non-capital offenders are entitled to an appeal with the appropriate county’s court of appeals, while a capital offender only may appeal directly to the Ohio Supreme Court. Thus, non-capital offenders have two tiers of appellate review available to them for post-conviction DNA appeals while capital offenders have only one. The Court then may choose to accept or reject the capital offender’s case and, if the Court rejects it, he or she has been denied the right to appeal, Noling asserts.
Noling also contends that the possibility of error correction by an intermediate appeals court is eliminated by the law because the Ohio Supreme Court addresses only constitutional questions and those cases of public or great general interest.
“[The statute] is discriminatory, arbitrary, and a violation of Noling’s constitutional right to equal protection of the laws” and “[t]he disparate treatment of death-sentenced persons is based solely on the arbitrary difference in sentence,” according to the brief filed with the Court.
The law also infringes on his due process rights, Noling maintains, because it gives non-capital offenders additional levels of review and more possibility for relief. “Therefore, non-capital defendants receive more due process, more reliable decisions, and more extensive review than capital defendants,” he states. Yet those sentenced to death deserve more, rather than less, due process because of the severity of capital punishment, he adds, citing a 1976 U.S. Supreme Court case.
By limiting his meaningful appellate review to ensure that death isn’t imposed “arbitrarily, capriciously, or irrationally,” the statute violates the Eighth Amendment’s prohibition against cruel and unusual punishment, he maintains. He asks the Court to sever all of R.C. 2953.73(E)(1) along with other parts of the division to provide the same appellate review process to both capital and non-capital offenders.
No Constitutional Right to DNA Testing or Appeals Exists, State Maintains
The Portage County prosecutor counters the statute is constitutional in giving the Supreme Court exclusive jurisdiction over DNA post-conviction appeals from those sentenced to death.
The prosecutor maintains that states aren’t required to grant appeals when a trial court rejects an application for post-conviction DNA testing. No fundamental right is at issue here, and capital defendants aren’t considered a suspect class like race or national origin, the prosecutor asserts, so Noling’s equal protection claim is reviewed on whether the statute is rationally related to a government purpose. R.C. 2953.73(E)(1) is rationally connected to the goal of timely enforcement of courts’ final decisions, the prosecutor argues. He notes the Ohio Supreme Court has pointed to the importance of expeditiously handling appeals from non-capital defendants in prison versus the problem of offenders sentenced to death at times using delay tactics to prolong their appeals process.
On the due process question, the prosecutor quotes a 1995 U.S. Supreme Court ruling, which stated, “Due process does not require a [s]tate to provide appellate process at all.” He argues Ohio had no constitutional responsibility to create a law for post-conviction DNA testing or to offer an appeals process from a trial court’s ruling in these cases. The severity of the death penalty has been accounted for through “heightened procedures” implemented at the trial and sentencing phases of capital cases, and nothing more is required, the prosecutor notes.
He also disputes that the law runs contrary to the Eighth Amendment. In the prosecutor’s view, Noling wants to expand the delineated and limited protections of the Eighth Amendment in capital cases. According to the prosecutor, the U.S. Supreme Court has held that states must narrowly define who is subject to the death penalty and that courts must be able to consider mitigating factors. No further extension of Eighth Amendment protections are needed or required, the prosecutor asserts.
All the evidence in this case that can be tested has been tested, and Noling’s appeals process, ongoing for more than a decade, should come to a close, the prosecutor concludes.
Additional Filings
An amicus curiae brief supporting the Portage County prosecutor’s position has been submitted by Ohio Attorney General.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Portage County Prosecutor’s Office: Pamela Holder, 330.297.3850
Representing Tyrone L. Noling: Mark Godsey, 513.477.5668
Would Sixth Trial of Austintown Man Accused of Murder Violate His Due Process Rights?
State of Ohio v. Christopher L. Anderson, Case no. 2015-1107
Seventh District Court of Appeals (Mahoning County)
ISSUE: Do the due process clauses of the U.S. and Ohio constitutions prohibit the state from making repeated attempts over many years to convict a person?
BACKGROUND:
In February 2014, the Ohio Supreme Court sent an appeal from Christopher Anderson of Austintown back to the Seventh District Court of Appeals to consider his arguments against the indictment that could lead to his sixth trial for a 2002 murder. The Seventh District reviewed the matter and, in 2015, agreed with the trial court’s decision to overrule Anderson’s request to dismiss the case, permitting the trial to proceed.
Before the latest trial could begin, Anderson appealed the Seventh District’s decision back to the Supreme Court, which agreed to consider the issue whether his due process rights have been violated by multiple trials. Anderson has been held in jail since 2002.
