TO REINVEST THE CIRCUIT COURT WITH JURISDICTION IN ORDER TO
CONSIDER PETITION FOR WRIT OF ERROR CORAM NOBIS PETITION
Rosenzweig, for appellant.
Rutledge, Att'y Gen., by: Brad Newman, Ass't
Att'y Gen., for appellee.
K. WOOD, Associate Justice
Strawhacker was convicted of rape in 1990. At his trial, FBI
hair-comparison expert Michael Malone testified that hairs
recovered from the crime scene were indistinguishable from
Strawhacker's hairs. In 1996, after allegations were
raised concerning the accuracy of FBI hair examiners'
expert testimony, the Department of Justice established a
Task Force to review all of their hair-comparison testimony.
The Department sent letters to the relevant parties that it
had concluded that thirteen examiners' work failed to
meet professional standards. In 2014, the Department notified
Strawhacker that Malone was one of the thirteen who gave
invalid testimony. Strawhacker filed a pro se petition with
this court for leave to proceed in the circuit court with a
petition for writ of error corum nobis. Strawhacker also
requested appointment of counsel, which we granted.
Strawhacker v. State, 2015 Ark. 263 (per curiam). We
now grant Strawhacker's petition to reinvest jurisdiction
with the circuit court to consider whether to grant
Facts and Procedural History
August 1989, a female victim reported that she had been raped
and beaten in a ditch outside a nightclub in Fayetteville.
Then, according to the victim, her assailant took her to her
home in a trailer park, placed her in her bed, and joined her
there. The assailant stayed the night, but when the victim
woke up the next morning, he was gone. The victim called the
police, but was unable to give a visual description of her
assailant because she had been so badly beaten her vision was
police developed Strawhacker as a suspect and obtained a
court order to conduct a voice-identification lineup. The
victim identified Strawhacker's voice as that of her
assailant. In addition to this voice identification, the
State presented witnesses at trial who testified that
Strawhacker had been at the nightclub near the time of the
assault and, later the next morning, was seen leaving the
victim's trailer park wearing muddy jeans and with a
bloody shirt his hand.
at trial, FBI supervisory special agent Michael Malone was
admitted as an expert in the field of hair and fibers. Malone
testified that he had worked for the FBI for nineteen years.
During that time, Malone received training in hair and fiber
analysis; worked on over 3500 cases; examined hair from over
10, 000 people; lectured and trained others in the field of
hair comparison; published articles; and testified as an
expert over 350 times. In the present case, Malone stated
that he examined pubic hairs recovered from Strawhacker's
jeans and from the victim's bed sheets. Malone told the
jury that the pubic hair found on Strawhacker's jeans was
"absolutely indistinguishable" from the
victim's public-hair sample. Malone also testified that
the pubic hair found on the victim's bed "exhibited
exactly the same characteristics" as Strawhacker's
hair sample and was "absolutely indistinguishable"
and "consistent with coming from Mr. Strawhacker."
times, Malone equivocated on the reliability of
hair-comparison testimony. For instance, he stated that hair
comparison was not as exact as other forms of identification:
"Now, I don't want to mislead you. It's not a
fingerprint. In other words, nobody can get a hair to the
point that they can say 'This hair came from that person
and nobody else in the world.'" But Malone also
testified that it would be "highly unlikely" that
the pubic hair came from anyone other than the victim, and
the chances that another person would have the same
characteristics was "extremely remote." Malone even
stated that the probability of a false identification was one
in five thousand. The jury convicted Strawhacker, and he was
sentenced to life in prison for rape and 30 years for
October 2014, the Department of Justice sent Strawhacker a
letter informing him that Michael Malone's testimony
"may have failed to meet professional standards."
The letter also stated that "the prosecutor in your
case(s) has advised the Department of Justice that Michael
Malone's work was material to your conviction." In
an earlier letter sent in September 2014, the Department
informed the prosecuting attorney that Malone's
"testimony regarding microscopic hair comparison
analysis contain[ed] erroneous statements." The
Department further stated that Malone had "overstated
the conclusions that may appropriately be drawn from a
positive association." According to the Department,
Malone overstated the evidence in the following three ways,
all of which exceeded the limits of science: (1) testifying
that the hair could be associated with a single person to the
exclusion of all others; (2) assigning a statistical weight
or probability that the hair originated from a particular
source; and (3) citing his past experience in the laboratory
making positive hair identifications. The Department said it would
waive any statute-of-limitations or procedural-default
defenses should a claimant file a petition for habeas corpus
under 28 U.S.C. § 2255. The State has not made similar
concessions. As a result of the Department's disclosure,
Strawhacker has filed a petition to reinvest jurisdiction
with the circuit court to consider a petition for writ of
error coram nobis.
Writ of Error Coram Nobis
writ of error coram nobis is an extraordinary writ, known
more for its denial than its approval. Echols v.
State, 360 Ark. 332, 201 S.W.3d 890 (2005). The function
of the writ of error coram nobis is to secure relief from a
judgment rendered while there existed some fact that would
have prevented its rendition if it had been known to the
trial court and which, through no negligence or fault of the
defendant, was not brought forward before rendition of
judgment. Id. The writ is allowed only under
compelling circumstances to achieve justice and to address
errors of the most fundamental nature. Sanders v.
State, 374 Ark. 70, 285 S.W.3d 630 (2008) "In
simple terms, this writ is a legal procedure to fill a gap in
the legal system-to provide relief that was not available at
trial because a fact exists which was not known at that time
and relief is not available on appeal because it is not in
the record." Penn v. State, 282 Ark. 571,
573-74, 670 S.W.2d 426, 428 (1984).
held that a writ of error coram nobis is available to address
certain errors that are found in one of four categories: (1)
insanity at the time of trial; (2) a coerced guilty plea; (3)
material evidence withheld by the prosecutor [a
Brady violation]; or (4) a third-party confession to
the crime during the time between conviction and appeal.
Howard v. State, 2012 Ark. 177, 403 S.W.3d 38. We
will grant permission for a petitioner to proceed in the
trial court with a petition for writ of error coram nobis
only when it appears that the proposed attack on the judgment
is meritorious. Id. In ...