it's got two minutes charlotte halderman whitmore also a former clerk of this court from the pennsylvania innocence project is a seventy seven year old korean born naturalized u s citizen who has been incarcerated for over twenty one years on a sentence of life without parole for an arson involving the death of his own daughter the issue that we're here principally to discuss is this is a person confined in violation of the constitution of the united states if his conviction depends entirely on expert opinion testimony that newly developed post appeal uncontested scientific consensus holds to be entirely unreliable we say that the continuing confinement of such a person deprives him of liberty without due process of law in two different ways one is an application of the long est d due process principle that you deprivation of liberty cannot rest on fundamentally unreliable evidence this principle of due process was first articulated by the supreme court in one nine hundred forty eight in townsend versus burke it was reaffirmed in one nine hundred seventy two in the tucker case it's been applied by this court in any number of cases many of them sensory cases type such cases as caps and first and many others and in many turn i have mr goldberger is that the state courts found that this evidence went solely to credibility affidavit and pennsylvania as i understand it follows the frye test for admissibility of expert opinions and i didn't see anything that would suggest that the opinions that were given by the commonwealth experts in this case would not be admissible at the present time i know that's implicit in your contention but wouldn't the state courts have had to go further and say not only did it go to credibility but it would have preferred that the state of the science now is that this testimony that was presented it would not have been admissible because of that fund but the fundamental error of misunderstanding this testimony the new scientific evidence as merely impeaching a completely and reasonable interpretation of that evidence prevented the state court by its own mistake from reaching the question that your honor raises about the fry test or any other if the evidence is merely impeaching they would not logically even get to the to discuss the state law question but the same error prevented the court logically from reaching every issue that was presented including the federal constitutional issues but there wouldn't be a constitutional question raised by the fact that it may be inadmissible under daubert but would be admissible under frye that's true are that's true if it was properly admissible under frye but even then the federal court could ask if the issue was was preserved and exhausted as it was here by concession or whether this evidence was nevertheless fundamentally unreliable and therefore fail due process the fact that evidence may be admissible under rule of evidence does not prove that it's constitutional constitutionally permissible certainly to support a conviction for murder and life sentence this is a freestanding crime and therefore as far as i can tell the supreme court has assume without deciding that we can hear a freestanding actual innocence  with the first one because it's easier and you don't have to go somewhere the supreme court hasn't gone to say that a conviction that rests on unreliable evidence violates due process but a conviction that is also a due process violation continuing due process violation when it shocks the conscience and what could be more shocking to the conscience contrary to fundamental principles of due process and universal justice then that the innocent may not go free well this is not a death case though no but the supreme court has never said that there is a different due process standard for death or imprisonment and certainly life without understand there which which order all the cases have been the things i know that's not true i was born in which the same principle was articulated by the supreme court in exactly the same terms and reserved in exactly the same terms was not a defer to the extent that congress directs you to defer which is pursuant to twenty two fifty four d and congress says if the court if the state court and it's not the piece you're a court really but the superior court that we look to for this purpose if the state court has reached the merits of the federal question then we defer unless their decision was on reasonable if they would not reach the merits we don't defer at all our position are we say that because of this mistaken correct that's right because of the mistaken ruling on saying that the new science isn't merely impeaching did not reach the merits of the federal issue they thought that precluded all the issues in the case that negated of a misapplication law we say it's not but if it was if this was the superior court way of addressing all the issues including the federal issue then it was certainly was unreasonable it's unreasonable as a matter of fact and law that to say that  evidence which is science of a scientific nature that says where scientists say and not just some scientists with some theory but every credible and competent scientist in the field says today that what we thought in our field twenty years ago was wrong that's not a difference of opinion that's science there's this is it's this is the way science works and you don't have when when the owner  that it that the smoke deposits in the lungs and throat would be consistent either with conflagration or pressure on the throat never opined that there was now tells us is perfectly consistent with all the rest of the evidence the record that just starves me here is the failure of even though the state agreed the failure of the trial to let your expert see evidence yes what tied the hands of the expert in the state court where we offered the evidence was the unexplained expert