Woman Strangled, Numerous Trials Follow
Amber Zurcher was found strangled to death in June 2002 in her Austintown apartment after a night out with friends. Anderson and two of Zurcher’s friends were the last to leave her residence in the early morning hours. Anderson was later arrested and indicted for Zurcher’s murder.
His first trial in 2003 ended in a mistrial because of undue prejudice caused by the testimony of a witness and his probation officer. In his second trial, testimony barred in the first trial was permitted, and Anderson was convicted of murder. However, on appeal, the Seventh District reversed the conviction, concluding that the testimony of Anderson’s alleged previous bad acts shouldn’t have been allowed.
The prosecutor again filed criminal charges against Anderson. In the third trial in December 2008, the jury was deadlocked, and the court declared a mistrial. The fourth trial resulted in another mistrial after defense counsel fell asleep during jury selection. When a new jury wasn’t able to reach a verdict in his fifth trial in 2010, the court declared another mistrial.
Once his sixth trial date was set in 2011, Anderson filed a motion to dismiss the case. The current appeal stems from this request.
Accused Focuses on Lack of Fairness with So Many Trials
Anderson argues indicted citizens have the right to go through a trial in a process that is fair, and a sixth trial would be unfair in his case. Except for one conviction later overturned, he notes he has never been lawfully convicted of this murder because the state has been unable to secure a verdict. He is presumed innocent, and he asserts the state repeatedly hasn’t proven its case beyond a reasonable doubt.
Nor, he maintains, does the state have any new evidence to offer in another trial. He writes in the brief to the Court that he “has been deprived of his liberty without due process of law” given that he has been held since 2002. He mentions his family is shouldering the burden of paying for legal representation and other expenses connected to his case.
“The question of whether the proceedings are no longer fair does not rest solely on a mechanical application that involves counting the number of mistrials that have occurred, or how serious are the charges, or the votes of jurors (which in any event we do not know in this case), or any other single factor,” the brief states. “The totality of circumstances is good enough for many other thorny legal and constitutional questions. There is no reason why it cannot be so here. This is scarcely a case where the government has been denied a fair opportunity to try to convict the [a]ppellant beyond a reasonable doubt.”
Anderson describes the “wearing down” he has endured in preparing for multiple trials as a violation of his constitutional rights. In asking the Court to order the trial court to dismiss his case, he argues his constitutional right to due process “guarantee[s] justice without denial or delay.”
Prosecutor Maintains Several Factors Allow Another Trial
Citing a U.S. Supreme Court decision, the Mahoning County prosecutor explains that a defendant isn’t entitled to be set free just because a trial ends without a final judgment. If a jury is deadlocked or a court declares a mistrial, double jeopardy protections don’t bar a retrial, the prosecutor notes. He contends that when a jury can’t agree, both the state and the defendant still have a right to a resolution of the case through a verdict.
In reviewing whether multiple trials violate a specific defendant’s due process rights, courts within Ohio and in other states have analyzed various factors with no uniform approach, the prosecutor points out. In his view, the Supreme Court should weigh the same factors considered by the Seventh District in this case when reviewing the due process claim.
Though the Seventh District noted Anderson’s years in jail are troublesome, it concluded no undue delays have occurred in prosecuting him, the state has committed no misconduct, and the process has in part ensured fair trials for him. The appeals court also ruled the number of trials wasn’t “egregious” or “unduly onerous.” In support of allowing the state to proceed with another trial and rejecting this due process challenge, the prosecutor points to the seriousness of the murder charge, the professional conduct and diligence of the lawyers on both sides in the prior trials, and the evidence in the record.
“[T]he evidence linking [d]efendant to the murder victim is strong, which leads credence that ample evidence exists to convince twelve jurors of [d]efendant’s guilt beyond a reasonable doubt,” according to the prosecutor’s brief.
In addition, the prosecutor concludes Anderson has shown no evidence that he has suffered prejudice beyond his incarceration.
Attorney General Files Brief, Will Argue
The Ohio Attorney General has submitted an amicus curiae brief supporting the Mahoning County prosecutor’s position. The attorney general contends Anderson’s due process claim is misplaced. Instead, a review of whether Anderson’s retrial would violate double jeopardy is the proper challenge and, under that framework, Anderson’s appeal fails, the attorney general maintains. The attorney general concludes that the retrials have protected, rather than infringed on, Anderson’s due process rights.
