IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALAN BASS, §

§

§ No. 218, 2022

Defendant Below, Appellant, §

§

§ Court Below: Superior Court

v. § of the State of Delaware

§

§

STATE OF DELAWARE, § I.D. No. 83000508DI (N)

§

§

Appellee. §

§

Submitted: April 19, 2023

Decided: June 20, 2023

Before SEITZ, Chief Justice; VALIHURA, and TRAYNOR, Justices. 

Upon appeal from the Superior Court. AFFIRMED.

Patrick J. Collins, Esquire, Collins & Price, Wilmington, Delaware for Appellant. 

Brian Arban, Esquire, Delaware Department of Justice, Wilmington, Delaware for 

Appellee. 

VALIHURA, Justice:
2

I. Introduction

In June 1983, a Superior Court jury found Alan Bass (“Bass”) guilty of two counts 

of Rape First Degree, three counts of Kidnapping First Degree, two counts of Robbery First 

Degree, one count of Attempted Robbery First Degree, two counts of Burglary Second 

Degree, and one count of Burglary Third Degree. The Superior Court sentenced Bass to 

five consecutive life sentences plus 45 years in prison. Bass appealed. In September 1985, 

this Court affirmed his convictions.1 The rapes, kidnappings, robberies, and burglaries 

were committed in Wilmington and Claymont between November 1981 and August 1982. 

Before the instant postconviction motion on appeal, Bass filed six motions for 

postconviction relief.2 All six motions were denied. After Bass’s six prior Rule 61 

motions, on April 20, 2015, the Federal Bureau of Investigation (“FBI”), the United States 

Department of Justice (“USDOJ”), the Innocence Project, and the National Association of 

Criminal Defense Lawyers issued a joint statement (the “Joint Statement”) in which the 

1 Bass v. State, 505 A.2d 451, 1985 WL 188333 (Del. Sept. 20, 1985) (TABLE); App. to Opening 

Br. at A699–708 (Order Denying Direct Appeal and Affirming Superior Court Judgment, Sept.

20, 1985) [hereinafter Denial of Direct Appeal]. 

2

See Bass v. State, 561 A.2d 466, 1989 WL 47282 (Del. Apr. 5, 1989) (TABLE) (affirming denial 

of first motion for postconviction relief); Bass v. State, 634 A.2d 938, 1993 WL 478076 (Del. Nov. 

5, 1993) (TABLE) (affirming denial of second motion for postconviction relief); Bass v. State, 710 

A.2d 217, 1998 WL 231270 (Del. May 1, 1998) (TABLE) (affirming denial of third motion for 

postconviction relief); Bass v. State, 829 A.2d 935, 2003 WL 21810837 (Del. Aug. 4, 2003)

(TABLE) (affirming denial of fourth motion for postconviction relief); Bass v. State, 67 A.3d 

1022, 2013 WL 2398580 (Del. May 31, 2013) (TABLE) (affirming denial of fifth motion for 

postconviction relief). Bass took no appeal from the denial of his sixth motion for postconviction 

relief. See State v. Bass, 2014 WL 4793005 (Del. Super. Sept. 26, 2014) (denial of sixth motion 

for postconviction relief). Bass also unsuccessfully petitioned the United States District Court for 

the District of Delaware for federal habeas relief. Bass v. Redman, C.A. 89-278, slip op. (D. Del. 

June 19, 1990) (recommending denial of petition for federal habeas relief), adopted, (D. Del. Dec. 

26, 1990) (ORDER), cert. of appealability denied, No. 91-3043, slip op. (3d Cir. Apr. 5, 1991). 
3

FBI announced the results of a years-long investigation into whether trial testimony by FBI 

forensic examiners contained erroneous statements regarding microscopic hair comparison 

(“MHC”) analysis used in certain cases.

3

 It announced that in cases prior to December 31, 

1999, 26 of 28 FBI MHC examiners testified erroneously, and “[i]n the 268 cases where 

examiners provided testimony used to inculpate a defendant at trial, erroneous statements 

were made in 257 (96 percent) of the cases.”4 In a June 2015 letter, the USDOJ/FBI

notified the Delaware Department of Justice (“Delaware DOJ”) that their joint review 

determined that the testimony of the FBI forensic examiner who testified in Bass’s case, 

Andrew Gary Podolak (“Podolak”), “included statements that exceeded the limits of 

science.”5 Specifically, the USDOJ/FBI determined that Podolak stated or implied that the 

evidentiary hair could be associated with a specific individual to the exclusion of all others. 

Following the USDOJ/FBI’s disclosure, Bass filed his seventh Rule 61 motion, with 

assistance of appointed counsel, wherein he asserted claims of actual innocence as well as 

two constitutional due process challenges under the 14th Amendment to the United States 

Constitution. Bass sought a new trial or the dismissal of his indictment.

As part of his seventh Rule 61 motion, Bass asserted that the USDOJ/FBI’s 2015 

acknowledgment regarding the limitations of the MHC testimony constituted “new” 

3 App. to Opening Br. at A994–98 (“FBI Testimony on Microscopic Hair Analysis Contained 

Errors in at Least 90 Percent of Cases in Ongoing Review,” dated Apr. 20, 2015) [hereinafter Joint 

Statement]. 

4

Id. at A996. 

5

Id. at A18 (Letter from Norman Wang, Special Counsel, U.S. DOJ, to Honorable Matt Denn, 

Delaware Attorney General (June 25, 2015)) [hereinafter 2015 Letter]. The USDOJ/FBI took no 

position regarding the materiality of the error in this case.
4

evidence that creates a strong inference that he is actually innocent in fact of the charges 

of which he was convicted.6 According to Bass, without this improperly admitted 

testimony, the State’s remaining evidence was insufficient to support a conviction. As a 

result, he asserted that the State’s use of this unreliable hair evidence violated his right to 

a fair trial and that he is entitled to a new trial. 

Bass raised a second constitutional challenge after supplementing his initial Rule 61

motion.7 He asserted that the State’s failure to dismiss his indictment violated due process 

and demonstrated disparate treatment in view of the Delaware Attorney General’s 

dismissal of an indictment in another case involving hair comparison evidence.8

Bass’s Rule 61 motion was referred to a Superior Court Commissioner pursuant to 

10 Del. C. § 512(b) and Superior Court Criminal Rule 62(a)(5). The Commissioner issued 

her Report and Recommendation (“Commissioner’s Report”) concluding that Bass’s Rule 

61 motion should be denied.9 The Superior Court affirmed the denial.10 Bass appealed the 

Superior Court’s judgment. Oral argument before this Court occurred on April 19, 2023. 

6

Id. at A868 (Motion for Postconviction Relief, dated Apr. 26, 2018). 

7

Id. at A1010–58 (Supplemental Memorandum in Support of Postconviction Relief, dated Nov.

23, 2020).

8 The other case was State v. Daniels, ID No. 87002394DI. 

9

State v. Bass (Commissioner’s Report), 2021 WL 5984262, at *1 (Del. Super. Dec. 15, 2021). 

10 State v. Bass (Super. Ct. Op.), 2022 WL 2093956, at *1 (Del. Super. June 10, 2022).
5

II. Factual and Procedural Background11

A. Facts

Three separate incidents underlie Bass’s June 1983 convictions. Each occurred 

between November 1981 and August 1982 in Wilmington and Claymont. The attacks, 

which involved three separate women, occurred within a few miles of where Bass was 

living in Delaware.

1. Attack on S.K. – November 1981

The first attack occurred on November 10, 1981, about a mile from where Bass was 

living in Delaware. At around 7:00 p.m., 20-year-old S.K. was finishing up her workday

at a Northern Wilmington law office. While S.K. was speaking to a friend on the phone, a 

thin, well-dressed Black male entered the law office where she worked. He was wearing 

surgical gloves and carried a bag.

12

 He rushed to her and stuck a sharp object, which police 

later identified as a screwdriver, into her side. The man demanded that she not look at him, 

hang up the phone, and give him the petty cash that was in her office drawer. After taking 

the cash, the man ordered S.K. to call her friend back and tell the friend that she hung up 

because someone came into the office who needed her assistance, but that she would call 

back later. The man then went through S.K.’s purse and stole her watch, bracelet, and gold 

ring. 

11 Unless otherwise noted, facts are taken from the Commissioner’s Report, 2021 WL 5984262, at 

*1–14, see App. to Opening Br. at A1238–58, and the Super. Ct. Op., 2022 WL 2093956, at *1–

8. 

12 S.K. testified that she viewed her assailant for “about a minute.” App. to Opening Br. at A135 

(S.K. Trial Test. at 29:18). 
6

After taking S.K.’s jewelry, the man locked the front door and led S.K. to a 

conference room at the back of the law office. He again directed her not to look at him and 

covered her face by pulling her sweater up over her head. He had her lie face down on the 

floor, where he tied her feet with telephone wire he found in the office. He then directed 

her to stand up and remove her underwear and pants. The assailant did the same. He then 

made S.K. lie face up on the floor, with the sweater still blocking her view, and forced her 

to help him penetrate her vaginally. He raped her for 20 to 30 seconds but had trouble 

maintaining an erection. He did not ejaculate. 

After raping her, the assailant got dressed and allowed S.K. to do the same. While 

she was putting on her clothes, S.K. caught a glimpse of her attacker’s face. The assailant 

then stuck her in the side with the sharp object and ordered her to sit down while he tied 

another secretary’s sweater around S.K.’s neck and put it in her mouth. He placed another 

sweater found in the office over her head. Finally, he tied S.K.’s hands behind her back, 

told her not to call the police, and left. Shortly after he left, S.K. untied herself and called 

her boyfriend and her employer. The police arrived at the scene shortly after S.K.’s 

boyfriend. They found a screwdriver in the conference room where S.K. had been tied up. 

