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UPDATE:

Milone Trial Transcript (Macek, Richard)

In this case, Milone raises several issues in his habeas petition that were not presented to any state court. He wishes the Court to excuse his failure to exhaust all of his state remedies on the ground that it would constitute a miscarriage of justice, due to his innocence of the mur- der, not to entertain his petition. In support of his claim of actual innocence Milone makes the following points:

1) The evidence presented at his trial that linked his dentition to the bite mark found on Sally's thigh was unreliable. First, it failed both the Frye and the Daubert tests of admissibility of scientific evidence because the science of "forensic odontology" was in its infancy at the time of his 1973 trial. Second, ex- pert testimony is now available (and is reliable be- cause the science of forensic odontology has advanced considerably in the past 20 years) tending to show that Milone could not have made the mark found on Sally's thigh. Indeed, the mark on Sally's thigh can now be shown to match the dentition of a known serial murderer, Richard Macek.

2) Richard Macek confessed to the murder of Sally Kandel several times before committing suicide in his jail cell in 1987. (The parties dispute whether Macek also recanted these confessions.)

Trial Transcript