- Associated Press - Thursday, October 20, 2016

LITTLE ROCK, Ark. (AP) - Arkansas’ high court issued opinions Thursday sending two cases back to lower courts to consider whether flawed testimony from FBI forensics experts is enough to overturn the convictions of two men.

The justices said there was enough evidence to ask the lower courts to consider the arguments made by attorneys in both cases for writs of error coram nobis, a legal move that allows a court to reopen a case when a substantial error is found that did not appear in the original judgment. In the cases Thursday, the error at issue is the testimony of an FBI expert on microscopic hair analysis.

The Justice Department announced last year that several experts had overstated the strength of similar forensic evidence dating back decades. The Arkansas cases are two of more than 250 identified nationwide by the Justice Department, which stressed that the flawed forensic testimony did not necessarily establish the defendants’ innocence.

Lonnie Strawhacker was convicted of rape in Washington County in 1990 based partly on testimony from an FBI hair-comparison expert during his trial. Eugene Pitts was convicted of capital murder in the 1979 kidnapping and slaying of a North Little Rock veterinarian also based partly on testimony from the same FBI expert, identified as Michael Malone.

John Wesley Hall, a lawyer for Pitts, said the rulings Thursday are far from the last word in the appeals.

“This is not a retrying. It’s to establish whether (Pitts) is entitled to a new trial… and how the bad hair testimony affected the verdict,” Hall said.

The state had argued that the flawed testimony did not fit into the established categories for error coram nobis, saying that granting the petitions could open a floodgate of appeals in other cases. Petitions have been granted for defendants later found to have been insane at trial, coerced guilty pleas, evidence withheld by prosecutors and third-party confessions to the crime during the appeals process.

“We acknowledge that Strawhacker’s claim may not neatly fall within one of the four established categories,” the justices wrote in a majority opinion. “But the categories are not set in stone.”

The opinion goes on to instruct the lower circuit courts on how to determine the validity of the appeal under the specific legal maneuver. Justice Paul Danielson wrote in his dissent that the attorneys and courts should consider other established avenues of challenging the testimony before expanding the definition of error coram nobis.

Strawhacker’s case will be heard in Washington County, and Pitts’ case will be heard in Pulaski County Circuit Court.

As for future issues with forensic testimony, the Justice Department issued a memo in September saying it was developing a new code of professional responsibility for its forensic science laboratories, including asking forensic examiners and prosecutors to no longer use the phrase “reasonable scientific certainty” in their reports or testimony.

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