2. Attack on A.S. – July 1982

Eight months later, on July 10, 1982, at around 9:30 a.m., 26-year-old A.S. was 

beginning work alone in her office on the third floor of an insurance company in Claymont. 

She looked up from her work when a well-dressed, thin Black man entered her office. She 

viewed his face for 10 to 30 seconds before he ran to her and stuck a screwdriver in her 
7

side. He wore dark glasses and a cardigan sweater over his head, which covered the sides 

of his face and his hair. 

The man forced A.S. to look at the floor and asked if she had any money. She 

offered him her checks from her purse. Taking her purse, he emptied its contents on the 

desk and then tore the strap off of her purse. The attacker then gagged A.S. by tying his 

sweater over her head, making it so she could only see his shoes. 

The assailant then ordered A.S. to lead him around the office. After looking into 

other offices and making A.S. point out nearby exits, the man led A.S. into a conference 

room. He demanded her wedding and engagement rings, despite A.S.’s pleading for him 

not to take them. The assailant refused, threatened to kill her, punched her, took the rings, 

and then tied her hands and feet. He removed her underwear and pants and undressed 

himself. The man proceeded to vaginally rape A.S. for 60 to 90 seconds but, similar to the 

assailant in S.K.’s rape, had trouble maintaining an erection. He seemed frustrated, gave 

up, and said “forget it.” He then redressed himself and A.S., retied A.S.’s hands and feet, 

covered A.S. with a raincoat, and left the building. A.S. waited about an hour before fleeing 

the office to a nearby restaurant, where she called the police and her husband. 

Eight days before the attack on A.S., on July 2, 1982, a robbery was committed at 

the same insurance company in Claymont. The checkbook and dictating machine of A.S.’s 

co-worker, William Stevens, were stolen from his desk. That same day, Bass’s long-time 

friend, Loretta Schoell, cashed a forged check belonging to William Stevens. Bass had 

given her the stolen check one or two hours beforehand. A dictating machine of the same 
8

make, model, and description as that stolen from Mr. Stevens’ office was found in Ms. 

Schoell’s car. 

3. Attack on S.M. – August 1982

About a month and a half later, on the morning of August 26, 1982, 30-year-old 

S.M. was working alone in her North Wilmington office when she was suddenly 

approached from behind by a man who covered her mouth. S.M. asked her assailant what 

he wanted. He responded by telling S.M. to shut up and asking if she had any money. S.M. 

said she had none. 

The man then forced S.M. into a windowless lab room and struck her on the head. 

He became angry when S.M. tried to convince him the police were on the way to her office

because her purse had been stolen weeks earlier. The assailant accused S.M. of lying and 

ordered her to kneel and to shut up. At some point during the assault, S.M. lost control of 

her bladder and urinated on herself. Shortly afterward, S.M. heard her assailant leave the 

room. He was in the office for a total of about three to five minutes. She then armed 

herself with a metal object and called the police. S.M. never saw her assailant’s face.

Six weeks before the attack, on July 16, 1982, S.M. attended a party in the same 

office building where she was assaulted. She placed her purse, containing her wallet, under 

her desk for the day. At some point later in the day, S.M. was returning from the restroom 

when she passed by a tall, thin Black man with glasses in the hallway. After he passed, he 

stopped, turned around, and looked at her. The man wore a blue shirt, a light jacket, and 

pants. The next day, S.M. noticed that her wallet was missing, which contained her 
9

checkbook, money, and credit cards. Two of the stolen checks were later forged and cashed

by Bass’s friend, Ms. Schoell.

B. The Procedural Background

1. The Trial 

Bass’s trial began on May 31, 1983 and lasted four days. The State presented 

evidence against Bass at trial, including, but not limited to, the assailant’s race, height, 

build, voice, facial features, clothing, and shoes. The State elicited testimony from various 

witnesses relating to the identification of the assailant and the similarities between the three 

incidents. All three victims, as well as law enforcement, two eyewitnesses, and Bass’s

friend, Ms. Schoell, testified at trial. Two witnesses, including one of the victims,

positively identified Bass at trial as the assailant. Bass testified in his defense.

a. Victim Testimony

i. S.K.

During her trial testimony, the first victim, S.K., described the physical attributes of 

the man who attacked her and positively identified Bass as that man. She stated that the 

attacker was a 20- to 30-year-old Black male with a dark complexion, somewhere between 

5’8” to 5’10”, and slightly thin. She was not sure whether he had a mustache. He had a 

deep, soft-spoken voice. She testified that the man wore a hat, dark sunglasses, a black 

sports jacket, a white turtleneck, and dark dress pants.13 

13 S.K. testified that she did not remember the shoes her assailant wore. Id. at A136 (S.K. Trial

Test. at 30:9–10).
10

S.K. also testified about her opportunities to identify her attacker before trial. She 

explained that she directed a composite photograph of her assailant, even undergoing 

hypnosis to do so, but was never confident of the resulting sketch.14 She further testified 

about an opportunity that she had to identify individuals that looked similar to her assailant 

during a live lineup, and to identify Bass in a photographic lineup. In December 1981, the 

detective investigating S.K.’s case presented her with a live lineup of six Black males. 

Bass was not among them. S.K. rated one of the individuals as an “eight” on a scale from 

one to 10 in resemblance to her attacker but did not positively identify any of the 

individuals as her assailant. In October 1982, almost a year after her attack, the detective 

investigating S.K.’s case presented her with a photographic lineup that included Bass. S.K. 

did not identify Bass from that lineup. 

Finally, at trial in June 1983, approximately 19 months after her attack, S.K. 

positively identified Bass. She confirmed on direct examination that she had no doubt in 

her mind that Bass was her rapist and explained on redirect examination that she had been 

previously unable to identify Bass as her assailant because she had not seen him in person, 

and she did not think the photographs alone “really show[ed] it all.”

15

ii. A.S. 

The second victim, A.S., also described the assailant at trial, whom she had an 

opportunity to view for 10 to 30 seconds before he reached her. A.S. testified that her

14 Commissioner’s Report, 2021 WL 5984262, at *5.

15 Id. at *6.
11

attacker was a thin Black male, with a medium complexion, between 5’11” and 6’0” tall, 

in his early thirties, and having an older sounding voice. She thought he had a slender 

build, a thin jaw line and hollow cheeks, with a thin growth of hair on his chin. She testified 

that her assailant covered his head with a cardigan sweater and wore black-framed dark 

plastic sunglasses with dark lenses, and possibly a short-sleeved shirt with dark polyester 

pants. His shoes were medium gray slip-ons with a soft crepe sole. The State showed A.S. 

the shoes they had obtained from Bass’s home at trial, but she did not identify the shoes as 

those of her attacker. She stated that they resembled her attacker’s shoes in that they were 

the same unusual gray color and were slip-ons, but they looked like leather instead of the 

suede that she remembered from her attack.

A.S. never positively identified Bass as her assailant either before trial or at trial. 

Instead, A.S. testified about the composite sketch she helped the police to create of her 

assailant. Like S.K., she was never satisfied with the sketch because it depicted her attacker 

with a goatee,16 and her attacker’s cheeks were hollower than the sketch showed. 

A.S. had two opportunities to identify Bass in photographic lineups prior to trial —

in July 1982 and October 1982 — but never made a positive identification. Police 

presented A.S. with the first lineup in the same month of her attack. It included a picture 

of Bass from 1978. A.S. picked out two individuals as resembling her attacker, noting that 

Bass’s photograph showed a man with a similar weight and facial structure as her attacker.

16 A.S. testified that rather than a goatee, her attacker had “only a few scraggly hairs.” App. to 

Opening Br. at A240 (A.S. Trial Test. at 134:21). 
12

Police showed A.S. a second photographic lineup in October 1982, which included 

a more recent photograph of Bass. Again, A.S. chose two photographs as picturing a man 

resembling her attacker, but she noted that of the two, Bass’s photograph looked most like 

him. Once A.S. stated that Bass’s photo looked most like her assailant, the detective told 

her that he was the suspect. The detective did not conduct a third photographic lineup.17

Although A.S. did not positively identify Bass as her assailant at trial, she stated 

that Bass “resembles the person who attacked me.”18 She further stated that her attacker 

was thinner than Bass and that he did not have a mustache. The State then elicited 

testimony from law enforcement that Bass was 15 to 20 pounds heavier at the time of trial 

than he was at the time of his arrest in November 1982. Bass did not object to A.S.’s incourt identification testimony. However, Bass argued for suppression of the second-array 

testimony for two reasons. First, none of the males in the first array appeared in the second 

array except Bass. Second, after A.S.’s identification of Bass’s photograph, she was told 

by the police officer that the individual that she had selected was suspected of attacking 

her. The trial court denied the motion.19

17 Commissioner’s Report, 2021 WL 5984262, at *8. The trial court admitted testimony and 

evidence relating to the second out-of-court photo array over Bass’s objections. As discussed 

below, Bass contended on direct appeal that the trial court erred in this admission. This Court

denied his claims of error. 

18 Super. Ct. Op., 2022 WL 2093956, at *3.

19 The trial court found that Bass had failed to show that the procedure “was so unduly suggestive 

as to violate the defendant’s due process rights.” App. to Opening Br. at A706 (Denial of Direct 

Appeal at ¶ 13). 
13

iii. S.M. 

The final victim, S.M., never saw her assailant’s face and never positively identified 

Bass. She testified at trial about the facts of her assault and the facts surrounding her stolen 

checkbook. Although S.M. never saw the face of her attacker, she testified that the 

assailant was between 5’10” and 6’0” tall with a slender build and long, thin black fingers. 

He wore a blue shirt and had a calm voice. 

