TO REINVEST THE CIRCUIT COURT WITH JURISDICTION IN ORDER TO
CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS PETITION
Wesley Hall, for appellant.
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.
Blake Hendrix, Fuqua Campbell, PA., on behalf of
attorneys for amicus curiae.
JOSEPHINE LINKER HART, Associate Justice
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.
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.
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. 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
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.
his conviction and direct appeal, Pitts vigorously pursued
his state and federal court remedies but failed to get
relief. 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 ...