Pitts v. Payne

EUGENE ISSAC PITTS, PETITIONER v. DEXTER PAYNE, Director, Arkansas Department of Correction, RESPONDENT

No. 5:15-cv-00354 DPM-JTK

United States District Court, E.D. Arkansas, Pine Bluff Division

December 4, 2020

PROPOSED FINDINGS AND RECOMMENDED DISPOSITION INSTRUCTIONS

The following recommended disposition has been sent to Chief United States District Judge D.P. Marshall Jr. Any party may serve and file written objections to this recommendation. Objections should be specific and should include the factual or legal basis for the objection. If the objection is to a factual finding, specifically identify that finding and the evidence that supports your objection. An original and one copy of your objections must be received in the office of the United States District Clerk no later than fourteen (14) days from the date of the findings and recommendations. The copy will be furnished to the opposing party. Failure to file timely objections may result in waiver of the right to appeal questions of fact.

If you are objecting to the recommendation and desire to submit new different, or additional evidence, and to have a hearing for this purpose before the United States District Judge, you must, at the same time that you file your written objections include a “Statement of Necessity” that sets forth the following:

1. Why the record made before the Magistrate Judge is inadequate.

2. Why the evidence to be proffered at the requested hearing before the United States District Judge was not offered at the hearing before the Magistrate Judge.

3. An offer of proof setting forth the details of any testimony or other evidence (including copies of any documents) desired to be introduced at the requested hearing before the United States District Judge.

From this submission, the United States District Judge will determine the necessity for an additional evidentiary hearing, either before the Magistrate Judge or before the District Judge.

Mail your objections and “Statement of Necessity” to:

Clerk, United States District Court

Eastern District of Arkansas

600 West Capitol Avenue, Suite A 149

Little Rock, AR 72201-3325

I. INTRODUCTION

Eugene Pitts, an inmate in the Arkansas Department of Correction (ADC), brings this habeas action pursuant to 28 U.S.C. § 2254, based on newly discovered evidence-namely, the Department of Justice's repudiation of expert witness testimony provided at his trial by FBI Special Agent Michael Malone. Respondent has filed a Motion to Dismiss (Doc. No. 64) asserting Petitioner's Amended Petition does not satisfy the threshold requirements of 28 U.S.C. § 2244 and should be dismissed with prejudice. Petitioner filed a Response averring he has met the requirements of § 2244 and arguing the Court should address his claims on the merits and grant habeas relief (Doc. No. 67).

Also pending is Petitioner's Motion to Supplement his Habeas Petition and Reply that the Clerk docketed as a Motion to Amend/Correct Amended Petition for Writ of Habeas Corpus (Doc. No. 68). In the motion, Petitioner requests the opportunity to supplement both his Amended Petition and his Reply to include Arkansas Supreme Court case Williams v. State, 2020 Ark. 224, 601 S.W.3d 418 (2020), where the court applied the law-of-the-case doctrine to find itself barred from revisiting its 2017 decision that Williams was precluded from obtaining writ of error coram nobis relief because he failed to exercise due diligence.

For the reasons that follow, the Court recommends that both the Motion to Amend/Correct Amended Petition for Writ of Habeas Corpus, Doc. No. 68, and the Motion to Dismiss, Doc. No. 64, be granted.

A. Department of Justice (DOJ) and Federal Bureau of Investigation (FBI) Report

In April 1997, and in response to a WASHINGTON POST investigation, the DOJ Office of Inspector General released an official report regarding the investigation of wrongdoing in the FBI Crime Laboratory.^[1] Along with many others, FBI analyst, Special Agent Michael Malone, was specifically found in that report to have testified falsely, inaccurately, and outside his expertise. The report scrutinized Malone's examination of a purse that then United States District Judge Alcee Hastings had introduced as an exhibit in his 1983 trial related to an alleged bribery scheme. The FBI lab examined the purse in 1985, when an investigating committee for the Judicial Council of the Eleventh Circuit Court of Appeals was investigating allegations of misconduct by Hastings in connection with the alleged bribery and other matters. It was determined that Malone falsely testified before the judicial committee that he himself performed certain testing he did not actually perform and also testified outside his expertise and inaccurately concerning those test results.