She also stated that on the day her checkbook was stolen, she passed a man in the 

hallway on the way back from the restroom. The man was Black, tall and thin, and wore

glasses, a blue shirt, light jacket, and light pants.20 He stopped, turned around, and looked 

at her. 

b. Eyewitness Testimony 

The State elicited testimony from two eyewitnesses during trial, both of whom 

testified as to the events surrounding S.M.’s attack. One of the eyewitnesses was Roger 

Reynolds, a building manager in the office building where S.M. was assaulted. Mr. 

Reynolds testified that, shortly after S.M. was attacked, he received a call from the police 

and began looking around the building. During his search, he noticed a man located in a 

bathroom stall in the men’s restroom, which was about 30 feet from S.M.’s office. 

Mr. Reynolds further testified that it appeared that while he was in the stall, the 

man’s pants were up, he was not using the toilet, and his shoes were clearly visible. Mr. 

Reynolds described the man as Black, having facial hair, about 6’0” tall, and wearing gray 

20 Super. Ct. Op., 2022 WL 2093956, at *8. She described his clothes as casual golf clothes. App. 

to Opening Br. at A381 (S.M. Trial Test. at B127:5–8).
14

suede shoes with a flat sole and heel. He confirmed at trial that the shoes obtained by the 

State from Bass’s home “looked like the same shoes” as those worn by the man in the 

bathroom stall. Although Mr. Reynolds admitted that he did not see the man’s entire face, 

he selected an individual from a photo lineup based on the “definite formation” of the 

man’s forehead. He selected a photo of Bass. 

The second eyewitness to testify at trial was Christine Shaw. Ms. Shaw testified 

that on the morning that S.M. was assaulted, she passed a man in the hallway who was 

exiting the office where the attack occurred. She viewed him for about one minute as they 

walked down the hallway, during which he said “hello” as he passed her. She described 

the man as a neatly dressed, tall, Black man, who was about 5’10” and 130 pounds. She 

stated he was approximately 30-years-old with a “short to medium afro,” and was wearing 

a blue shirt, blue tweed pants, and glasses. She told the police that the man was clean 

shaven but at trial she could not definitively say whether he had a mustache. 

Ms. Shaw positively identified Bass in a photo lineup before trial. At trial, she 

testified that when viewing the photo lineup, she recognized the picture of the man “as 

soon as [she] saw the picture,” and did not have any doubt that she selected the correct 

person.21 Ms. Shaw unequivocally identified Bass at trial. 

c. Loretta Schoell’s Testimony

After receiving immunity from the State, Bass’s long-time friend, Loretta Schoell,

testified about Bass. She testified that she had known Bass about 11 years, and that he was 

21 Super. Ct. Op., 2022 WL 2093956, at *4. 
15

“like a member of her family.”22 She stated that at the time of each of the assaults, from 

October to December of 1981, and again from June to September of 1982, Bass lived with 

her at Stoneybrook Apartments in Claymont. 

Ms. Schoell told the jury that during this time, Bass was unemployed and supported 

himself by stealing checks and credit cards from office buildings. She testified that she 

and Bass would target offices to commit thefts, including the offices where A.S. and S.M. 

were attacked. When doing so, Bass would dress up as an office worker, i.e., in wellpressed clothes, so as not to stand out. Specifically, Ms. Schoell stated that on July 16, 

1982, the date of S.M.’s office party, Bass went inside S.M.’s office building while she 

waited for him in the car. Bass returned to the car after approximately 20 minutes with 

S.M.’s checks. Ms. Schoell then forged and cashed two of the checks, one at a Bank of 

Delaware Branch and one, Check No. 950, at a Thriftway supermarket.23

Relatedly, the jury heard testimony from A.S.’s co-worker, William Stevens, about 

a stolen dictating machine, which was found in Ms. Schoell’s car and matched the 

description of the one stolen from Mr. Stevens’ desk in his and A.S.’s shared office 

building.24 Ms. Schoell testified that Bass gave her a stolen check from Mr. Stevens eight 

days before A.S. was raped. Lastly, Ms. Schoell confirmed the same gray shoes shown to 

A.S. and Mr. Reynolds belonged to Bass.25

22 Id.

23 Commissioner’s Report, 2021 WL 5984262, at *7.

24 Id. at *6; App. to Opening Br. at A337 (William Stevens Trial Test. at B83:1–9).

25 Super. Ct. Op., 2022 WL 2093956, at *5.
16

d. Bass’s Testimony

Bass chose to exercise his constitutional right to testify at trial. He admitted to the 

jury that he supported himself by going into office buildings to steal checks and other 

valuables. He stated that, while committing the burglaries, he would never carry a weapon 

so that if he were caught, he would not also face a weapons charge.

26 He also stated that 

when he committed the thefts, he would not speak to anyone unless he had to, and that he 

never returned to those office buildings after he committed the thefts.

27 As to the specific 

incidents, Bass denied assaulting any of the victims and either denied or stated he could 

not recall whether he had stolen any of their valuables. Finally, Bass confirmed that the 

shoes shown to Ms. Schoell, A.S., and Mr. Stevens belonged to him, but stated that he 

purchased them in September 1982.28

e. The MHC Evidence

Police collected articles of clothing, pubic hair combings, and hair samples from 

Bass, S.K., and A.S. The samples were sent to the FBI to undergo MHC analysis. FBI 

Agent Podolak analyzed samples relating to the attacks on S.K. and A.S., and testified at 

Bass’s trial as to his findings.29 He testified that his job as an MHC examiner was twofold: first, to determine “whether there are any hairs present on the items which are 

26 Commissioner’s Report, 2021 WL 5984262, at *4.

27 Super. Ct. Op., 2022 WL 2093956, at *5. Further, Bass testified that he had only ever gone to 

an office building to steal checks on weekdays. App. to Opening Br. at A552 (Alan Bass Trial 

Test. at C150:2–8) [hereinafter A. Bass Trial Test. at __]. A.S. was attacked on a Saturday. 

28 App. to Opening Br. at A529–30 (A. Bass Trial Test. at C128:14–C129:13). 

29 Super. Ct. Op., 2022 WL 2093956, at *5. 
17

submitted” to him, and second, to “try to make an association between those hairs and the 

particular individual.”30 He explained that: “The most important part of the hair 

comparison is the arrangement of the characteristics in association with one another.”31 

Thus, he likened the analysis to viewing a human face and stated: “It’s the arrangement of 

the characteristics that we have in association with each other that gives a uniqueness to 

the hair which then allows us to make an association of that hair to a particular 

individual.”32 

He then told the jury about his findings as to the hairs collected from the attacks on

S.K. and A.S. There was no MHC evidence presented at trial as to S.M. 

i. As to S.K. 

Podolak testified that he found “dark brown pubic hairs of negroid origin” in the 

pubic hair combings taken from S.K., and that those combings matched a sample of Bass’s

pubic hair.33 Specifically, Podolak testified: “I found dark brown pubic hairs of negroid 

origin, which microscopically match in every observable characteristic the known pubic 

hairs of Alan Bass.”34 

30 App. to Opening Br. at A28 (Andrew Podolak Direct Test. at C56:9–13) [hereinafter A. Podolak 

Direct Test. at __]; accord Commissioner’s Report, 2021 WL 5984262, at *11.

31 App. to Opening Br. at A34 (A. Podolak Direct Test. at C62:12–14); accord Commissioner’s 

Report, 2021 WL 5984262, at *11.

32 App. to Opening Br. at A34–35 (A. Podolak Direct Test. at C62:22–C63:3).

33 Commissioner’s Report, 2021 WL 5984262, at *11.

34 Id.; accord App. to Opening Br. at A491 (A. Podolak Direct Test. at C80:8–11).
18

ii. As to A.S. 

Similarly, Podolak testified that he “found a dark brown head hair of negroid origin 

[on A.S.’s clothing] which microscopically matched the known head hair sample of Alan 

Bass in every observable microscopic characteristic.”35 He also compared pubic hair

combings taken from A.S. following her rape with pubic hair taken from Bass. He told the 

jury: “I found a dark brown pubic hair of negroid origin which matched in every observable 

microscopic characteristic the known pubic hairs of Alan Bass.”36

iii. Cross-Examination of Podolak 

On cross-examination, Bass’s trial counsel elicited the following testimony from 

Podolak: 

• Q: It’s also in the report – in the results of your examination, after you 

state that you made comparisons to the slide, you state in there, 

“Accordingly, it could have originated from Alan Bass or it could have 

originated from [S.K.] or it could have originated from [A.S.].” On the 

basis of your examinations, you are not able to positively state that, in 

fact, they were from Alan Bass or [S.K.] or [A.S.]. Is that correct?

• A: That’s correct. Hair comparisons are not like fingerprints; they are 

not a hundred percent accurate.

• Q: In fact, you put a disclaimer in here that states, “It’s pointed out that 

hair comparisons do not constitute a basis for absolute personal 

identification.” Isn’t that correct too?

• A: That’s correct. I think the key word is “absolute.” 37

35 Commissioner’s Report, 2021 WL 5984262, at *11; accord App. to Opening Br. at A501 (A. 

Podolak Direct Test. at C90:15–18).

