Investigation of West Virginia State Police Crime Laboratory, Serology Div., Matter of

• Court: West Virginia Supreme Court
• Writing for the Court: MILLER; Holliday's
• Citation: Investigation of West Virginia State Police Crime Laboratory, Serology Div., Matter of, 438 S.E.2d 501, 190 W.Va. 321 (W. Va. 1993)
• Decision Date: 10 November 1993
• Docket Number: No. 21973,21973
• Parties: In the Matter of an INVESTIGATION OF the WEST VIRGINIA STATE POLICE CRIME LABORATORY, SEROLOGY DIVISION. . Report

Page 501

438 S.E.2d 501

190 W.Va. 321

In the Matter of an INVESTIGATION OF the WEST VIRGINIA STATE POLICE CRIME LABORATORY, SEROLOGY DIVISION.

No. 21973.

Supreme Court of Appeals of West Virginia.

Report Submitted Nov. 4, 1993.

Opinion Decided Nov. 10, 1993.

Syllabus by the Court

1. " ' "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, State v. Frazier, 162 W.Va. 935, 253 S.E.2d 534 (1979), quoting, Syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).' Syl. pt. 1, State v. King, 173 W.Va. 164, 313 S.E.2d 440 (1984)." Syllabus Point 1, State v. O'Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993).

2. 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.

3. "Where improper evidence of a nonconstitutional nature is introduced by the State in a criminal trial, the test to determine if the error is harmless is: (1) the inadmissible evidence must be removed from the State's case and a determination made as to whether the remaining evidence is sufficient to convince impartial minds of the defendant's guilt beyond a reasonable doubt; (2) if the remaining evidence is found to be insufficient, the error is not harmless; (3) if the remaining evidence is sufficient to support the conviction, an analysis must then be made to determine whether the error had any prejudicial effect on the jury." Syllabus Point 2, State v. Atkins, 163 W.Va. 502, 261 S.E.2d 55 (1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1081, 63 L.Ed.2d 320 (1980).

4. " 'Where the guilty plea is sought to be withdrawn by the defendant after sentence is imposed, the withdrawal should be granted only to avoid manifest injustice.' Syl. pt. 2, State v. Olish, 164 W.Va. 712, 266 S.E.2d 134 (1980)." Syllabus Point 2, State v. Pettigrew, 168 W.Va. 299, 284 S.E.2d 370 (1981).

MILLER, Justice:

This case is an extraordinary proceeding arising from a petition filed with this Court on June 2, 1993, by William C. Forbes, Prosecuting Attorney for Kanawha County, requesting the appointment of a circuit judge to conduct an investigation into whether habeas corpus relief should be granted to prisoners whose convictions were obtained through the willful false testimony of Fred S. Zain, a former serologist with the Division of Public Safety. On June 3, 1993, in response to the petition, we entered an order appointing the Honorable James O. Holliday, a retired circuit judge, to supervise an investigation of the Serology Division at the West Virginia State Police Crime Laboratory. ¹ On November 4, 1993, after an extensive, five-month investigation, Judge Holliday filed his report with this Court, a copy of which is attached as an Appendix to this opinion.

The report chronicles the history of allegations of misconduct on the part of Trooper Zain, beginning with the wrongful conviction of Glen Dale Woodall, who was eventually released after DNA testing conclusively established his innocence. ² The report further discusses allegations of misconduct and incompetence by Trooper Zain's subordinates during his tenure with the Division of Public Safety. Finally, the report summarizes the findings of James McNamara, Laboratory Director of the Florida Department of Law Enforcement, and Ronald Linhart, Supervisor of Serology in the Crime Laboratory for the Los Angeles County Sheriff's Department, who were selected by Barry Fisher, Chairman of the Laboratory Accreditation Board of the American Society of Crime Laboratory Directors (ASCLD), to conduct an analysis of the policies, procedures, practices, and records of the Serology Division during Trooper Zain's tenure.

The ASCLD report and the deposition testimony of fellow officers in the Serology Division during Trooper Zain's tenure support the multiple findings of fact by Judge Holliday regarding Trooper Zain's long history of falsifying evidence in criminal prosecutions. Specifically, the report states:

"The acts of misconduct on the part of Zain included (1) overstating the strength of results; (2) overstating the frequency of genetic matches on individual pieces of evidence; (3) misreporting the frequency of genetic matches on multiple pieces of evidence; (4) reporting that multiple items had been tested, when only a single item had been tested; (5) reporting inconclusive results as conclusive; (6) repeatedly altering laboratory records; (7) grouping results to create the erroneous impression that genetic markers had been obtained from all samples tested; (8) failing to report conflicting results; (9) failing to conduct or to report conducting additional testing to resolve conflicting results; (10) implying a match with a suspect when testing supported only a match with the victim; and (11) reporting scientifically impossible or improbable results." (Footnote omitted).

The report by Judge Holliday further notes that the ASCLD team concluded that these irregularities were " 'the result of systematic practice rather than an occasional inadvertent error' " and discusses specific cases that were prosecuted in which Serology Division records indicate that scientifically inaccurate, invalid, or false testimony or reports were given by Trooper Zain.

In addition to investigating what occurred during Trooper Zain's tenure in the Serology Division, Judge Holliday also explored how these irregularities could have happened. The report notes that many of Trooper Zain's former supervisors and subordinates regarded him as "pro-prosecution." The report further states: "It appears that Zain was quite skillful in using his experience and position of authority to deflect criticism of his work by subordinates." Although admittedly beyond the scope of the investigation, the report by Judge Holliday notes that there was evidence that Trooper Zain's supervisors may have ignored or concealed complaints of his misconduct. Finally, the report discusses ASCLD criticisms of certain operating procedures during Trooper Zain's tenure, which the report concludes "undoubtedly contributed to an environment within which Zain's misconduct escaped detection." According to the report, these procedural deficiencies included:

"(1) no written documentation of testing methodology; (2) no written quality assurance program; (3) no written internal or external auditing procedures; (4) no routine proficiency testing of laboratory technicians; (5) no technical review of work product; (6) no written documentation of instrument maintenance and calibration; (7) no written testing procedures manual; (8) failure to follow generally-accepted scientific testing standards with respect to certain tests; (9) inadequate record-keeping; and (10) failure to conduct collateral testing."

Judge Holliday's report correctly concludes that Trooper Zain's pattern and practice of misconduct completely undermined the validity and reliability of any forensic work he performed or reported, and thus constitutes newly discovered evidence. It further recognizes the appropriate standard of review in cases of newly discovered evidence as set forth by this Court most recently in Syllabus Point 1 of State v. O'Donnell, 189 W.Va. 628, 433 S.E.2d 566 (1993):

" ' "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, State v. Frazier, 162 W.Va. 35, 253 S.E.2d 534 (1979), quoting, Syl. pt. 1, Halstead v. Horton, 38 W.Va. 727, 18 S.E. 953 (1894).' Syl. pt. 1, State v. King, 173 W.Va. 164, 313 S.E.2d 440 (1984)."

See also Annot., Perjury or Wilfully False Testimony of Expert Witness as Basis for New Trial on Ground of Newly Discovered Evidence, 38 A.L.R.3d 812 (1971).

Newly discovered evidence is not the only ground on which habeas relief can be afforded. It has long been recognized by the United States Supreme Court that it is a violation of due process for the State to convict a defendant based on false evidence. Chief Justice Warren, writing for a unanimous court in Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217, 1221 (1959), summarized this principle:

"First, it is established that a conviction obtained through use of...