Commonwealth v. Chmiel

• Decision Date: 22 November 2017
• Docket Number: No. 726 CAP,726 CAP
• Citation: 173 A.3d 617
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. David CHMIEL, Appellant
• Court: Pennsylvania Supreme Court

173 A.3d 617

COMMONWEALTH of Pennsylvania, Appellee

v.David CHMIEL, Appellant

No. 726 CAP

Supreme Court of Pennsylvania.

Submitted: January 30, 2017

Decided: November 22, 2017

Stuart Brian Lev, Esq., James H. Moreno, Esq., Tracy L. Ulstad, Esq., for Appellant.

Philip Michael McCarthy, Esq., Amy Zapp, Esq., PA Office of Attorney General, for Appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE WECHT

In 2002, David Chmiel was convicted and sentenced to death for the murder of three elderly siblings.¹ At Chmiel's 2002 trial, the Commonwealth relied upon the testimony of a state police forensic examiner, who opined that hair found at the crime scene was microscopically similar to Chmiel's hair. On April 20, 2015, the Federal Bureau of Investigation ("FBI") issued a press release admitting, for the first time, that testimony by FBI analysts regarding microscopic hair analysis in criminal trials was erroneous in the vast majority of cases (hereinafter, "FBI press release").² The FBI further admitted that it had, over the course of twenty-five years, conducted multiple training courses for state and local forensic examiners throughout the country that incorporated some of the same flawed language that the FBI examiners had used in lab reports and trial testimony. Appendix C at 2.

On June 18, 2015, Chmiel filed a petition pursuant to the PCRA, asserting that his conviction and death sentence rested upon unreliable microscopic hair comparison evidence. Recognizing that his petition facially was untimely, Chmiel asserted that the FBI press release constituted a newly discovered fact that satisfied the timeliness exception set forth in Section 9545(b)(1)(ii).³ The PCRA court rejected Chmiel's reliance upon the FBI press release as a newly discovered fact, and dismissed the petition as untimely. We reverse, and we remand for further proceedings.

George Surma was a Pennsylvania State Police ("PSP") forensic scientist who testified for the Commonwealth at Chmiel's trial. At that time, Surma had been a forensic scientist with the PSP for twenty-seven years and had testified as an expert in forensic microscopy or electrophoresis on three to four hundred prior occasions. Commonwealth v. Chmiel, 612 Pa. 333, 30 A.3d 1111, 1137 (2011) (" Chmiel II "); Notes of Testimony ("N.T."), 8/27/2002, at 5–6. Surma testified that he had received extensive training in the field of forensic science and had engaged in "advanced work in the analysis of blood, electrophoresis of blood and miscroscopy." Id. at 5.

Surma microscopically analyzed six hairs retrieved from a sweater sleeve mask that was found at the crime scene. This mask had been cut from a sweater and used to conceal the intruder's identity during the murders. Commonwealth v. Chmiel , 585 Pa. 547, 889 A.2d 501, 510 (2005) (" Chmiel I "). The police were able to trace the sweater sleeve mask to Martin Chmiel, Chmiel's brother. Id. At trial, Surma testified that he used a comparison microscope to detect up to fourteen possible features of the cuticle, cortex, and medulla of the hair. Chmiel II , 30 A.3d at 1124 ; N.T., 8/27/2002, at 14–23. Surma subjectively selected these fourteen bases of comparison by considering "whatever features or characteristics [he found] in that particular hair." Id. at 19. Surma did not explain how many features had to be similar to warrant a conclusion of microscopic similarity, or dissimilar to preclude such a conclusion. Nevertheless, Surma concluded that two hairs found on the sweater sleeve mask were "microscopically similar" to hair samples obtained from Chmiel, but not to those obtained from Chmiel's brother, Martin, or to the victims. Chmiel II , 30 A.3d at 1124 ; N.T., 8/27/2002, at 20, 26, 56.⁴ The prosecutor exaggerated Surma's conclusions in his opening and closing statements, promising a "microscopic match," between Chmiel's hairs and those found at the crime scene, N.T., 8/19/2002, at 79, and arguing that Surma's testimony had established such a "match." N.T., 9/6/2002, at 175–77.

On March 21, 2007, Chmiel filed his first PCRA petition. Chmiel raised numerous claims, including a claim that trial counsel was ineffective for failing to challenge the admissibility of Surma's testimony pursuant to Frye v. United States , 293 F. 1013 (D.C. Cir. 1923), and for failing to obtain an expert witness to rebut Surma's testimony. Chmiel II , 30 A.3d at 1138. This Court found no merit to these ineffectiveness claims.

