In re Renewed Investigation of State Police, 32885.

• Decision Date: 16 June 2006
• Docket Number: No. 32885.,32885.
• Citation: 633 S.E.2d 762
• Court: West Virginia Supreme Court
• Parties: In the Matter of: RENEWED INVESTIGATION OF THE STATE POLICE CRIME LABORATORY, SEROLOGY DIVISION.

Page 762

633 S.E.2d 762

In the Matter of: RENEWED INVESTIGATION OF THE STATE POLICE CRIME LABORATORY, SEROLOGY DIVISION.

No. 32885.

Supreme Court of Appeals of West Virginia.

Submitted: May 10, 2006.

Decided: June 16, 2006.

Syllabus by the Court

1. "Although it is a violation of due process for the State to convict a defendant based on false evidence, such conviction will not be set aside unless it is shown that the false evidence had a material effect on the jury verdict." Syllabus Point 2, Matter of W.Va. State Police Crime Lab., 190 W.Va. 321, 438 S.E.2d 501 (1993).

2. "Serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (1993)." Syllabus Point 3, Matter of W.Va. State Police Crime Lab., 191 W.Va. 224, 445 S.E.2d 165 (1994).

3. "`A new trial will not be granted on the ground of newly-discovered evidence unless the case comes within the following rules: (1) The evidence must appear to have been discovered since the trial, and, from the affidavit of the new witness, what such evidence will be, or its absence satisfactorily explained. (2) It must appear from facts stated in his affidavit that [defendant] was diligent in ascertaining and securing his evidence, and that the new evidence is such that due diligence would not have secured it before the verdict. (3) Such evidence must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point. (4) The evidence must be such as ought to produce an opposite result at a second trial on the merits. (5) And the new trial will generally be refused when the sole object of the new evidence is to discredit or impeach a witness on the opposite side.' Syllabus Point 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894)." Syllabus, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

4. A prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence and who challenges his or her conviction based on the serology evidence is to be granted a full habeas corpus hearing on the issue of the serology evidence. The prisoner is to be represented by counsel unless he or she knowingly and intelligently waives that right. The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny. At the close of the evidence, the circuit court is to draft a comprehensive order which includes detailed findings as to the truth or falsity of the serology evidence and if the evidence is found to be false, whether the prisoner has shown the necessity of a new trial based on the five factors set forth in the syllabus of State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979).

5. A circuit court that receives a petition for a writ of habeas corpus from a prisoner against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence, and whose request for relief is grounded on the serology evidence, is to hear the prisoner's challenge in as timely a manner as is reasonably possible.

6. A prisoner who was convicted between 1979 and 1999 and against whom a West Virginia State Police Crime Laboratory serologist, other than Fred Zain, offered evidence may bring a petition for a writ of habeas corpus based on the serology evidence despite the fact that the prisoner brought a prior habeas corpus challenge to the same serology evidence, and the challenge was finally adjudicated.

George Castelle, Esq., Public Defender Corporation, Charleston, for Prisoners.

Philip W. Morrison, II, Esq., Special Prosecutor, South Charleston, for the State.

MAYNARD, Justice.

This case concerns a third investigation of the Serology Division of the State Police Crime Laboratory ("Crime Lab"). The specific issue in this case is whether serologists in the Crime Lab, other than Fred Zain, falsified evidence in criminal prosecutions.¹ This Court earlier appointed a special judge to conduct an investigation and to render a report. We now adopt the special judge's report to the extent that it finds insufficient evidence of intentional misconduct by Zain's assistant serologists to warrant invalidation of serology evidence and a systematic review of those cases in which serology evidence was offered. However, because of the frequent and recurring errors identified in the work of Zain's assistant serologists, we deem it necessary to enact a special habeas corpus procedure, outlined below, to be utilized by those prisoners against whom serologists, other than Zain, offered evidence.

