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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.
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. (See footnote 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.
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: (See footnote 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. (See footnote 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”). (See footnote 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 unreported genetic typing results.” In his
comparison of these findings with those of the earlier investigations of the Crime Lab,
Stolorow opined that “[t]he problems noted [in the current report] vary in degree of
seriousness and frequency, but collectively are not as egregious as those committed by Zain.”
He further found, however that “[i]t would appear that the extent of the errors noted in the
present review is substantially greater than that observed by the . . . investigators in [Zain
II].” In addition, Stolorow indicated that “there was no discovery of evidence that exculpated
an otherwise inculpated defendant.” Finally, he concluded that “[t]here are no smoking guns
as witnessed with the intentional and egregious misconduct of Fred Zain, at least in these 10
cases under investigation.”
In his review of Stolorow's analysis, Linhart disputes Stolorow's
characterization of particular Crime Lab results as “fabrication,” and also disagrees with Mr.
Stolorow's criticism of a serologist's testimony in a specific prosecution. (See footnote 6) Linhart then
concludes that “after reviewing the defects described by Mr. Stolorow in the cases herein
reported, I still do not conclude that there is evidence of misconduct as we defined it.” In the “Conclusions and Recommendations” portion of the report, Stolorow
and Linhart jointly concluded as follows:
The errors found by this investigation were frequent, recurring and multi- faceted, spanning the spectrum of examiners. However, it must be stressed that in only one instance does it appear that erroneous procedures, documentation, reporting or testimony led to a false, but non-probative, association between a defendant and the biological evidence (State v. Gray and Finney). . . . The authors of this report do not ascribe any particular motive, intent or design to the scientists in regard to the errors made . . .
Finally, there is a significant qualitative difference between the errors discovered during this investigative review and the shocking and egregious misconduct documented in Zain I. The intentional and willful malfeasance and reckless disregard of both the truth and good scientific practice exhibited by Fred Zain were not found to exist in these cases among the remaining serologists in the laboratory.
Having made those comments as to our findings, however, the
seriousness of these errors should not be understated. They represent a
divergence from good science and on occasion ethical conduct, and raise a
strong inference that the problems were systemic in the Serology Division.
The interpretation, statements of strength and frequency, and reporting errors
found collectively in the reviewed cases have diverse impact on the individual
cases. Consideration may be given to the determination that the work product
of the serologists other than Fred Zain during the relevant period that these
cases were tested is generally regarded as potentially unreliable. The analysis
of the underlying serological data in each of the cases examined, however,
shows that the results of the tests actually conducted in the reviewed cases,
except where noted, appear to be substantially correct. . . .
After considering the proposed findings of fact and conclusions of law of both
the prisoners and the State, the Honorable Thomas A. Bedell, who succeeded Judge Holliday
as special judge, filed his September 23, 2005, report in which he concluded that “there is
not a scintilla of evidence of intentional misconduct on the part of the serologists who
worked with Fred S. Zain. . . . Although there were some errors identified in cases reviewed,
the Stolorow/Linhart report concluded that the errors were non-probative in the cases in
which they were found.” Because Judge Bedell found no pattern or practice of intentional
misconduct and that the false evidence had no material effect on the jury verdicts, he
concluded that a systematic review of those cases in which persons were convicted upon the
evidence of the serologists, other than Zain, and invalidation of the evidence, as set forth in Zain I, are not warranted.
Thereafter, the prisoners submitted to this Court their objections to Judge
Bedell's report in which they vehemently disagree with his finding that there is no evidence
of intentional misconduct on the part of other employees of the Crime Lab. The prisoners
offered their own proposed conclusions of law as well as proposed recommendations. The
State responded to the prisoners' objections and urged this Court to adopt the findings of the
special judge.
The State, on the other hand, agrees with the special judge's conclusion that
there is no evidence that serologists, other than Zain, committed intentional misconduct and
points to Stolorow and Linhart's finding that “the intentional and willful malfeasance and
reckless disregard of both truth and good scientific practice exhibited by Fred Zain were not found to exist in these cases.” Thus, concludes the State, the special judge properly declined
to invalidate the work in question and recommend a systematic review of cases in which
serology evidence was offered.
After careful review of the Stolorow/Linhart findings, the special judge's
report, and the briefs of the prisoners and the State, this Court concludes that there is
insufficient evidence of intentional misconduct to justify invalidating the work of serologists
other than Zain. In Zain I, this Court decided that Zain's work warranted a presumption of
invalidity and a systematic review of cases in which serology evidence was offered due in
large part to the finding that Zain engaged in a regular practice of falsifying or
misrepresenting scientific results in his testimony. In contrast, no finding was made in the
instant case that serologists other than Zain engaged in such intentional misconduct.
For example, in his comparison of the extent of Crime Lab deficiencies in Zain
I and the instant case, Stolorow found that “[t]he problems noted [in the instant investigation]
vary in degree of seriousness and frequency, but collectively are not as egregious as those
committed by Zain.” He further indicated that “[t]here are no smoking guns as witnessed
with the intentional and egregious misconduct of Fred Zain, at least in these 10 cases under
investigation.”
Significantly, in those instances where Stolorow stridently criticized the Crime
Lab's work, Linhart often disagreed with Stolorow. As noted above, in response to
Stolorow's characterization of the Crime Lab employees' reporting of specific test results as
“fabrication,” Linhart indicates that “it seems inappropriate to characterize this as fabrication
of results.” Linhart further disputed Stolorow's criticism of Trooper Myers' testimony in the Farmer case. Again, after reviewing the defects described by Stolorow in the ten cases
examined by him, Linhart concluded that “I still do not conclude that there is evidence of
misconduct as we defined it.”