On June 18, 2015, Chmiel filed the present PCRA petition, asserting that his conviction and death sentence rested upon unreliable hair comparison evidence in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article I, Section 9 of the Pennsylvania Constitution. Chmiel also sought discovery from the Commonwealth pursuant to Pa.R.Crim.P. 902(E)(1).

Recognizing that his petition was untimely on its face, Chmiel relied upon the timeliness exception for newly discovered facts, 42 Pa.C.S. § 9545(b)(1)(ii). Chmiel asserted that his claim was predicated upon the April 20, 2015 FBI press release, and that he could not previously have ascertained the facts contained therein by the exercise of due diligence. As support for his position that the press release revealed newly discovered facts, Chmiel relied upon an April 18, 2015 article in The Washington Post about the FBI press release. Chmiel filed his PCRA petition within sixty days of the FBI press release. See 42 Pa.C.S. § 9545(b)(2). Because the FBI press release and the Washington Post article describing the FBI's findings are the basis of Chmiel's attempt to overcome the PCRA's time restrictions, they warrant close review.

The FBI press release is entitled "FBI Testimony on Microscopic Hair Analysis Contained Errors in at Least 90 Percent of Cases in Ongoing Review." Appendix C at 1. In the press release, the FBI publicly disclosed the initial findings of an ongoing investigation undertaken jointly by the Department of Justice ("DOJ"), the FBI, the Innocence Project, and the National Association of Criminal Defense Lawyers ("NACDL"). The investigation scrutinized the testimony of FBI analysts concerning microscopic hair comparison analysis prior to 2000, the point at which mitochondrial DNA testing became routine in the FBI. The review was prompted by exonerations of three men who had been convicted, in part, based upon the scientifically flawed testimony of three FBI hair examiners. The review encompassed cases in which FBI microscopic hair comparison was used to link a defendant to a crime in both the federal and state systems. The FBI concluded that its examiners' testimony in at least 90% of cases contained erroneous statements. The FBI's findings "confirm[ed] that the FBI microscopic hair analysts committed widespread, systematic error, grossly exaggerating the significance of their data under oath with the consequence of unfairly bolstering the prosecution's case...." Appendix C at 1.

The FBI press release quoted Peter Neufeld, co-director of the Innocence Project, as saying that the results of the FBI's review demonstrated an "epic miscarriage of justice." Id. The press release also quoted Norman L. Reimer, Executive Director of NACDL, as stating that, although "[i]t will be many months before we can know how many people were wrongly convicted based on this flawed evidence," he was certain that there were "many whose liberty was deprived and lives destroyed by prosecutorial reliance on this flawed, albeit highly persuasive evidence." Id. Mr. Reimer called upon lawmakers to prevent similar systemic failures, and upon the courts to "give those who were impacted by this evidence a second look at their convictions." Id. The FBI committed to "address[ing] errors made in statements by FBI examiners regarding microscopic hair analysis in the context of testimony and laboratory reports." Id.

The FBI press release also described the FBI's efforts to train state and local hair examiners in such "invalid" and "faulty" evidence:

Over the course of 25 years, the FBI conducted multiple two-week training courses that reached several hundred state and local hair examiners throughout the country and that incorporated some of the same scientifically flawed language that the FBI's examiners had used in some lab reports and often in trial testimony. In response to the FBI/DOJ review, the Texas Forensic Scientific Commission has already begun a review of cases handled by analysts at state and local crime labs. Similar audits are needed in most other states.

Id. at 2. The press release stated that the FBI's review did not include cases in which hair comparison was conducted by state and local crime labs. The findings prompted the FBI to commit to "[s]trongly encourag[ing] the states again to conduct their own independent reviews where its examiners were trained by the FBI." Id.

The April 18, 2015 edition of The Washington Post reported upon the FBI's findings in an article entitled "FBI admits flaws in hair analysis over decades ." See Appendix B.⁵ The article reported that the FBI and DOJ formally had acknowledged that "nearly every examiner in an elite FBI forensic unit gave flawed testimony in almost all trials in which they offered evidence against criminal defendants over more than a two-decade period before 2000." Id. at 1. The Washington Post quoted legal analysts as characterizing the FBI's review as "a watershed in one of the country's largest forensic scandals, highlighting the failure of the nation's courts for decades to keep bogus scientific information from juries. ..." Id. The questions following the FBI's review, according to the article, included how the courts will respond to findings that "confirm long-suspected problems with subjective, pattern-based forensic techniques—like hair and bite-mark comparisons—that have contributed to wrongful convictions in more than one-quarter of 329 DNA–exoneration cases since 1989." Id. The...