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                SUPREME COURT OF ARKANSAS
                                        No.   CR-80-40

EUGENE ISSAC PITTS                                 Opinion Delivered   October 20, 2016
                              PETITIONER
                                                   PETITION TO REINVEST THE
V.                                                 CIRCUIT COURT WITH
                                                   JURISDICTION IN ORDER TO
STATE OF ARKANSAS                                  CONSIDER PETITION FOR WRIT
                                                   OF ERROR CORAM NOBIS
                            RESPONDENT
                                                   PETITION GRANTED.


                       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:
                                    Cite as 2016 Ark. 345

       [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



       1
      Although the intruder wore a mask, Mrs. Jones identified him as Pitts, whom she had
known for several years.
       2
         Pitts v. State, CR-80-40 (Ark. Feb. 1, 1982) (unpublished per curiam) (Rule 37 relief
denied); Pitts v. Lockheart, 753 F.2d 689 (8th Cir. 1985) (first federal habeas petition denied);
Pitts v. Lockheart, 911 F.2d 109 (8th Cir. 1990) (second federal habeas petition denied); Pitts
v. Norris, 85 F.3d 348 (8th Cir. 1996) (third federal habeas petition denied); Pitts v. State, 336
Ark. 580, 987 S.W.2d 407 (1999) (petition to proceed with a writ of error coram nobis
denied); Pitts v. State, CR-80-40 (Ark. May 18, 2000).

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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 that was selected for mitochondrial DNA

testing was lost during the time that Pitts appealed the circuit court’s denial of his request for

additional testing, and it has yet to be found.

       Meanwhile, in 1996, the FBI responded to allegations of improper practices by certain

FBI laboratory technicians by forming a task force to ensure that no criminal defendant’s right

to a fair trial had been compromised. After reviewing Pitts’s case, the task force determined

that Pitts’s trial had been tainted by Malone’s testimony. In 2014, the DOJ sent letters to

Pitts, the prosecuting attorney, the public defender, and the Innocence Project informing the

recipients that Malone was one of thirteen examiners whose work in hair analysis failed to

meet professional standards. In a letter dated February 4, 2015, the DOJ advised the

prosecuting attorney of the Sixth Judicial District that “we have determined that a report or

testimony regarding the microscopic hair comparison analysis containing erroneous

statements was used in this case. . . . We ask that you determine the actions your office

should take in light of this error.” Pitts received a copy of this letter from the DOJ in a letter

dated April 2, 2015. The DOJ and the FBI review concluded that there were three types of

errors in Malone’s testimony:


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       (1) [T]he examiner stated or implied that the evidentiary hair could be associated with
       a specific individual to the exclusion of all others—this type of testimony exceeded
       the limits of the science;

       (2) the examiner assigned to the positive association a statistical weight or probability
       or provided a likelihood that the questioned hair originated from a particular source,
       or an opinion as to the likelihood or rareness of the positive association that could lead
       the jury to believe that valid statistical weight can be assigned to a microscopic hair
       association—this type of testimony exceeded the limits of the science; or

       (3) the examiner cites the number of cases or hair analyses worked in the laboratory
       and the number of samples from different individuals that could not be distinguished
       from one another as a predictive value to bolster the conclusion that a hair belongs to
       a specific individual—this type of testimony exceeded the limits of the science.

The prosecutor from the Sixth Judicial District conceded that Malone’s work was material

to Pitts’s conviction.

       As noted previously, Pitts has asserted in his petition that this court could grant him

postconviction relief in accordance with several different legal modalities. For the reasons

stated in Strawhacker v. State, 2016 Ark. 348, we reinvest jurisdiction in the trial court and

grant Pitts permission to seek relief via a writ of error coram nobis.

       As we stated in Strawhacker, “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. . . . The writ is

allowed only under compelling circumstances to achieve justice and to address errors of the

most fundamental nature.” The writ is available 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.” Id. at ___ (citing Penn v. State,

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282 Ark. 571, 670 S.W.2d 426 (1984)).

       Petition granted.

       DANIELSON and GOODSON, JJ., concur in part and dissent in part.

       PAUL E. DANIELSON, Justice, concurring in part and dissenting in part. I

concur in part and dissent in part for the same reasons set forth in Strawhacker v. State, 2016

Ark. 348, handed down this same date.

       COURTNEY HUDSON GOODSON, Justice, concurring in part and dissenting

in part. I join the opinions authored by Justice Danielson in this case and that of Strawhacker

v. State, 2016 Ark. 348, ___ S.W.3d ___. I share his view that the majority has precipitously

preordained the expansion of the writ of error coram nobis without the benefit of a fully

developed record. This court should be well apprised of the facts before taking such an

extraordinary course of action. I write separately to express another concern that these cases

may present.

       At issue is the testimony of FBI agent Michael Malone concerning microscopic hair-

comparison analysis. According to the Department of Justice, aspects of Malone’s testimony

at Pitts’s trial exceeded the limits of science by overstating the probative value of hair-

comparison analysis. However, as I read the record that has been provided to us in this case,

it appears that the limits of this analysis may have been known at the time of the trial and long

before the Department of Justice issued its most recent report. The topic was the primary

focus of trial counsel’s cross-examination of Malone. Indeed, Malone’s written report in this

case stated that hair-comparison analysis is not a basis for personal identification. In addition,


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questions regarding Malone’s expert testimony in this and other cases have been percolating

since the late 1990s with the issuance of the 1997 OIG report.1 At and before that time, the

appellate courts of Florida were highly critical of Malone’s testimony. See Long v. State, 689

So. 2d 1055 (Fla. 1997); Horstman v. State, 530 So. 2d 368 (Fla. Ct. App. 1988). In January

2008, at a hearing on Pitts’s petition for writ of habeas corpus, Pitts’s counsel acknowledged

that Malone had been discredited in a number of cases across the country. Although I express

no opinion in the matter, the timeliness of this petition and diligence are issues that might be

explored once jurisdiction is reinvested in the circuit court.

       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.




1
 I note that in Strawhacker’s case, the letter written to him by the Department of Justice in
October 2014 states that “[i]t is possible that you or your counsel previously received notice
of the [1997] OIG Report and/or a copy of the Independent Scientific Review from the
prosecutor’s office responsible for the prosecution at issue, or that you or your counsel
otherwise became aware of the criticisms, as they were widely known and the subject of many
media reports.”

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