Finally, Stolorow and Linhart both failed to ascribe any particular motive,
intent or design to the Crime Lab employees in regard to the errors they made, noting that the
errors could have been caused by a wide variety of factors. In their joint conclusion and
recommendation, they recognized “a significant qualitative difference between the errors
discovered during this investigative review and the shocking and egregious misconduct
documented in Zain I,” and expressed the opinion that “[t]he intentional and willful
malfeasance and reckless disregard of both the truth and good scientific practice exhibited
by Fred Zain were not found to exist in these cases among the remaining serologists in the
laboratory.” Further, after noting the significant flaws found in the Crime Lab's work,
Stolorow and Linhart concluded that “[t]he analysis of the underlying serological data in each
of the cases examined, however, shows that the results of the tests actually conducted in the
reviewed cases, except where noted, appear to be substantially correct.”
An additional reason for this Court to reject a presumption of invalidity of the
Crime Lab's work and a systematic review of the prisoners' cases is the complete lack of
evidence that inaccurate serology evidence affected the outcome of any trial reviewed below.
In Syllabus Point 2 of Zain I, we held that “[a]lthough 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.” In Zain
II, an important factor in our decision not to award a presumption of invalidity and a
systematic review of the cases was the special judge's conclusion that “there is no indication
that the occasional errors of relative insignificance committed by these officers affected, to
any discernible degree, the prosecutions of the cases in which they gave evidence.” 191
W.Va. at 227, 445 S.E.2d at 168.
Significantly, in this case, Stolorow and Linhart jointly concluded
that,
it must be stressed that in only one instance does it appear that erroneous
procedures, documentation, reporting or testimony led to a false, but non-
probative, association between a defendant and the biological evidence . . . .
In three cases, it appears that erroneous procedures, documentation, reporting
or testimony led to the false, but non-probative, association between a victim
and the biological evidence[.]
The finding that inaccurate serology evidence did not affect the outcome of the prosecutions
reviewed indicates a lack of evidence that the most important element in the setting aside of
a conviction is present in this case. Accordingly, because Stolorow and Linhart did not find
the type of systematic and intentional misconduct discovered in Zain I, and because there is
no evidence that serology evidence affected the prosecutions of any of the cases investigated,
we adopt the special judge's report to the extent that it recommends that the evidence offered
by serologists, other than Zain, is not subject to invalidation and systematic review of those
cases in which serology evidence was presented. Therefore, this Court holds, as we did in Zain II, that,
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).
This, however, does not end our consideration of the issue before us. As this Court noted in Zain II, and as Judge Bedell indicated in his report to this Court, the determination that the serology evidence at issue is not subject to the invalidation strictures and systematic review authorized in Zain I does not preclude prisoners against whom these serologists offered evidence from seeking habeas corpus relief under our Post-Conviction Habeas Corpus statute, W.Va. Code § 53-4A-1, et seq. In such a proceeding, a prisoner who challenges his or her conviction must prove that the serologist offered false evidence in his or her prosecution. Also, the prisoner must satisfy the following standards indicating that a new trial is warranted:
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).
In addition, because of the significant number, frequency, and types of errors
which Stolorow discovered in the work of the Crime Lab serologists, this Court finds it
necessary to enact additional safeguards to ensure that prisoners against whom serologists
offered evidence receive a thorough, timely, and full review of their challenges to the
serology evidence. To this end, we direct the following. (See footnote 9)
First, 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).
Second, 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.
Third, this Court suspends to a limited degree the rules of res judicata that
generally apply to a petition for a writ of habeas corpus subjiciendum. According to W.Va.
Code § 53-4A-1 (1967), a prisoner may file a petition for a writ of habeas corpus, inter
alia,
if and only if such contention or contentions and the grounds in fact or law
relied upon in support thereof have not been previously and finally adjudicated
. . . in the proceedings which resulted in the conviction and sentence, or in a
proceeding or proceedings on a prior petition or petitions filed under the
provisions of this article, or in any other proceeding or proceedings which the
petitioner has instituted to secure relief from such conviction or sentence.
The statute goes on to explain in subpart (b),
For the purposes of this article, a contention or contentions and the
grounds in fact or law relied upon in support thereof shall be deemed to have
been previously and finally adjudicated only when at some point in the
proceedings which resulted in the conviction and sentence, or in a proceeding
or proceedings on a prior petition or petitions filed under the provisions of this
article, or in any other proceeding or proceedings instituted by the petitioner
to secure relief from his conviction or sentence, there was a decision on the
merits thereof after a full and fair hearing thereon and the time for the taking
of an appeal with respect to such decision has not expired or has expired, as
the case may be, or the right of appeal with respect to such decision has been
exhausted, unless said decision upon the merits is clearly wrong.
In order to guarantee that the serology evidence offered in each prisoner's
prosecution will be subject to searching and painstaking scrutiny, this Court now holds that
a prisoner who was convicted between 1979 and 1999 (See footnote 10) 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. (See footnote 11)
As a final matter, this Court wishes to commend Judge Holliday whom this
Court originally appointed to conduct this renewed investigation of the Crime Lab. We
further wish to thank Judge Bedell, who succeeded Judge Holliday as special judge, for the
quality of his work in conducting the investigation and in the report submitted to this Court.
We also wish to recognize the able assistance given to the special judges by George Castelle,
the Kanawha County Public Defender, counsel for the prisoners; William Charnock, who
was originally appointed by Judge Holliday as counsel for the State; and Philip W. Morrison,
II, who succeeded Mr. Charnock as counsel for the State.
Findings of Special Judge Adopted as Modified.