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Lawyer: Remand '89 rape case, as expert provided 'junk science'

by Spencer Willems | January 5, 2016 at 5:45 a.m.

An attorney representing a convicted rapist serving a life sentence due in part to testimony from a discredited FBI expert asked the Arkansas Supreme Court on Monday to return the case to a trial court for a potential retrial.

Jeff Rosenzweig, who was appointed by the Arkansas Supreme Court in June to represent Lonnie Strawhacker, argued in a brief filed Monday that the high court should allow Strawhacker another chance to prove his innocence a quarter-century after his arrest in Northwest Arkansas.

On Monday, Rosenzweig said there are some procedural hurdles facing Strawhacker, who lost his appeal before the Arkansas Supreme Court in 2002, but that there should be a way for his client to seek relief.

"This shouldn't be left to clemency," Rosenzweig said. "The system should have a device to clean up errors like this."

The error in Strawhacker's case, as well as several hundred other cases nationwide, came from a previously used method of forensic hair analysis.

In 1989, Strawhacker, who is now 60, was accused of beating a woman in Fayetteville until her face was so swollen that she couldn't see. He also was accused of sexually assaulting her.

The attack happened on a dark night, and between that and her swollen face, the victim was unable to visually identify her attacker. Instead, she identified Strawhacker by voice as her attacker.

In addition to her testimony, Michael Malone, then a microscopic hair analyst with the FBI, testified that a pubic hair found at the crime scene matched other hair belonging to Strawhacker.

But testimony from Malone and others has been discredited, and the discipline of comparing microscopic characteristics of hair without analyzing DNA has been relegated to "junk science," Rosenzweig argued in his brief.

In 2009, a National Academy of Sciences report found fault in the analysis methods used in convictions like Strawhacker's.

After DNA analysis was used to reverse convictions in a few high-profile cases, the FBI and the Department of Justice began reviewing cases where such testimony was offered.

By late April 2015, federal officials found that 26 of their 28 experts, including Malone, gave what they called "erroneous" testimony.

In Monday's court filing, Rosenzweig argued that there were several flaws in Malone's testimony.

The prosecuting attorney emphasized that testimony in his final remarks to jurors during Strawhacker's trial.

Rosenzweig said he thinks the revelation that Malone offered discredited testimony entitles Strawhacker to seek relief, even a retrial, under a Brady claim.

Named after a U.S. Supreme Court case in which prosecutors withheld information that could have helped a murder suspect, Brady claims often involve instances in which police or prosecutors suppress information that could have exculpated a defendant.

State attorneys have argued that Brady, however, does not apply to Strawhacker's case. No information was withheld from Strawhacker during his trial, and there is no way the court could have known years in advance of any problems with the FBI expert testimony used, the state attorneys argued. They also say other evidence links Strawhacker to the crime.

Rosenzweig said he disagrees with state attorneys but also said there are other procedural options available to the court that serve justice and Strawhacker's rights to due process.

"It is incumbent on the judicial system to provide a remedy when testimony -- particularly from a person in authority -- is exposed as fallacious or false," Rosenzweig wrote. "If current procedures do not provide a remedy, the procedures should be expanded."

If the high court returns the case to the lower court, Strawhacker would be able to appear before a trial judge to determine if the testimony from Malone was exculpatory. If the judge thought so, Rosenzweig said, Strawhacker could get a retrial.

Strawhacker is housed at a state prison in Grady.

Metro on 01/05/2016

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