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Convict says DNA proves innocence

Lewis Ashker, who was convicted in 1986 of murdering Delmont resident Jerry Plihal, walks from the courtroom Wednesday at the Douglas County Courthouse in Armour. He appeared for a hearing on DNA testing of hairs from the 1985 murder. (Anna Jauhola/Republic)

ARMOUR -- A convicted murderer claims DNA testing has proven he was not at the scene of a Delmont man's death in 1985.

Lewis Ashker, who was convicted in 1986 of murdering Jerry Plihal, attended a court proceeding Wednesday at the Douglas County Courthouse in Armour. Judge Bruce Anderson presided and Deputy Attorney General Bob Mayer participated telephonically.

Ashker represented himself and focused on two hairs tested for mitochondrial DNA. He said the two hairs, which were cut at both ends, were ruled out as his but were consistent with Plihal's. The mitochondrial testing was not available until 2008.

"You can't prove Ashker is or could be the source of the hair recovered from the wounds of Mr. Plihal," Ashker said. "To do so would be extremely prejudicial."

Ashker is asking Judge Anderson to overturn the jury's guilty verdict from 1986 and grant a new trial. Ashker was sentenced in June 1986 to life in prison without parole.

Ashker and another man, Kurt Novaock, both of Nebraska, went to Plihal's Delmont home in June 1985 to steal the man's gun collection. Novaock had been Plihal's neighbor at one time and knew of the collection. According to news reports of the crime, the two believed Plihal was not home, broke in and found Plihal inside.

Plihal was stabbed 21 times. He suffered wounds to his neck and hands. Two of the hairs taken from his right hand are the ones in question.

The theory presented by the defense in 1986 was that the person responsible for the murder had recently had a haircut -- hence the hair cut at both ends, meaning the hair had no root.

Mayer, the state's lawyer, said that was one theory, but another suggested during trial was that the hairs were sliced off during the attack with the knife used to stab Plihal.

Mayer acknowledged Ashker has been ruled out as the source of the two hair samples in question; however, Mayer said all other evidence must be taken into account, and proving two hairs were not Ashker's does not prove he was not at the scene and did not commit the murder. Mayer said an argument like Ashker's needs compelling evidence that would have changed the outcome of the jury trial.

"After mitochondrial testing, the victim himself cannot be excluded from being the donor of those hairs," Mayer said. "That's all he's got, your honor. That's it. This is hardly compelling evidence to change the outcome of the trial."

Ashker contended the tests prove he is innocent. He said it doesn't matter who the hair belongs to -- the tests have shown the hair does not belong to him.

"Could the hair belong to the victim? I don't know. I wasn't there and the science backs it up," Ashker said.

Judge Anderson will make a decision within a week after he studies the record more carefully to make sure he's clear on factual issues, he said.