36 App. to Opening Br. at A503 (A. Podolak Direct Test. at C92:1–3).

37 Id. at A505–06 (Andrew Podolak Cross-Examination Test. at C94:20–C95:13) [hereinafter A. 

Podolak Cross-Examination Test. at __].
19

• That Podolak can determine the race of the person a hair came from, or if 

the person “has mixed racial characteristics” but cannot tell the gender of 

the person the hair came from just from examining a hair.38

iv. Redirect Examination of Podolak 

On redirect examination, the State elicited the following testimony from Podolak:

• Podolak, over defense counsel’s objection, testified that “[b]eing an 

expert in the area of hair comparisons and hair itself, my opinion is that 

negroid hairs are much easier to identify and compare than caucasian or 

mongoloid hairs.”39

• Podolak testified that microscopic hair comparisons do not constitute a 

basis for absolute personal identification, but over the years, “we have 

persisted in that hair comparisons are a very good means of identification, 

not a hundred percent, but a very good means of identification.”40

• Podolak, over defense counsel’s objection, discussed a then-recent 

Minnesota academic study conducted to “determine the evidential value 

of hair comparisons. In other words, what percent of the time or what 

percentage of the time can an analyst say, when he takes a questioned 

hair, he can make an association to a particular individual.”41 He noted it 

was an “introductory study,” “not a complete study.”42 He described the 

study in which a hair examiners matched “questioned” hair samples with 

“known” hair samples 100% of the time. He stated that “the morphology 

of human head hairs is an individual characteristic of identity, and that 

they are -- this affirms that this is a good reliability or a very good ability 

of an analyst to take a questioned hair and match it to an individual in a 

crime situation.”43 

• Podolak stated that he had conducted “over three thousand hair 

comparisons so far,” and that he “ha[d] yet to find hairs from two different 

38 Id. at A506–07 (A. Podolak Cross-Examination Test. at C95:14–C96:23).

39 Id. at A73 (Andrew Podolak Redirect Test. at C101:12–15) [hereinafter A. Podolak Redirect 

Test. at __].

40 Id. at A75 (A. Podolak Redirect Test. at C103:6–9).

41 Id. at A508 (A. Podolak Redirect Test. at C104:9–16).

42 Id. (A. Podolak Redirect Test. at C104:19–20).

43 Id. at A508–10 (A. Podolak Redirect Test. at C106:5–12).
20

individuals that [he could] not distinguish between their hair 

characteristics.”44

v. Recross Examination of Podolak

On recross examination, Bass’s trial counsel elicited the following testimony from 

Podolak: 

• Podolak agreed that “you could have two samples from the same head 

and they would not be microscopically similar” because “[t]hat’s all part 

of the individual’s identity or the uniqueness of the individual’s hair.”45 

However, “each individual has a variation in the hairs on their head, but 

the variation between one hair and the other is very minute compared to 

the variation from one individual to another.”46

The State rested its case following Podolak’s testimony.47

f. The Verdict and Sentence

On June 8, 1983, the jury returned guilty verdicts against Bass on all charges 

including two counts of Rape First Degree, three counts of Kidnapping First Degree, two 

counts of Robbery First Degree, one count of Attempted Robbery First Degree, two counts 

of Burglary Second Degree, and one count of Burglary Third Degree. On January 24, 

1984, the trial court sentenced Bass to five life sentences plus 45 years.

48

44 Id. at A510 (A. Podolak Redirect Test. at C106:20–22).

45 Id. at A512 (Andrew Podolak Recross Test. at C108:1–7) [hereinafter A. Podolak Recross Test. 

at __].

46 Id. (A. Podolak Recross Test. at C108:17–19).

47 Unfortunately, the transcripts of the opening statements and closing summations are unavailable 

as these proceedings were never previously transcribed. Commissioner’s Report, 2021 WL 

5984262, at *3. 

48 App. to Opening Br. at A600–02 (Sentencing Order, dated Jan. 24, 1983).
21

2. Direct Appeal

Bass appealed his conviction to this Court. On direct appeal, Bass challenged his 

convictions involving S.K. and A.S. He challenged two evidentiary rulings. First, he

argued that the trial court reversibly erred in admitting the Minnesota study introduced 

during Podolak’s redirect examination (the “Minnesota Study”), described above, because 

(i) in the absence of proof of its general acceptance in the scientific community, it was 

inadmissible under Frye v. United States,

49 and (ii) the study’s conclusions were potentially 

misleading simply by being the “initial study” of its kind, and, therefore, it was potentially 

misleading and inadmissible under Delaware Rule of Evidence 403.50 Second, he asserted 

that the trial court committed reversible error in not suppressing, as unduly suggestive, 

A.S.’s second out-of-court photo array identification of Bass.

Denying Bass’s first claim, this Court found that Frye did not apply because 

Podolak’s testimony did not depend on the study, and he drew only limited conclusions 

from it. Further, Podolak had conceded on cross-examination and redirect examination 

that MHCs were not without error or always accurate. Thus, this Court found no error or 

abuse of discretion in the admission of the Minnesota Study. 

49 293 F. 1013 (D.C. 1923). Frye’s “general acceptance” test for determining the admissibility of 

expert opinions was superseded by the adoption of the Federal Rules of Evidence as noted in

Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 587 (1993), which was decided a decade after 

Bass’s trial. We adopted Daubert six years after that in M.G. Bancorporation v. Le Beau, 737 

A.2d 513, 522 (Del. 1999) (stating that “[a]lthough this Court is not bound by the United States 

Supreme Court’s interpretation of comparable rules of procedure or evidence, we hereby adopt the 

holdings of Daubert and Carmichael as the correct interpretation of Delaware Rule of Evidence 

702”) (referring to Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137 (1999)).

50 App. to Opening Br. at A701–02 (Denial of Direct Appeal at ¶ 5–6). 
22

As to the trial court’s admission of A.S.’s second out-of-court photo array 

identification of Bass, this Court noted that A.S. was unable to make a positive 

identification of Bass as her assailant. Rather, she could only state that Bass resembled her 

attacker. This Court agreed with the trial court’s conclusion that the victim’s “less than 

positive identification” testimony should be admitted, subject to the right of crossexamination and to argument concerning the weight to be accorded the evidence by the 

trier of fact.51

We also rejected Bass’s “altered argument on appeal” that the second array 

identification procedure was so unnecessarily suggestive as to violate his due process 

rights.52 We stated that “[i]dentification testimony, to be admissible, need only be reliable 

and need not be established to a certainty.”53 Further, “[i]dentification testimony that is 

tentative is to be evaluated by the trier of fact as any other evidence.”54 “Whether there is 

a substantial likelihood of misidentification turns on a consideration of the totality of the 

evidence.”

55

 With those points in mind, this Court held: 

[A.S.’s] challenged testimony was remarkably consistent with her 

unchallenged in-court testimony eight months later. Since [A.S.’s] 

identification of defendant in the second array procedure was no more or less 

positive than her later in-court testimony, her out-of-court testimony cannot 

51 Id. at A706 (Denial of Direct Appeal at ¶ 13).

52 Id. (Denial of Direct Appeal at ¶ 14). This Court observed that Bass’s remaining ground for 

suggestiveness “could only have tainted a third photographic array and may explain the State’s 

withdrawal of that evidence from the case.”). Id. at A707; see also Commissioner’s Report, 2021 

WL 5984262 at *8 (finding that “[h]aving already told A.S. that Bass was the suspect, the detective 

aborted the third photographic lineup”). 

53 Id. at A707 (Denial of Direct Appeal at ¶ 15) (citations omitted).

54 Id. (citing United States v. Sublet, 644 F.2d 737, 742 (8th Cir. 1981)). 

55 Id. 
23

be said to have been unreliable in the sense of being likely to lead to 

misidentification of defendant at trial so as to deprive him of a fair trial. 

Finally, as previously noted, the State’s testimony linking defendant to the 

crimes involving [A.S.] was not limited to [A.S.’s] identification testimony.56

3. Postconviction Motions

Following the denial of his direct appeal, Bass filed six pro se motions for 

postconviction relief under Rule 61.

57

 None of them asserted a claim regarding 

microscopic hair evidence, and all were denied or dismissed, including the most recent one 

in 2014. 

4. The USDOJ/FBI Investigation 

After Bass’s six prior Rule 61 motions, the FBI, along with the USDOJ, engaged in 

a years-long review of MHC reports and testimony provided by FBI forensic examiners 

from cases prior to December 31, 1999. The review focused on cases where improper trial 

testimony may have overstated the conclusions that properly could have been drawn from 

the hair comparison analysis. 

As a result, the USDOJ, the FBI, the Innocence Project, and the National 

Association of Criminal Defense Lawyers issued the Joint Statement, announcing that 26 

of 28 FBI MHC examiners had testified erroneously, and that in 268 cases where examiners 

provided testimony used to inculpate a defendant at trial, erroneous statements were made 

in 257 of those cases (96 percent of the cases).

58

 

56 Id. at A707–08 (Denial of Direct Appeal at ¶ 15) (internal citation omitted).

57 See supra note 2.

58 See App. to Opening Br. at A994–98 (Joint Statement). The Joint Statement states that:
24

In June 2015, the USDOJ notified the Delaware DOJ that the FBI’s review 

determined that the testimony of the FBI forensic examiner who testified in Bass’s case, 

Podolak, “included statements that exceeded the limits of science.”59 The appendix to 

Bass’s opening brief contains a letter dated June 25, 2015 from Special Counsel Norman 

Wong of the USDOJ to Delaware Attorney General Matt Denn reflecting this notification 

(the “2015 Letter”).60 The 2015 Letter identified the three types of errors generally, and 

then identified the specific errors in Bass’s case as follows: 

Error Identified in this Matter

We have determined that the microscopic hair comparison analysis testimony 

or laboratory report presented in this case included statements that exceeded 

the limits of science in one or more of the following ways and were, 

therefore, invalid: (1) the examiner stated or implied that the evidentiary hair 

could be associated with a specific individual to the exclusion of all others –

this type of testimony exceeded the limits of the science; (2) the examiner 

assigned to the positive association a statistical weight or probability or 

provided a likelihood that the questioned hair originated from a particular 

source, or an opinion as to the likelihood or rareness of the positive

The government identified nearly 3,000 cases in which FBI examiners may have 

submitted reports or testified in trials using microscopic hair analysis. As of March 

2015, the FBI had reviewed approximately 500 cases. The majority of these cases 

were trials and the transcript of examiner testimony was reviewed. Some of these 

cases ended in guilty pleas, limiting the review to the original lab report. In the 268 

cases where examiners provided testimony used to inculpate a defendant at trial, 

erroneous statements were made in 257 (96 percent) of the cases. Defendants in at 

least 35 of these cases received the death penalty and errors were identified in 33 

(94 percent) of those cases. Nine of these defendants have already been executed 

and five died of other causes while on death row. The states with capital cases 

included Arizona, California, Florida, Indiana, Missouri, Ohio, Oklahoma, 

Pennsylvania, Tennessee, and Texas. It should be noted that this is an ongoing 

process and that the numbers referenced above will change. 