from being able to opine whether the fire was accidental he's too honest to say i can say this evidence was actually that the fire was accidental without looking at the debris and the physical evidence if we see our record the night initially that you rediscover quest without prejudice the jury knew your discovery request i dont we because what we did what we did was we first tried to just send an investigator out to see if they  we could get access that was not possible we filed a motion with the judge it was denied and i have to say i don't recall that it was denied without prejudice but what when i appeared before the p c r a court with the affidavit ready for the hearing and the commonwealth said we don't need a hearing we don't have an expert we don't want to cross examine we don't contest the affidavit we're saying it's merely impeaching and that's our position that was the end of it we if we were to send it back well search is the evidence still available we have no ioannes or to that i think this is you know it's in going on for twenty years i've been in the case over ten years that was almost ten years ago that we were denied the competent expert could say that there was a deliberately set fire now let's go back to the evidence that we don't know whether it was well not if it doesn't exist there might be spoliation we have to think about that we shouldn't make that assumption so if we were to allow if we were going to reverse the failure to have an evidentiary hearing ship with the evidence does that take care of your what you really want you know because my client is innocent and he's been in prison twenty one years and he should be released well we have very little he's in a sense but you could remand with directions to grant the writ on the present record because of the showing that we made and the positions of the commonwealth has taken and the unreasonable ness of the superior court opinion thank you again with directions to to grant the rich at the very least we're entitled to the hearing thank you of the district attorney and i do not believe it still does we have not actually checked with the pennsylvania state police why wouldn't it i mean they knew this this man has been is in prison for life why would they have kept the evidence i cannot answer that i have told her asked my like i said the district attorney and he has informed me that this if this does come back we are unable to try because he does not believe the evidence exists that he know i did doesn't believe i did is not belief we do not know for certain because we have not actually checked with the state call you haven't checked to see if it's produce the evidence shouldn't we presume that it's not favorable to you isn't that what the law says i don't think we can go that far you are because i don't think we have a rock solid new evidence new scientific basis for this i think we have an expert opinion that is as in the line with the thinking of the trial court disappearing court and the district court that this is merely credibility we have an expert that even says in this affidavit towards the back end of it and i believe it's  precision calls into question the credibility and it goes on of the three witnesses is a credibility argument well not a d n a orkney are where we say with one in one trillion that this is actually the by looking at this fiber of this blood sample this is not the individual well there is scientific thought that the way in which arson use of be understood to be happen isn't i mean i at and we were very concerned in all impact but we let it go because we didn't have as much as we have in this case i don't i don't know how you can tell us that i mean we did new york there was an article in the new york times in quite a while you are on the new ice and thinking so there is new quote much less significant that's not the same as saying it's misleading or false at this point time because ultimately what we have is evidence taken from a crime scene in and scientifically evaluated and then they use that to formulate their own opinion so obviously every expert we have potentially could have a different opinion do you agree that if the conclusion was reached that the old science has been refuted that there could be a free standing claim of actual innocence prot under section twenty two fifty four i think we would have to after have like you said previous to appellant that we would have to say this new found scientific pattern is now except under fry and therefore and go further by saying the old way was completely and utterly wrong misleading and or false at this point time i don't think we have that here we have an evolution science but it's not definitive what was the other evidence of your of the fat while you i believe it was you that hit on the fact of the seller and that was admitted to being on  the actual defendant would testified at trial that he fell down or got a liquid on his pants it later turned out to be an accelerant defense counsel who's now deceased also testified at the p c r a year i believe in ninety three that i had to go with that because that's what my defense vent was telling me that he went back and he fell down and got excel or on his pants he got liquid on mt that turned out to be excel or first count the one on testify that my only theory was that we originally bought thought this was an accident but my expert would not come to that conclusion and therefore i was stuck with this argument because i had the excel or their theory was that the victim was the one that put the excel it into play but in reality we claim obviously that the defendant did it but he still stuck with that because he had an expert at that time  that reviewed all the commonwealth evidence presented and it's interesting if you actually look at the the mr libby's opinion he goes on to say that some of the some of the statements in his his affidavit go