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Pennsylvania Supreme Court Rules FBI Admission Microscopic Hair Analysis Wrong 90% of the Time is Newly Discovered Fact Allowing Untimely Post-Conviction Relief Petition

by Christopher Zoukis

The Pennsylvania Supreme Court allowed the post-conviction relief petition of a prisoner on death row to go forward to hearing based on a highly unusual “newly discovered fact,” viz., a 2015 FBI press release (“Press Release”) that admitted, for the first time, that microscopic hair analysis testimony from FBI forensic technicians contained errors in at least 90 percent of cases.

In 2002, David Chmiel was convicted and sentenced to death for three murders. At trial, Pennsylvania State Police Forensic Technician George Surma testified that two hairs retrieved from a mask found at the crime scene were “microscopically similar” to Chmiel’s hair. The prosecution relied on this evidence to convict Chmiel, saying in opening and closing that the hairs found at the crime scene were a “microscopic match.”

On June 18, 2015, Chmiel filed a post-conviction relief petition based on the press release and an April 18, 2015 Washington Post article (“Article”) about the press release, in which legal analysts characterized the FBI’s admission 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.”

Chmiel acknowledged that his petition was not timely under the Post-Conviction Relief Act (“PCRA”). However, he argued that he was nevertheless entitled to relief pursuant to the timeliness exception for newly discovered facts under 42 Pa.C.S. § 9545(b)(1)(ii). The PCRA court rejected his reliance on the Press Release as a newly discovered fact and dismissed his petition as untimely. On appeal, the Pennsylvania Supreme Court reversed and remanded for further proceedings.  

The Court began its analysis by noting that a PCRA petition brought under Pennsylvania law must be filed within one year of final judgment, or in the case of newly discovered facts, within 60 days of the discovery. The newly discovered facts exception “requires that the ‘facts’ upon which such a claim is predicated must not have been known to appellant, nor could they have been ascertained by due diligence.” The Commonwealth argued, and the lower court agreed, that the suspected problems with microscopic hair analysis had been known at the time of Chmiel’s trial, and thus his petition was untimely.

The Supreme Court disagreed, highlighting the significant difference between previous reports of problems with microscopic hair analysis and an FBI press release in which the agency admitted in public, for the first time, that microscopic hair analysis testimony by its technicians was erroneous in almost every case. Moreover, the press release acknowledged that FBI personnel had “trained many state and local analysts to provide the same scientifically flawed opinions in state criminal trials.” Both of these items constituted the kind of newly discovered facts contemplated by the timeliness exception.

“With these newly discovered, material facts, the FBI press release indicates that Surma’s trial testimony may have exceeded the limits of science and overstated to the jury the significance of the microscopic hair analysis,” wrote the Court.

The Supreme Court distinguished this case from Commonwealth v. Edmiston, 65 A.3d 339 (Pa. 2013), which the PCRA court relied upon in ruling that the exception for newly discovered facts did not apply to Chmiel’s petition and was therefore untimely. In Edmiston, the petitioner filed an untimely PCRA petition, citing the newly discovered facts exception. The petitioner relied upon the landmark 2009 report issued by the National Academy of Sciences that cast serious doubt on the credibility of several forensic sciences and specifically concluded that “there was no scientific support for the use of microscopic hair analysis for individualization that is not accompanied by mitochondrial DNA analysis” as the newly discovered fact. The PCRA court and the Supreme Court rejected his invocation of the exception because the 2009 report based its conclusions on the examination of publicly available studies and data, so the report itself did not constitute any newly discovered facts that were not already in the public domain.

In contrast to the situation in Edmiston, the press release did, in fact, make new facts available to the public for the first time. Consequently, Edmiston was distinguishable from the present case, and the exception for newly discovered facts applied to Chmiel’s PCRA petition.

Accordingly, the Pennsylvania Supreme Court reversed the PCRA court’s order of dismissal of Chmiel’s PCRA petition as untimely and remanded the case for further proceedings. See: Commonwealth v. Chmiel, 173 A.3d 617 (Pa. 2017). 

Related legal case

Commonwealth v. Chmiel




 

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