The review has shown that the FBI examiners testified in cases in 41 states. Id. at A996 (Joint 

Statement at 3).

59 Id. at A18 (2015 Letter at 2). 

60 Id. at A17–81 (2015 Letter).
25

association that could lead the jury to believe that valid statistical weight can 

be assigned to a microscopic hair association – this type of testimony 

exceeded the limits of the science; or (3) the examiner cites the number of 

cases or hair analyses worked in the laboratory and the number of samples 

from different individuals that could not be distinguished from one another 

as a predictive value to bolster the conclusion that a hair belongs to a specific 

individual – this type of testimony exceeded the limits of the science. (A 

copy of the documents upon which our determination is based, specifying 

which of the three error types were identified, is enclosed.) We take no 

position regarding the materiality of the error in this case.61

The 2015 Letter identified the following “Type 1” statements made by Podolak 

during Bass’strial (identified below in italics), each of which exceeded the limits of science 

because “(1) the examiner stated or implied that the evidentiary hair could be associated 

with a specific individual to the exclusion of all others:”62

• “Now, my job then is to determine, first of all, whether there are any hairs 

present on the items which are submitted to me; and then secondly, try to 

make an association between those hairs and the particular individual.”

63

• “The most important part of the hair comparison is the arrangement of 

the characteristics in association with one another. Take the human face 

for an example. We all have eyes, nose, mouth, ears, hairline, chin, and 

so forth. And if you look from one individual to the other, you’ll see that 

some of these characteristics are the same, from one individual to the 

next. But it’s the arrangement of those characteristics on your face that 

gives you a uniqueness to you that when someone looks at you, they can 

say, “That’s so and so.” It’s the same thing with hair. It’s the 

arrangement of the characteristics that we have in association with each 

other that gives a uniqueness to the hair which then allows us to make an 

association of that hair to a particular individual.”

64

• “[Referring to the Minnesota Study] Now, the conclusion then or what 

this all points out is that the morphology of human head hairs is an 

61 Id. at A18 (2015 Letter at 2) (internal footnote omitted).

62 Id.

63 Id. at A28 (2015 Letter, A. Podolak Direct Test. at C56:9–13) (emphasis added).

64 Id. at A34–35 (2015 Letter, A. Podolak Direct Test. at C62:12–C63:3) (emphasis added). 
26

individual characteristic of identity, and that they are – this affirms that 

this is a good reliability or a very good ability of an analyst to take a 

questioned hair and match it to an individual in a crime situation.”

65

• [Q: Aren’t there, in fact, certain groups of people or certain types of hair 

that you could have two samples from the same head and they would not 

be microscopically similar?] A: “Oh, yes. That’s all part of the 

individual’s identity or the uniqueness of the individual’s hair.”

66

It further identified the following limiting language in Podolak’s trial testimony:

• [Q: . . . On the basis of your examinations, you are not able to positively 

state that, in fact, they were from Alan Bass or [S.K.] or [A.S.]. Is that 

correct?] 

• A: “That’s correct. Hair comparisons are not like fingerprints; they are 

not a hundred percent accurate.” 

• [Q: In fact, you put a disclaimer in here that states, “It’s pointed out that 

hair comparisons do not constitute a basis for absolute personal 

identification.” Isn’t that correct too?]

• A: “That’s correct. I think the key word is ‘absolute.’’

67

• [Q: So as to each of your findings here, your finding is simply that the 

hairs you examined could have originated from either Mr. Bass or [A.S.]

– [A.S.] or [S.K.]?]

• A: “That’s correct. I cannot say with a hundred percent surety that they 

originated from those individuals.”

68

. . . . 

• [Q: [Referring to the substance of the testimony in the above-quoted 

passage] you also have a caveat in there, that it’s pointed out that hair 

65 Id. at A78 (2015 Letter, A. Podolak Redirect Test. at C106:7–12) (emphasis added).

66 Id. at A79–80 (2015 Letter, A. Podolak Redirect Test. at C107:23–C108:4–5) (emphasis added).

67 Id. at A67 (2015 Letter, A. Podolak Cross-Examination Test. at C95:3–13).

68 Id. at A71 (2015 Letter, A. Podolak Cross-Examination Test. at C99:10–16).
27

comparisons do not constitute a basis for absolute personal identification. 

What do you mean by those comments? Would you explain that?] 

• A: “Yes. . . .”

69

In the 2015 Letter, Mr. Wong recommended that A.G. Denn “promptly advise the 

appropriate victim advocate in your office of this error, so that he/she may determine how 

and when to inform the victim or the victim’s family that this matter may be the subject of 

further litigation and that they may be contacted by the defense.”70

Mr. Wong also stated that the FBI was available to provide mitochondrial DNA 

(“mtDNA”) testing of the relevant hair evidence in the event that the Delaware DOJ 

determined that further testing was appropriate or necessary. He further described how the 

USDOJ was addressing the problem which included waiving reliance on statutes of 

limitations and procedural default defenses. He asked that he be advised if the Delaware 

DOJ planned to take any action based upon the information he provided. Finally, he 

advised that he was notifying the defense in Bass’s case and was notifying the Innocence 

Project and the National Association of Criminal Defense Lawyers of the error. 

5. The Seventh Postconviction Motion

Following the USDOJ/FBI’s disclosure, the Office of Conflicts Counsel assigned 

postconviction counsel to Bass. On April 26, 2018, Bass, through postconviction counsel, 

filed the Rule 61 motion before us — his seventh. In it, Bass asserted that the 

USDOJ/FBI’s 2015 acknowledgment regarding the limitations of the MHC testimony 

69 Id. at A74 (2015 Letter, A. Podolak Redirect Test. at C102:19–C103:1).

70 Id. at A18 (2015 Letter at 2). 
28

constituted “new” evidence that creates a strong inference that he is actually innocent in 

fact of the acts underlying the charges of which he was convicted.71 He asserted that 

without this improperly admitted testimony, the State’s remaining evidence was 

insufficient to support a conviction. He also asserted that the State’s use of this unreliable 

hair evidence violated his right to a fair trial.72 

6. The Commissioner’s Report

Bass’s Rule 61 motion was referred to a Superior Court Commissioner pursuant to 

10 Del. C. § 512(b) and Superior Court Criminal Rule 62(a)(5). During the pendency of 

the motion before the Commissioner, the parties became aware that the hair evidence was 

still available from Bass’s 1983 trial. Before a scheduled evidentiary hearing, both sides 

stipulated to submit the hair evidence to the FBI for additional MHC analysis and mtDNA 

testing.73

Regarding the MHC analysis as to the S.K. sample, the results concluded that Bass 

was “a possible source of [the] hair.”74 Due to the limited nature of the A.S. sample, no 

conclusions could be reached as to whether or not Bass could be included as a possible 

source. Regarding the mtDNA testing, the FBI concluded that for S.K., Bass could not be 

excluded as a source. As for A.S., the samples were not able to be interpreted due to 

71 Id. at A868 (Motion for Postconviction Relief at 1). 

72 As noted above, Bass also asserted that the State’s failure to dismiss his indictment violated his 

due process rights and demonstrated disparate treatment in view of the Delaware Attorney 

General’s dismissal of an indictment in State v. Daniels based on invalid MHC evidence. Id. at

A1010–58 (Supplemental Memorandum in Support of Postconviction Relief).

73 Commissioner’s Report, 2021 WL 5984262, at *3, *12. 

74 Id. at *13.
29

mixtures of mtDNA from more than one individual being present. The parties stipulated 

to the mtDNA results. 

With the supplemental submission of the mtDNA results, the Commissioner issued 

her Commissioner’s Report on December 15, 2021. The Commissioner found that the 

USDOJ/FBI’s 2015 disclosure identifying erroneous testimony by FBI examiners, and the 

new understanding in forensic science regarding the limitations of MHC analysis for 

individual identification constitute new evidence for purposes of Rule 61’s actual 

innocence exception.75 

The Commissioner then inquired whether “considering the evidence introduced at 

trial other than what was later repudiated, there was a reasonable probability of a different 

outcome – that is, an acquittal.”76 Finding that there was not, the Commissioner noted that 

MHC is still an accepted and reliable scientific method of technique used by the FBI, 

Podolak’s statements were limited during cross-examination, the MHC re-test did not 

exonerate Bass, the mtDNA testing further “corroborated the MHC analysis,”

77 and there 

was other evidence even without any MHC evidence to support Bass’s convictions. This 

other evidence included testimony from each of the victims, testimony from two 

75 Id. at *14. 

76 Id.

77 Id. at *15. The Commissioner’s Report incorrectly stated that the “partial mtDNA sequence 

obtained from the S.K. sample matched Bass.” Id. The Superior Court held that the Commissioner 

was incorrect to refer to the mtDNA testing as a “match” for Bass. Super. Ct. Op., 2022 WL 

2093956, at *10. The Superior Court found that no conclusions can be drawn from a finding that 

Bass cannot be excluded as a source and that mtDNA is not as conclusive as nuclear DNA testing. 