and i quote absolutely no basis in science nor is a report anywhere in the literature he was talking about mr jones as basis of a three hundred degree fire and he makes numerous other references about the sciences packwood saying he has lacked any scientific justification it one can conclude that the expert used by the defense of the time would at least pick up on that because there is a revolution in that one aspect of mr libby's argument was that what the commonwealth argued would actually defy the liquid defy the defy the laws of gravity again an expert at that time would pick up on that why is a significant because this is  understand however i believe we're not there scientifically i believe we have an evolution of science but i don't think it's the point where it's d n a where it's dispositive of it where it says without by by a preponderance of the evidence this man is not the one that did it because we've looked at this but we're not there because we have an expert's opinion on that and it's interesting if you and i was thinking about this is going on a drive down here if we do have an evolution in science and we have this person that comes out and says this is all wrong then why not just state that why not just stated in the affidavit and say that affidavits just state that the science has now evolved to the point where the previous science use is erroneous but he has a bomb beyond that by attacking the credibility in numerous aspects of that and they're outlined in spirit court opinion but you put nothing that because of lead you have to look for it i don't know if my boss there or not basically that's what i come down to because i don't have that power i can't understand why the state wouldn't have point out a lot of effort to try to find if you knew this case was coming before this court jester why you that you wouldn't have sent somebody out to really make a good luck for i cannot answer that you know i don't know all i was told when i asked about  being remanded was that we cannot try this case because it is over twenty years old and i'm not sure of the exhibit the evidence still exists in the supreme court in two thousand and nine in a case called in re davis  had an original hevia squawkers petition filed with it it sent it back to the district court to conduct a hearing on the question of actual innocence is that we're at right now should we send this back to the district court to conduct a hearing on this actual innocence claim i don't think we are because again we do not have enough science to say the old science is no good well justice scalia descended in that and said he didn't think there was any chance that the petitioner would win but still that least the petitioner got a hearing on his actual innocence calling maybe but if there was an actual constitutional violation i may concede that but again i don't think we have a due process violation here because i do not believe we have entirely new evidence that discredits the old evidence yet and try never put anything and again you are still rely on the fact that this is a credibility  go back and therefore reevaluating evidence that we don't do not know exists and because you are not looked i understand i am but again we cannot read we go we do it and again this is ultimately comes down to a say can you try the question of whether or not the science has changed so much that they had originally testimony would not have been a missing admissible and can't that be tried by doing that my issue the district court would have to address i think that's my point i don't think we're at that point so we don't require hearing if we were at the point where we can say that it's accepted scientifically that not only this is new evidence but it clearly you disproves the old that it's the same the old evans is now misleading leontine affidavit does not suggest that the testimony of the witnesses the trial was would be viewed today as much less science significant as my friend mr paula suggests rather what he said in paragraph thirty the conclusion of his forty one page affidavit is this using today's standards there is no credible evidence that would lead a competent investigator to conclude that the fire was intentionally set it's an equal yes in passing in his forty page affidavit he pointed out a few places where he also thought the testimony at trial was wrong or law credible under then existing standards we did not rely on those passages in the affidavit in any measure in support of either of our due process claims the expert because he is a scientist felt compelled to say that because it was part of his opinion but it's not the basis of this case the basis of the case is there is no credible evidence by today's standards that any expert would say what those people said at the trial nor did anyone say there was consistent with any number of other hydrocarbons including what happens when a roof is executed to a fire and the roofing material starts to melt down into the room there was water all over the floor because  was mentally ill and had a water obsession have left the water running and flooded the bathroom so the floor yes there was liquid on the floor yes there was hydrocarbon in the room because this is what happens during a fire but no one said accelera remand if i may just conclude if you remain for hearing and i i don't think it's necessary because the commonwealth declined their opportunity to offer evidence on september sixth two thousand and five when we stood in front of the p c or a court i stood there repulses predecessor stood there and they said we don't have an expert we don't even want to cross examine mr leontine this is just impeachment that's just not right and that was the time congress says the fact finding is to be in state court we offered to me find the facts in state court more than five years ago thank you and that's done your headlights on thank you