An April 2012 WASHINGTON POST article revealed that DOJ officials had known for years that flawed forensic testimony might have lead to the convictions of hundreds of potentially innocent people. Spencer S. Hsu, “Convicted defendants left uninformed of forensic flaws found by Justice Dept., ” THE WASHINGTON POST, April 16, 2012. In July 2012, the DOJ commenced a task force to review all federal and state cases between 1982 and 1999 in which FBI laboratory hair examiners testified for the prosecution. The purpose of this review was “to determine whether any defendants were wrongly convicted or deserve a new trial because of flawed forensic evidence.” Spencer S. Hsu, “Justice Dept., FBI to Review Use of Forensic Evidence in Thousands of Cases, ” THE WASHINGTON POST, July 10, 2012. Thereafter “[i]n July 2013, the Innocence Project and National Association of Criminal Defense Lawyers (NACDL) announced an agreement with the Justice Department and FBI to review over 2, 500 criminal cases involving FBI microscopic hair analysis between 1972 and 1999.” Andrew Emett, “DOJ Admits FBI Forensic Examiners Gave False Testimony for Decades, ” NATION OF CHANGE, April 21, 2015. According to THE WASHINGTON POST, the FBI completed reviews of 342 cases. Out of those cases, 268 trials involved hair evidence used against defendants, and FBI examiners reportedly provided flawed forensic testimony in 257 of those 268 trials, or over ninety-five (95%) of the time. Spenser S. Hsu, “FBI admits flaws in hair analysis over decades, ” THE WASHINGTON POST, April 18, 2015.

In July 2014, the DOJ Office of Inspector General released “An Assessment of the 1996 Department of Justice Task Force Review of the FBI Laboratory.”^[2] It was the third report of its kind published since 1997 related to allegations of false or misleading testimony given by the FBI laboratory personnel. The report devotes an entire chapter-Chapter Four-to Special Agent Malone, who the task force found was a senior examiner for the Hairs and Fibers Unit and handled a disproportionately large number of cases. The report noted that Agent Malone became well known to many judges and members of the law enforcement community due to his work on several high profile cases, including those of Jeffrey MacDonald, a Green Beret Army surgeon convicted of murdering his wife and children at Fort Bragg, North Carolina; John Hinckley, who attempted to assassinate President Ronald Reagan; and Robert (Bobby) Joe Long, a serial killer in Florida.

The report determined that approximately ninety-six percent (96%) of Agent Malone's cases were problematic in one or more areas. Some of the most significant, recurring problems with Malone's work were:

1. His testimony that an individual hair could be determined to belong unequivocally to only one person in the world, based solely on microscopic analysis, had no scientific basis at the time Malone testified.

2. His testimony to the statistical probability of a match was inappropriate in hair analyses based solely on microscopic analysis.

3. His conclusions, as described in his reports, had unclear and unsupported bases.

4. His documentation was inadequate and often indecipherable.

5. His testimony included analysis that was not documented in his lab report or bench notes.

Doc. No. 36-2, pp. 56-57.

B. Special Agent Michael Malone testifies at Pitt's trial

In 1979, a Pulaski County Circuit Court jury convicted Petitioner Eugene Pitts for the murder of North Little Rock veterinarian Dr. Bernard Jones, and the court sentenced him to life imprisonment. Police arrested Pitts on or about January 23, 1979, after they found the body of Dr. Jones on Arlington Drive in his North Little Rock Lakewood-area neighborhood. Pitts v. State, 273 Ark. 220, 224, 617 S.W.2d 849, 851 (1981) (Pitts I).

Pitts was no stranger to Benita Terry, who married Dr. Jones following her graduation from the University of Arkansas School of Law (U of A Law School). Pitts and Benita attended the U of A Law School, where they were both among the fifteen to twenty African-American students enrolled there. Because of this small group, Mrs. Jones testified at trial that they would all often commune. Id. In fact, because she and Petitioner were from the Little Rock area, they occasionally traveled back to Little Rock from Fayetteville in her vehicle. Id. Mrs. Jones was ahead of Petitioner in her studies, and upon graduation, she returned to Little Rock, married Dr. Jones, and began her legal career at Legal Aid.

In January 1978, Mrs. Jones started receiving harassing phone calls from Petitioner at Legal Aid. According to Mrs. Jones Petitioner's initial conversations were cordial, but he would say she belonged to him and would have to get rid of her husband. On February 14, 1978, she received a dozen roses from a flower shop with no identification of the sender. Id. On that same day, Dr. Jones received a package at his veterinary clinic that contained a bullet with “Bernard”...