Id.; see also A1037 (Laboratory Report, dated Jan. 20, 2020, containing Results of Mitochondrial 

DNA Examinations). 
30

eyewitnesses, testimony from Bass’s long-time friend Loretta Schoell, the dictation 

machine found in her car, the repetitive conduct and common characteristics of the 

assailant, and the similarities in the modus operandi of the attacks — all of which linked 

Bass to the attacks.

78

 

With respect to Bass’s second constitutional claim, the Commissioner found that 

Daniels was inapposite because “where in the Daniels case every aspect of the State’s 

evidence was called into question,” “[n]othing in the record, and none of the recent 

retesting of the MHC evidence, has exonerated Bass in any way.”

79

 Accordingly, the 

Commissioner recommended that Bass’s seventh motion for postconviction relief be 

denied. 

78 Commissioner’s Report, 2021 WL 5984262, at *15–17. Specifically, the Commissioner 

concluded that “[t]here was strong direct and circumstantial evidence demonstrating Bass’ guilt. 

Bass’ trial would not have been different without Agent Podolak’s inadmissible testimony 

overstating the MHC evidence in view of the substantial evidence of Bass’ guilt, and the re-testing 

of the hair for a MHC comparison and mtDNA testing.” Id. at *17.

79 Id. at *19. Specifically, the Commissioner explained: 

In this case, with the exception of the overstatements of the MHC expert, all other 

aspects of the State’s case against Bass remain in place. The re-test results of the 

MHC evidence do not exonerate Bass in any respect. There have been no new 

discoveries of any factual evidence that calls into question the verdict. No physical 

evidence has surfaced that undermines the State’s case against Bass. The State’s 

case against Bass through direct and circumstantial evidence was substantial and 

remains in place.

Id.
31

7. The Superior Court’s Denial of Postconviction Relief

On January 26, 2022, Bass appealed the Commissioner’s Report.

80

 He argued that 

the Commissioner’s Report (1) overstates the strength of the State’s case, (2) minimizes 

the effect of Podolak’s false testimony on the jury, (3) overstates the significance of the 

mtDNA evidence, and (4) improperly finds that the Rule 61 motion fails to overcome the 

procedural bar of Rule 61(d)(2).81 The Superior Court rejected Bass’s contentions, adopted 

the Commissioner’s Report, and denied Bass’s seventh postconviction motion. 

In denying Bass’s instant postconviction motion, the Superior Court concluded that 

the 2015 Letter was new evidence, but that it was not persuasive. It gave three reasons: (i) 

the new evidence does not carry the persuasive force so as to change the result of the trial 

and the expert’s overstatements were effectively limited through cross-examination;82 (ii) 

“the new evidence does not establish that someone other than Defendant committed these 

crimes;”83 and (iii) the result would not change if the erroneous testimony were excluded 

entirely. It summarized its findings:

The record is replete with challenges through cross examination regarding 

the inconsistences related to Defendant’s identification and what the 

witnesses did and did not see. The jury was free to weigh the credibility of 

these witnesses and the inconsistencies of the evidence as to identification. 

The State established guilt independently as to each victim and further 

80 See App. to Opening Br. at A1268–1311 (Appeal From Commissioner’s Findings of Fact and 

Recommendation, dated Jan. 26, 2022). 

81 Super. Ct. Op., 2022 WL 2093956, at *7. 

82 The Superior Court found that “[t]he jury therefore heard that hair comparison analysis was 

neither one hundred percent accurate nor absolute for personal identification. Considered in its 

totality, the impropriety of the expert’s testimony lacks the requisite force to impact the State’s 

case against Defendant.” Id. at *9.

83 Id. at *10 (emphasis in original). 
32

presented the similarities that connected the series of these assaults to 

Defendant. Challenges to any flaws in the identification processes are 

without merit and insufficient to disturb the jury’s verdicts.84

Accordingly, the court concluded that, although the evidence was new and was 

neither cumulative nor impeaching under Purnell v. State,

85 it was not persuasive because 

the result probably will not change if a new trial were granted.

86

 The Superior Court also 

rejected Bass’s second constitutional challenge regarding the dismissal of the Daniels

indictment, largely on the grounds that the circumstances in Daniels were different.87 Bass 

does not appeal the Daniels holding.88

C. Contentions on Appeal 

We consider whether the Superior Court erred in denying Bass’s seventh motion for 

postconviction relief. 

1. Bass’s Contentions

Bass asserts that the Superior Court committed three distinct legal errors in denying 

his motion. First, he claims the court erred in finding that the MHC evidence at Bass’s

trial was “limited” and in finding that the new evidence was not persuasive according to 

the standard set forth in Purnell.

89

 He argues that, although there was limiting language to 

84 Id. at *12. 

85 254 A.3d 1053 (Del. 2021). 

86 Super. Ct. Op., 2022 WL 2093956, at *10–11. 

87 Id. at *13–14. 

88 Moreover, Bass does not mention the holding in his opening brief, and therefore, any argument 

regarding Daniels is waived. Supr. Ct. R. 14(b)(vi)(A)(3).

89 Opening Br. at 36, 40. 
33

the effect that “hair comparisons are not like fingerprints” and are not 100% accurate90 and 

that Podolak could not say with absolute certainty that the hair came from Bass, or even 

A.S. or S.K., during cross-examination, “the problems began on redirect examination.”91 

Bass points to Podolak’s statements on redirect examination, where Podolak testified that:

(i) he is more adept at identifying and comparing “negroid hairs” than “caucasian or 

mongoloid hairs;”

92 (ii) although defense attorneys have disputed FBI examiners’ 

testimony for years because of lack of statistics, there was a study (i.e., the Minnesota 

Study) wherein an examiner used the FBI technique used by Podolak and determined a 

match 100% of the time;93 and (iii) he had performed over 3,000 microscopic hair 

comparisons and had yet to find any hair from two different individuals where he could not

distinguish between their hair characteristics.

Bass argues that any limiting language that may have cured the error during crossexamination was nullified by Podolak’s testimony on redirect. The minimal recross, in 

which Podolak testified that he “agreed that two hairs from the same head might not be 

microscopically similar,” was insufficient to overcome the damage caused by Podolak’s 

testimony during redirect examination.94 

90 Id. at 37 (quoting App. to Opening Br. at A67 (A. Podolak Cross-Examination Test. at C95:6–

7)). 

91 Id. at 38. Bass submits that “had the questioning stopped there, the testimony would have been 

sufficiently limited, and the Superior Court would be correct.” Id. at 38. 

92 App. to Opening Br. at A73 (A. Podolak Redirect Test. at C101:12–15). 

93 Id. at A78 (A. Podolak Redirect Test. at C106:3–7). 

94 Id. at A80 (A. Podolak Redirect Test. at C108:1–7).
34

Second, Bass contends that the Superior Court erred in holding that the result of his 

trial would not change if there had been no microscopic hair evidence. He argues that 

“[t]he crucial issue at trial was identification,”

95 and that identity was established through 

Podolak’s overstated testimony, and not sufficiently established by the remainder of the 

evidence.

96

 He argues that “[e]very identification in the case was weak, contradictory, or 

induced by police or [Delaware] DOJ personnel.”97

In support of this claim, Bass points out that each witness had a limited amount of 

time to view the attacker. He underscores that S.K. never identified her attacker before 

trial, in spite of the fact that she underwent hypnosis, viewed several photo lineups, and a 

live lineup (in which she chose a Wilmington police officer). He suggests that her in-court 

identification was flawed because the Delaware DOJ had told her that they had evidence 

to believe the defendant, who would be sitting at one of the tables in front, was her attacker. 

Bass argues that the identification was weak in A.S.’s case as well. A.S. never 

positively identified Bass in court, instead saying that Bass resembled her attacker.98 She 

also did not identify Bass’s shoes as the ones she saw on her attacker during the assault, 

instead saying they were the right color but a different material. 

Finally, as to S.M., he notes that S.M. never identified Bass, and the identifications 

from the State’s two eyewitnesses were flawed for several reasons. First, the only 

95 Opening Br. at 41.

96 Id. 

97 Id. at 43. 

98 App. to Opening Br. at A249 (A.S. Trial Test. at 143:7–8). 
35

eyewitness to positively identify Bass was Ms. Shaw, and her photo identification was 

weak, and her in-court identification was tainted because of the detective’s disclosure to 

her after she identified Bass in the photo lineup that Bass was the defendant. Second, the 

photo lineup identification of the second witness, Mr. Reynolds, was questionable because 

Mr. Reynolds only had a brief, obstructed view of the perpetrator. 

Third, Bass contends that the trial court misread this Court’s holding in Purnell, 

and, as a result, it erred in holding that he was required to show that another individual 

committed the crimes for which Bass was convicted. He argues that a petitioner alleging 

actual innocence need not establish that someone other than the defendant committed the 

crime. 

Lastly, Bass argues that he has met his heavy burden of establishing entitlement to 

relief under Rule 61(d)(2) because he has met all three prongs of the test we set forth in 

Purnell. Since the Superior Court held that Bass met two of the prongs — the evidence is 

“new” and not “merely cumulative or impeaching” — Bass focuses on the third prong, 

namely, whether the outcome of the trial will probably change because of the new evidence. 

