Lewis Ashker plans to continue fighting for his freedom.
Ashker, now 72, remains in the South Dakota State Penitentiary in Sioux Falls serving life in prison for murdering Jerry Plihal.
In late November, the South Dakota Supreme Court agreed with a circuit court's ruling to deny Ashker a new trial based on DNA testing of hairs from the original crime scene from 1985. Immediately following the ruling, The Daily Republic sent a list of questions to Ashker by mail for his reaction.
His eight-page response letter arrived to The Daily Republic's office earlier this week.
"I was very disappointed in the ruling handed down, wherein the issues were deemed to be without merit," Ashker wrote.
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Plihal, a 67-year-old Delmont resident, was found dead in his home in June 1985. Ashker and another man, Kurt Novaock, were named as suspects and both convicted in 1986 of stabbing Plihal to death.
In 2009, Ashker sought to have hairs recovered from the crime scene tested for mitochondrial DNA. Those tests were not available when the original trial was being held. In 2011, the hairs were sent for testing. The South Dakota state lab, the FBI and now the Arizona Department of Public Safety Criminal Laboratory found in 2013 two of the four hairs belonged to Plihal. Tests on the other two hairs were inconclusive.
The state claimed the results did not release Ashker from the 1986 jury conviction. Judge Bruce Anderson determined there was insufficient basis to grant a new trial.
Ashker said in the letter that he disagrees with the decisions.
He said when the circuit court granted his petition for DNA testing, it showed the court recognized the hair evidence to be crucial to his conviction. But after the hair was shown to not be Ashker's, he said the state argued the hair didn't show Ashker was innocent, Ashker wrote.
In his response letter to The Daily Republic, Ashker never specifically states how he plans to continue fighting for his release from prison or what his next step will be.
S.D. Attorney General Marty Jackley told The Daily Republic the tests showed the same results as were presented at trial -- inconclusive -- thus not exonerating Ashker from the jury's decision.
Jackley agreed the hairs were worth testing. But it took awhile because Ashker would not sign under penalties of perjury -- meaning Ashker wouldn't say under oath he is innocent of murdering Plihal, Jackley said. When Ashker signed that affidavit under oath, then the state proceeded to have the hairs tested.
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Ashker also argues original witnesses perjured themselves at the 1986 trial. For example, he claims the state criminologist at the time, Rex Riis, testified there were only light- to dark-brown to gray/colorless hairs found at the scene. Riis also testified Novaock's hair was never tested because he is a natural blond and no blond hairs were found at the scene, Ashker wrote.
As years passed, evidence seemed to have been misplaced, and it took time to find the hairs Ashker wanted for testing. When hairs from the original case file were finally found, discovered was one long blond hair in a slide, which ended up being too degraded to test. To explain this hair, Ashker wrote, the state presented a 1985 forensic report noting the hair was found at the scene, along with three other long, blond hairs.
"The revelation of this lab report coupled with Mr. Riis' trial testimony should have resulted in the admission by the state evidence at my trial had been falsified and that Mr. Riis had perjured himself," Ashker wrote. "Both of which are crimes as well as sufficient, in and of themselves, for reversal of my conviction."
Jackley said the blond hairs were brought forward at trial, were also presented at a 2012 hearing and were determined to be the same hairs found at the crime scene.
"There are no mysterious additional hairs and no additional results," Jackley said. "The hairs have now been tested by the Arizona lab, the state lab and the FBI."
The 2013 lab report showed none of the hairs belonged to Ashker, which the state agreed with, Jackley said. But, that was the same conclusion presented to the jury in 1986 and does not prove Ashker is innocent, he said.
In his letter to The Daily Republic, Ashker reiterated he has never been to Delmont, he never met Plihal, was never in his home or yard, and did not kill him.
"I am more than a little disappointed in the Supreme Court's ruling, not only because I remain a murderer in the mind of society, but also because the public is kept blind to the extremes the state went to to secure the conviction," Ashker wrote.
