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Pitts v. State

Supreme Court of Arkansas

October 20, 2016



          John Wesley Hall, for appellant.

          Leslie Rutledge, Att'y Gen., by: David R. Raupp, Ass't Att'y Gen., for appellee.

          Seth Miller, The Innocence Network; Steven R. Morrison, NACDL Amicus Curiae Committee; Amelia R.V. Maxfield, National Association of Criminal Defense Lawyers, Russell L. Hirschhorn, Patrick Rieder, and Martine Seiden, Proskauer Rose, LLP, pro hac vice, for amicus curiae, the Innocence Network and National Association of Criminal Defense Lawyers.

          J. Blake Hendrix, Fuqua Campbell, PA., on behalf of attorneys for amicus curiae.

          JOSEPHINE LINKER HART, Associate Justice

         This is a companion case to Strawhacker v. State, 2016 Ark. 348. As in Strawhacker, Eugene Issac Pitts's petition for postconviction relief arises from repudiated trial testimony of FBI lab technician Michael Malone, a forensic hair analyst.

         Pitts was convicted of capital felony murder for the slaying of Dr. Bernard Jones, committed in the course of a kidnapping. On June 29, 1981, Pitts's conviction was affirmed on direct appeal. Pitts v. State, 273 Ark. 220, 617 S.W.2d 849 (1981). Pitts now asks this court to reinvest jurisdiction in the trial court so that it may consider a writ of error coram nobis, writ of audita querela, or other relief based on newly discovered evidence. The newly discovered evidence at issue is the Department of Justice's (DOJ) repudiation of the evidence provided by Malone at Pitts's trial. We grant Pitts's petition to reinvest jurisdiction in the trial court to pursue a writ of error coram nobis or other relief.

         In rejecting a challenge to the sufficiency of the evidence in Pitts's direct appeal, this court summarized the evidence presented at trial as follows:

[T]he State's proof established Pitts's motive for murdering Dr. Jones and his various threats to do so. Mrs. Jones's statements to the police and her testimony at the trial had minor inconsistencies, but there was no variance so great as to weaken her positive identification of Pitts as the intruder in her home.[1] The FBI testimony about the hair definitely puts Pitts in contact with Dr. Jones. Pitts left the Jones house in [Dr. Jones's] Land Cruiser with Dr. Jones and the stolen articles. The body and articles were in the vehicle the next morning. Mrs. Stanley's timing of the arrival of the Land Cruiser was contradicted by Mark Musgrave and his mother. Only about three hours after the murder Pitts was unable to account for his earlier whereabouts.

Pitts, 273 Ark. at 226, 617 S.W.2d at 852. It also summarized Malone's testimony:

Dr. Jones's clothing was sent to the FBI laboratory for examination. An expert witness, Mike Malone, testified that he found several Caucasian hairs and a brown Negroid hair on the clothing. The Negroid hair, when examined with a microscope, had 20 different characteristics. Sample specimens of Pitts's hair had exactly the same 20 characteristics. Malone testified that as part of a test to qualify as an FBI examiner he was given 50 hairs from 50 different persons. He was also given another 50 hairs from the same persons, but they were all mixed up. He passed the test by matching all 50 pairs correctly, with no mistakes. He said that in his nine years' experience the only way he had seen hairs match the way they did in this instance was when in fact they came from the same person. He testified that his identification was not absolutely positive, like a fingerprint. The jury, however, could certainly have relied upon it in returning a verdict of guilty.

Id. at 224--25, 617 S.W.2d at 851--52.

         Following his conviction and direct appeal, Pitts vigorously pursued his state and federal court remedies but failed to get relief.[2] Pitts's last effort was in 2011, when he filed a habeas petition pursuant to Arkansas Code Annotated section 16-112-201 et seq., alleging actual innocence. Pursuant to the statute, DNA testing was performed on the only hair with a follicle collected from the crime scene and the victim's body. The nuclear DNA test that was performed was inconclusive. Pitts moved to have mitochondrial DNA testing performed on other hairs, but that request was denied by the circuit court, and this court affirmed. Pitts v. State, 2011 Ark. 322 (per curiam). The sample ...

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