Bass argues that without Podolak’s testimony, “[t]he remaining evidence of identification 

was weak and did not amount to proof beyond a reasonable doubt.” Further, the 

overstatements in Podolak’s testimony were not cured by limiting statements. And, 

according to Bass, Podolak’s testimony on redirect that he had never been wrong in over 

3,000 tries, and his reference to the Minnesota Study testimony, overpowered any limiting 

statements. Therefore, he contends that the result of the trial will probably change if the 

MHC evidence were excluded. 
36

2. The State’s Response

First, the State argues that the Superior Court was correct in finding that the 

USDOJ/FBI admissions constitute “new” evidence that is not merely cumulative or 

impeaching and that Podolak’s testimony contained sufficient limiting statements. It points 

out that this Court confronted the same issue on direct appeal when Bass challenged the 

introduction of the Minnesota Study and decided that its introduction was not fundamental 

because Podolak had made concessions that MHCs were not faultless. Second, the State 

argues that Bass has not shown that a person other than Bass committed the attacks, and

that the correct reading of Purnell is that “the new evidence must show that someone other 

than the movant committed the crime, not specifically identify that other person.”99 Third, 

the State argues that even if the MHC testimony had not been admitted, the outcome of the 

trial would not have changed. Finally, the State argues that even if this Court were to reach 

Bass’s underlying due process claim, that claim is meritless.100 

3. Areas of Agreement

At the outset we note that the parties agree that the standard we set forth in Purnell

applies to our resolution of this appeal, and that under Purnell, the USDOJ revelations 

about MHC evidence are “new.”

99 Answering Br. at 35.

100 Id. at 52–53 (quoting Swan v. State, 248 A.3d 839, 878 (Del. 2021) (due process violated where 

State knowingly uses false testimony and if there is “any reasonable likelihood that the false 

testimony could have affected the judgment of the jury”)).
37

As to the first point, Bass correctly notes that the USDOJ waived all procedural 

defenses and statutes of limitations in cases with identified MHC errors. He also notes that 

courts in Massachusetts101 and Pennsylvania,102 as well as federal courts hearing habeas

petitions, have waived defenses and procedural bars in such cases. Further, certain state 

legislatures have acted to eliminate procedural bars for petitioners whose convictions are 

potentially tainted by scientific evidence later discovered to be flawed. There is no doubt 

that the revelations regarding MHC expert testimony are extremely troubling. Close 

scrutiny of these cases is required. We look to the facts of each case and the new evidence 

to determine whether the pleadings carry the heavy burden set forth in Purnell.

103

 

101 Commonwealth of Massachusetts v. Perrot, 2016 WL 380123 (Mass. Super. Ct. Jan. 26, 2016). 

102 Commonwealth v. Chmiel, 240 A.3d 564, 569 (Pa. 2020).

103 An exchange at oral argument suggests that the number of any other such cases in Delaware

may be very limited: 

The Court: Are you able to tell us, one last question on this, if you’re comfortable 

and able, are there a substantial number of these cases still working their way 

through the Delaware Justice system? 

Counsel: We found five, Your Honor. We found five, and I think I handled them 

all. And, there was the Crump case, I moved to withdraw. I recall two others in 

which I moved to withdraw because the issue wasn’t whether the hair examiner, in 

other words, the defense was that the sexual intercourse was consensual, not an 

identity case, so those didn’t go anywhere. This is the only case that has actually 

resulted in a substantive motion for postconviction relief. I am not aware of any 

other cases, Your Honor, there could be, I just don’t know.

Oral Argument at 9:07–10:00, Bass v. State, No. 218, 2022, available at 

https://livestream.com/delawaresupremecourt/events/10806463/videos/235883011 [hereinafter 

Oral Argument]; see also A1001C (Letter to Commission Requesting to Supplement the Record, 

dated Dec. 10, 2018). In State v. Crump, for example, we affirmed the Superior Court’s denial of 

the defendant, Crump’s, successive Rule 61 motion after the USDOJ/FBI informed defendant that 

the FBI’s hair and fiber expert had committed errors in his testimony at the defendant’s trial. 2017 

WL 6403510, at *1–2 (Del. Super. Dec. 14, 2017), aff’d, Crump v. State, 194 A.3d 16, 2018 WL 

3769261, at *1 (Del. Aug. 7, 2018), cert. denied, Crump v. Delaware, 139 S. Ct. 1400 (2019)
38

As discussed above, Rule 61(i)(2) prohibits this Court from considering a second or 

successive motion for postconviction relief unless the defendant can meet one of the 

exceptions laid out in Rule 61(2)(i) or (ii).104 We are bound by this Rule unless and until 

we amend our Rules or unless and until the Delaware General Assembly creates an 

exception to procedural bars for defendants challenging their convictions due to improper 

MHC evidence. Here, the Superior Court determined that it “need not consider the 

applicability of other jurisdictions actual/factual innocence tests since Delaware’s 

requirements are fully set out under Purnell and where [Bass] later tailored his arguments 

in this appeal under this applicable rubric.”105 At oral argument before this Court, Bass 

agreed that the standard set forth in Purnell applies.106 

(mem.). In that case, new DNA testing positively identified the defendant as the contributor of 

DNA found on the victim’s pubic comb. See Crump, 2017 WL 6403510, at *2.

104 Super. Ct. Crim. R. 61 (“A second or subsequent motion under this rule shall be summarily 

dismissed, unless the movant was convicted after a trial and the motion . . . pleads with particularity 

that new evidence exists that creates a strong inference that the movant is actually innocent in fact 

of the acts underlying the charges of which he was convicted . . . .”). 

105 Super. Ct. Op., 2022 WL 2093956, at *8 n.132. 

106 Bass’s counsel stated that its references to other state’s legislative changes regarding procedural 

bars were illustrative only: 

The Court: You have five pages in your opening brief where you talk about what 

other jurisdictions have done regarding these situations, but then you come back to 

the Purnell case. It’s your position, I take it, that our standard of Purnell is what 

governs here. 

Counsel: I mean to be illustrative of other jurisdictions who have been proactive 

about this issue. The United States Department of Justice has waived all procedural 

defenses. The American Bar Association has encouraged all jurisdictions to do so. 

States have passed legislation regarding change or newly discovered science, flaws

in prior science. I am making the argument based on this Court’s holding in 

Purnell. 

Oral Argument at 17:15–17:59.
39

As to the “newness” point, we agree with the Commissioner and with the Superior 

Court that the revelations about MHC uncovered by the USDOJ/FBI report constitute 

“new” evidence such that Bass has satisfied the newness prong of the actual innocence 

exception. The State does not disagree. Evidence is new “where it was ‘discovered since 

trial, and the circumstances must be such as to indicate that it could not have been 

discovered before trial with due diligence.’”107 Here, the Joint Statement was made public 

in 2015, decades after Bass’s trial. 

III. Standard of Review

This Court reviews a trial court’s denial of a motion for postconviction relief for 

abuse of discretion.108 “Nevertheless, we carefully review the record to determine whether 

‘competent evidence supports the court’s findings of fact.’”

109

 We review legal or 

constitutional questions de novo.

110

IV. Analysis

A. The Applicable Standard for Actual Innocence Postconviction Claims

Superior Court Criminal Rule 61 governs motions for postconviction relief in 

Delaware.111 Since the instant motion for postconviction relief was filed on April 26, 2018,

107 Purnell, 254 A.3d at 1097 (quoting Lloyd v. State, 534 A.2d 1262, 1267 (Del. 1987)).

108 Swan, 248 A.3d at 855. 

109 Neal v. State, 80 A.3d 935, 941 (Del. 2013) (quoting Zebroski v. State, 822 A.2d 1038, 1043 

(Del. 2003), impliedly overruled on other grounds as recognized in Steckel v. State, 882 A.2d 168, 

171 (Del. 2005)). 

110 Green v. State, 238 A.3d 160, 173 (Del. 2020). 

111 Super. Ct. Crim. R. 61. 
40

the current version of Rule 61, with the 2014 amendments, applies.112 The current version 

of Rule 61(d)(2) precludes Delaware courts from hearing any second or subsequent motion 

for postconviction relief, “unless the movant was convicted after a trial” and the motion 

meets one of two statutory exceptions.113 Because this is Bass’s seventh motion for 

postconviction relief, he must meet one of the exceptions before a court can reach the merits 

of his underlying constitutional claims. 

Under Rule 61(d)(2)(i), an untimely postconviction motion is allowed if it “pleads 

with particularity that new evidence exists that creates a strong inference that the movant 

is actually innocent in fact of the acts underlying the charges of which he was convicted.”114 

This first prong is referred to in our jurisprudence as the “actual innocence exception.” 

Bass claims relief from Rule 61 under the actual innocence exception. A movant can only 

prevail on the merits if the motion satisfies the foregoing pleading requirements. 

Moreover, “[i]nnocence of the ‘acts underlying the charges’ requires ‘more than innocence 

112 See Purnell, 254 A.3d at 1094 (“This Court repeatedly has held that a motion for postconviction

relief is to be adjudicated in accordance with Rule 61 as it exists at the time the motion is filed.”) 

(citing Bradley v. State, 135 A.3d 748, 757 n.24 (Del. 2016); Brochu v. State, 133 A.3d 558, 2016 

WL 690650, at *4 n.24 (Del. Feb. 19, 2016) (TABLE); Starling v. State, 130 A.3d 316, 332 n.95 

(Del. 2015)). 

113 Super. Ct. Crim. R. 61(d)(2).

114 Id. 61(d)(2)(i). Under Rule 61(d)(2)(ii), an untimely postconviction motion is also allowed if 

it “pleads with particularity a claim that a new rule of constitutional law, made retroactive to cases 

on collateral review by the United States Supreme Court or the Delaware Supreme Court, applies 

to the movant’s case and renders the conviction or death sentence invalid.” Id. 61(d)(2)(ii). This 

exception is not implicated here. 
41

of intent; it requires new evidence that a person other than the petitioner committed the 

crime.’”115

We most recently examined the actual innocence exception to the procedural bar of 

Rule 61(d) in Purnell. There, we clarified the standard for actual innocence, including 

“when evidence is ‘new’” and “what showing creates a ‘strong inference’ of innocence:”

To qualify for an exception to Rule 61’s procedural bars against untimely, 

successive motions, [a defendant] must identify with particularity new 

evidence that creates a strong inference that he is actually innocent in fact of 

the acts underlying the charges. Stated differently, [a defendant] must 

present additional evidence that was not available at trial and would not have 

been despite his exercise of due diligence. [The defendant] must also 

convince us that the new evidence, when considered in the context of all the 

relevant evidence by a properly instructed jury, is such as will probably 

change the result if a new trial were granted.116

We observed that “[s]atisfying the actual innocence test is, by design, a heavy 

burden, and such meritorious claims are exceedingly rare.”117 We found that the defendant, 

Mark Purnell (“Purnell”), qualified for the actual innocence exception to Rule 61’s 

procedural bar.118 It was the first time this Court had found a defendant eligible for such 

relief. 