I. FACTS

A brief history of recent investigations involving the Serology Division of the State Police Crime Lab is as follows. In 1993, this Court appointed a special judge to supervise an investigation into allegations that Fred Zain², a serologist in the State Police Crime Lab, gave false testimony in criminal prosecutions. In his report to this Court, the special judge found that Zain intentionally and systematically gave inaccurate, invalid, or false testimony or reports. The special judge concluded that Zain's misconduct was so egregious that it should be considered newly discovered evidence in any criminal prosecutions in which Zain offered evidence. In Matter of W.Va. State Police Crime Lab. ("Zain I"), 190 W.Va. 321, 438 S.E.2d 501 (1993), this Court adopted the special judge's recommendation that,

as a matter of law, any testimonial or documentary evidence offered by Zain at any time in any criminal prosecution should be deemed invalid, unreliable, and inadmissible in determining whether to award a new trial in any subsequent habeas corpus proceeding. The only issue in any habeas corpus proceeding would be whether the evidence presented at or prior to trial or prior to the entry of a guilty plea, independent of the forensic evidence presented by Zain, would have been sufficient to support the verdict or plea.

Zain I, 190 W.Va. at 340, 438 S.E.2d at 520.

About a year later, in Matter of W.Va. State Police Crime Lab. ("Zain II"), 191 W.Va. 224, 445 S.E.2d 165 (1994), this Court confronted the issue of whether serologists employed by the Crime Lab, other than Zain, falsified evidence in criminal prosecutions. An investigation was conducted into the work and testimony of these other serologists at the Crime Lab to determine whether any of them committed acts similar to Zain's. The special judge who supervised the inquiry and reviewed the findings of the investigation found some evidence of occasional relatively minor errors, but concluded that these errors did not significantly compromise the criminal prosecutions in which the serologists offered evidence. In light of these findings, the special judge recommended that the investigation be closed. This Court adopted the special judge's findings. In Syllabus Point 3 of Zain II, we held:

Serology reports prepared by employees of the Serology Division of the West Virginia State Police Crime Laboratory, other than Trooper Fred S. Zain, are not subject to the invalidation and other strictures contained in In the Matter of an Investigation of the West Virginia State Police Crime Laboratory, Serology Division, 190 W.Va. 321, 438 S.E.2d 501 (1993).

In 1999, additional allegations arose that a State Trooper knowingly falsely testified about nonexistent serology test results supposedly linking a petitioner in a habeas corpus claim to the crime at issue. As a result, then Chief Justice Starcher entered an administrative order, dated June 10, 1999, in which he directed the Honorable James O. Holliday, a retired circuit court judge:³

(1) to appoint . . . an independent forensics expert to conduct a thorough review of the policies, procedures, and records of the [State Police Serology Lab]; (2) to appoint, if he deems necessary and proper, a special prosecutor to serve as representative of the State of West Virginia in any proceedings arising from this appointment; (3) to appoint, if he deems necessary and proper, a public defender to serve as representative of prisoners whose convictions were obtained, in part, through evidence secured from the [State Police Serology Lab]; (4) to conduct such proceedings as he may deem necessary and proper in furtherance of the investigation; (5) if it is concluded that nonexistent serology testing was reported, to investigate why the [1994 forensics report] did not identify this matter; and (6) to render a written report to [this Court] containing findings of fact, conclusions of law and recommendations regarding actions to be taken in light of the results of the investigation.

Judge Holliday subsequently appointed Kanawha County Public Defender George Castelle as counsel for possible affected prisoners and William Charnock as counsel for the State.⁴ Ten cases were identified for review that involved the tests and trial testimony of serologists other than Zain. Of these ten cases, two involved tests and trial testimony of Zain's assistants while Zain was their supervisor. Mark Stolorow, Executive Director of Orchid Cellmark Laboratories, was appointed to review the selected cases. Following Mr. Stolorow's examination, his initial conclusions were forwarded to Ronald Linhart, an inspector with the American Society of Crime Laboratory Directors and one of the independent experts in the original Zain investigation, to review Stolorow's proposed draft. Both scientists then filed a joint report on December 2, 2004 ("Stolorow/Linhart report").⁵

In a portion of the report that included Stolorow's individual analysis of the investigation results, he found "a significant number of errors in many categories, including documentation omissions, conflicts and...