WEST VIRGINIA RECORD

CHARLESTON – Thirteen years after a shocking discovery that Trooper Fred Zain of the West Virginia State Police Crime Laboratory provided false and inaccurate evidence, a cloud still hangs over the crime lab.

The state Supreme Court of Appeals on June 16 unanimously called on "appropriate authorities" to consider removing the crime lab from State Police supervision and placing it under an independent agency with an independent supervisory board.

The Justices enacted a special habeas corpus procedure so that any prisoner convicted on serology evidence from 1979 to 1999 may petition for a new trial.

Serology is the study of blood and other body fluids. In recent years DNA analysis has replaced it as a tool of criminal investigation.

The Justices ruled that a prisoner may file a petition even if a court previously rejected a challenge to the evidence. Normally a prisoner can challenge evidence only once.

Justice Spike Maynard wrote for the Court that the special procedure would guarantee "searching and painstaking scrutiny" of serology evidence.

The crime lab scandal broke in 1993, when attorneys for prisoners accused serologist Zain of testifying falsely in criminal prosecutions.

Zain had worked as a State Police chemist from 1979 to 1989.

The Supreme Court of Appeals appointed retired Circuit Judge James Holliday to supervise an investigation of Zain.

Holliday found that Zain intentionally and systematically gave inaccurate, invalid or false testimony or reports.

Holliday recommended that, "…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 ..."

The Supreme Court of Appeals adopted Holliday's recommendation.

A year later the Supreme Court of Appeals again picked Holliday to investigate other crime lab employees.

Holliday found occasional errors but concluded that the errors did not significantly compromise criminal investigations.

In 1999 Chief Justice Larry Starcher called on Holliday again in the wake of new allegations that a trooper testified about serology tests that never existed.

Holliday appointed Kanawha County public defender George Castelle as counsel for affected prisoners and William Charnock as counsel for the state.

Holliday selected 10 cases for review. Two cases involved tests and testimony of Zain's assistants while Zain supervised them.

Holliday appointed forensics expert Mark Stolorow, executive director of Orchid Cellmark Laboratories, to review the cases.

Holliday forwarded Stolorow's initial conclusions to Ronald Linhart of the American Society of Crime Laboratory Directors. Linhart had assisted in the Zain investigation.

In a 2004 report Stolorow branded one result as a fabrication and another as a hoax, but wrote that he found no evidence that would exculpate a defendant.

Linhart wrote that he found defects but no evidence of misconduct.

They declared that the errors they found "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."

They sent the report to Harrison County Circuit Judge Thomas Bedell, who had replaced Holliday as special judge.

Bedell adopted their conclusions last September, finding no intentional misconduct and no material effect on jury verdicts.

He decided that the facts did not warrant invalidation of evidence and systematic review of cases as in the Zain investigation.

Public defender Castelle submitted objections to the Supreme Court of Appeals, arguing that the report of Stolorow and Linhart clearly showed intentional misconduct.

Castelle wrote that the report did not validate the evidence because there was no way to know what the tests would have shown if the crime lab had conducted tests.

Castelle recommended removal of the crime lab from State Police supervision. He called for creation of a standing commission to review and prevent wrongful convictions.

Attorney Philip Morrison II, who had replaced Charnock as counsel for the state, urged the Supreme Court of Appeals to adopt Bedell's findings.

The Justices agreed with Bedell that there was not enough evidence of intentional misconduct to invalidate the work of anyone but Zain.

The Justices pointed out "the complete lack of evidence that inaccurate serology evidence affected the outcome of any trial…"

Although the Justices did not grant invalidation and systematic review, they did not preclude prisoners from seeking relief in a habeas corpus proceeding.

Maynard wrote that because of the number and types of errors, "... 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."

He wrote, "The circuit court is to review the serology evidence presented by the prisoner with searching and painstaking scrutiny."

If a judge finds false evidence, Maynard wrote, the judge must decide whether the prisoner has satisfied five elements that any prisoner must satisfy to win a new trial on the basis of newly discovered evidence.

First, the evidence must have been discovered since the trial.

Second, due diligence would not have discovered the evidence before the verdict.

Third, it must be more than additional evidence of the same kind and to the same point as in the trial.

Fourth, it must be "such as ought to produce an opposite result at a second trial."

Fifth, it must have an object beyond discrediting or impeaching a prosecution witness.

In a final footnote Maynard wrote that while removing the crime lab from State Police supervision and creating an independent supervisory board were beyond the Court's purview, the proposals "deserve further consideration by the appropriate authorities."