The Court has granted the request of the prosecutor and the attorney general to divide the prosecutor’s 15 minutes of oral argument. The prosecutor will have 10 minutes to argue, and the attorney general will have five minutes to present his position.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Christopher L. Anderson: John Juhasz, 330.758.7700
Representing the Mahoning County Prosecutor’s Office: Ralph Rivera, 330.740.2330
Does Offender Have Right to Speak at Community Control Violation Hearing?
State of Ohio v. Dominic Jackson, Case no. 2015-1137
First District Court of Appeals (Hamilton County)
ISSUE: Does the right of allocution apply to hearings addressing community control violations?
BACKGROUND:
Dominic Jackson pled guilty in September 2012 to receiving stolen property, and the trial court sentenced him to two years of community control instead of prison. The court informed him that if he didn’t meet the requirements of community control, he would be sentenced to 18 months in prison.
Jackson didn’t report to his probation officer three times and also failed to pay court costs and probation fees. At a June 2014 hearing for his violations, the trial court judge initially said Jackson would be held for 60 days to “get his act together” and enroll in a GED program, which was required earlier as part of his community control sanctions. After an exchange with Jackson, though, the judge criticized Jackson’s attitude, sighs, and eye rolling and ultimately imposed the 18-month prison term. When Jackson continued to talk, the judge told him to be quiet.
Jackson appealed to the First District Court of Appeals, arguing the trial court was required to let him make an oral statement at the violation hearing before imposing a sentence. The First District agreed that Jackson had a right to allocution at the hearing.
The Hamilton County prosecutor appealed to the Ohio Supreme Court, which agreed to review the issue.
Prosecutor Argues Violation Hearing Not Same as Sentencing
Both sides discuss the Ohio Supreme Court’s 2004 decision in State v. Fraley. In that case, the trial court didn’t tell the defendant at sentencing the specific prison term that would be imposed for a community control violation. The Supreme Court described the hearing held after the community control violation as a “second sentencing hearing.” The prosecutor states the First District misinterpreted this language to mean that all community control violation hearings are considered new sentencing hearings, and that statutes governing sentencing hearings give a defendant the right to allocution.
The Hamilton County prosecutor explains that when a trial court fails to inform a defendant at sentencing of the specific prison term to be imposed if community control is violated, that part of the sentence is void and can be corrected at another sentencing hearing.
However, Jackson was properly informed at his 2012 sentencing hearing he would be sent to prison for 18 months if he violated the terms of community control. The prosecutor maintains that the later 2014 hearing wasn’t a sentencing hearing but only a community control violation hearing. The violation hearing was limited and controlled by the original sentencing hearing, and state law doesn’t give an offender the right to speak at a violation hearing, the prosecutor asserts. The court is merely reinstating an already decided sentence, he argues.
Defendants Should Have Opportunity to Speak, Jackson Asserts
In his brief to the Court, Jackson describes the First District’s ruling requiring allocution as “accurate, fair, and practical.” In his view, Fraley determined that community control violation hearings are second or subsequent sentencing hearings, and all sentencing hearings have certain requirements, including one that offenders have the right to allocution. He maintains the prosecutor’s view of Fraley is too narrow.
If the prosecutor is correct, however, then those defendants with partially void sentences because they weren’t properly notified of the potential prison term would receive a right to allocution at their violation hearings, while defendants properly sentenced wouldn’t be given the same right, Jackson asserts. This outcome, he argues, creates two classes of defendants and is impractical.
Jackson explains that a trial court still has extensive sentencing discretion at a community control violation hearing, such as reinstating community control, imposing other sanctions, or sentencing the offender to the appropriate prison term. Because the trial court has to decide among these choices for the community control violation, allocution serves a critical function, he contends.
“The imposition of sentence following revocation of community control should give rise to a defendant’s right to speak on his or her own behalf and ability to present additional information in mitigation which can aid the sentencing court in its decision as to the proper disposition,” he writes.
Public Defender Files Amicus Brief
An amicus curiae brief supporting Jackson has been submitted by the Ohio Public Defender’s Office. The brief argues, “The State of Ohio is asking this Court to silence a defendant in the moments preceding a court’s decision to deprive that defendant of his liberty.”
Also pointing to the trial court’s discretion in deciding the final sentence to implement at a community control violation hearing, the public defender notes there are no guarantees a judge will recall the defendant’s allocution at the original sentencing hearing and properly consider that statement. At such an important time, the defendant should be given the opportunity to speak, the public defender concludes.
- Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the Cincinnati Bar Association: Richard Goldberg, 513.321.2662
Representing Dominic Jackson: Timothy Bicknell, 513.919.9203
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