Purnell’s case consists of the following extraordinary facts. In January 2006, two 

115 Purnell, 254 A.3d at 1095 (quoting State v. Taylor, 2018 WL 3199537, at *7 (Del. Super. June 

28, 2018), aff’d, 206 A.3d 825, 2019 WL 990718 (Del. Feb. 27, 2019) (TABLE)). 

116 Id. at 1060. In doing so, we affirmed the test substantively articulated in Lloyd v. State and 

applicable to federal habeas corpus cases per Schlup v. Delo, 513 U.S. 298 (1995). 

117 Purnell, 254 A.3d at 1100. 

118 Id. at 1060. By the time we heard Purnell’s claim, Purnell had spent fourteen years of his life 

in prison. Instead of remanding Purnell’s case to the Superior Court to hold an evidentiary hearing 

based on our guidance on the standard for actual innocence, we ordered a new trial. Id. 
42

armed assailants shot and killed Tameka Giles in Wilmington after a botched robbery 

attempt. At the time, an eyewitness and Mrs. Giles’s husband, who was with her at the 

time of the murder, identified Ronald Harris and Kellee Mitchell, respectively, as the 

assailants. Later, when searching Kellee Mitchell’s apartment, police found a .38-caliber 

revolver hidden in the ceiling tiles outside of the apartment. Ronald Harris’s brother, 

Dawan Harris, who Ronald strongly resembled, was in the apartment at the time. Dawan 

Harris admitted the gun belonged to both Mitchell and him. With the assistance of courtappointed counsel, Dawan Harris pled guilty to a weapons charge for possession of the 

revolver. He was a suspect in the Giles murder initially. Two different witnesses had 

implicated him. 

A year later, in January 2007, an individual named Corey Hammond was arrested 

on drug charges. He implicated Purnell in the Giles murder. Later that month, Kellee 

Mitchell, also one of the original suspects, implicated Purnell in the murder. Purnell and 

his alleged accomplice, Ronald Harris, were arrested and charged. 

The Superior Court appointed Purnell an attorney to defend him at the murder trial. 

Purnell’s court-appointed attorney was the same one who had represented Dawan Harris

in the Possession of a Deadly Weapon by Persons Prohibited (“PDWBPP”) charge 

resulting from his possession of the .38-caliber revolver. Before trial, Purnell’s trial 

counsel brought the conflict of interest to the trial judge’s and the State’s attention, 

including the defense theory that Dawan Harris might by the true killer.119 The trial judge 

119 As our opinion in Purnell explained:
43

denied trial counsel’s motion to withdraw, ordering him to proceed as Purnell’s trial 

advocate.

In April 2008, a Superior Court jury convicted Purnell of Murder Second Degree 

and other related charges.

120

 The evidence presented to the jury consisted of: (1) claims 

made by Corey Hammond regarding claims Purnell and Ronald Harris made around the 

time of the murder, (2) claims made by Kellee Mitchell, that Purnell had bragged about 

having committed the murder, and (3) the testimony of Ronald Harris, who agreed to testify 

as part of a plea deal wherein prosecutors would drop his pending murder and weapons 

charges and recommend a sentence of three years. This Court affirmed Purnell’s

conviction on his direct appeal wherein he did not raise the conflict of interest issue. 

After his conviction and direct appeal, Purnell filed a 133-page handwritten pro se 

Rule 61 motion “raising ten grounds for relief, of which the first was an objection to his 

trial counsel’s conflict of interest.”121 Yet, “[a]fter he obtained representation, 

Trial Counsel noted that the defense had multiple theories involving Dawan. One 

was the belief that Mitchell and Dawan were the true robbers, with the eyewitness 

misidentifying Dawan as Ronald. Another was that the robbers were Ronald Harris 

and either Mitchell or Dawan, and that Ronald was falsely implicating Purnell as 

the accomplice in retaliation for Purnell ‘snitch[ing]’ on them for shooting this .38-

caliber out of a window in Compton Towers that prompted them getting in trouble. 

However, presenting those theories would require Trial Counsel to take positions 

directly adverse to Dawan’s interests in the Giles investigation, painting him as the 

murderer directly, or asserting that the weapon Dawan had pleaded guilty to 

possessing was the murder weapon. But Trial Counsel was ethically precluded 

from doing so, and hence from advancing these potential defensive strategies.

Id. at 1109.

120 Id. Purnell was convicted of Murder Second Degree, Attempted Robbery First Degree, 

Conspiracy Second Degree, PDWBPP, and two counts of PDWDCF. Id. at 1087.

121 Id. at 1059. In his second motion for postconviction relief, Purnell claimed that the omission 

of the conflict issue was error, but in another extraordinary occurrence, Purnell’s first 
44

postconviction counsel filed an amended motion asserting only three grounds and did not 

include the conflict claim.”122 The Superior Court denied Purnell’s amended Rule 61 

motion. This Court affirmed the denial of relief. 

Then, in May 2018, Purnell filed a second postconviction motion alleging 10

grounds for relief. His first ground for relief was that he was actually innocent, and his 

second was that his trial counsel was conflicted due to his prior representation of Dawan 

Harris, prejudicing Purnell’s case and denying him effective assistance of counsel. Several 

grounds asserted that trial counsel was ineffective for failing to develop exculpatory 

evidence at trial, including evidence implicating Dawan Harris. Other grounds related to 

evidence that Kellee Mitchell’s, Corey Hammond’s, and Ronald Harris’s statements were 

unreliable and coerced, and to evidence that Purnell lacked the physical mobility at the 

time to commit the crime. In sum, Purnell’s claim of actual innocence was based on a 

theory that his trial counsel was conflicted, and because trial counsel was denied 

permission to withdraw, Purnell was unable to pursue a defense theory that two other 

people, including his counsel’s prior client, actually committed the murder.

1. The “Newness” Requirement 

In Purnell, we explained that, to qualify for Rule 61’s actual innocence exception,

“[a defendant] must present additional evidence that was not available at trial and would 

postconviction counsel died before oral argument on the first motion. Thus, we could never know 

why counsel chose to exclude Purnell’s conflict of interest claim as a basis for postconviction 

relief. Accordingly, and unfortunately, this Court did not hear about the conflict of interest that 

tainted Purnell’s trial until his second motion for postconviction relief was filed, 14 years after 

Purnell’s incarceration.

122 Id. at 1059–60.
45

not have been despite [the defendant’s] exercise of due diligence.”

123

 There, the Superior 

Court had found that Purnell could not meet this burden because “almost all of the evidence 

Purnell submits could have been obtained by a rigorous investigation prior to trial by 

unconflicted counsel.”

124

 We held the trial court erred in its conclusion because “the 

relevant inquiry is whether [the defendant] could have obtained and presented the evidence 

of his innocence at trial with the exercise of due diligence.”125 Because Purnell’s trial 

counsel was conflicted and the trial court had refused to let Purnell’s trial counsel 

withdraw, Purnell was barred from accessing the evidence he presented as the basis for his 

second Rule 61 postconviction motion.126 

Therefore, we found that the evidence submitted by Purnell — particularly evidence 

that implicated Dawan Harris, Purnell’s trial counsel’s former client — was “new” within 

the meaning of the actual innocence exception because Purnell himself would not have 

been able to discover it through the exercise of due diligence.127 Moreover, we found that 

“[s]ince much of [Purnell’s] evidence goes to proving facts incompatible with his guilt, it 

123 Id. at 1060. 

124 Id. at 1100.

125 Id. (emphasis added). 

126 Id. at 1100, 1113. We found that Purnell did not waive the conflict at the time of trial. Id. at 

1101. 

127 Id. at 1100. We found that “[m]uch of the evidence Purnell presents, though knowable or even 

known at the time, was unavailable to him at trial because his counsel was not permitted to 

withdraw and was precluded from obtaining or presenting it due to his ethical duties to his former 

client.” Id. at 1060 (emphasis in original). 
46

also satisfies the requirement that [evidence] goes beyond being merely cumulative or 

impeaching.”128 

2. The “Persuasiveness” Requirement 

As to the second prong of the actual innocence inquiry, we explained in Purnell that 

the defendant must “convince us that the new evidence, when considered in the context of 

all the relevant evidence by a properly instructed jury, is such as will probably change the 

result if a new trial were granted.”

129

 “[T]he court must assess all of the evidence, including 

that which was properly excluded and that which was wrongfully admitted.”130

Purnell presented a significant amount of new evidence in his second Rule 61 

motion, which we divided into six categories: (1) ballistic and firearm evidence

undermining the only physical evidence tying Purnell to the crime;

131 (2) Kellee Mitchell’s 

128 Id. at 1113.

129 Id. at 1060, 1100. 

130 Id. at 1113 (emphasis in original); see also Schlup, 513 U.S. at 327–28 (“[T]he emphasis on 

‘actual innocence’ allows the reviewing tribunal also to consider the probative force of relevant 

evidence that was either excluded or unavailable at trial. . . [it] must make its determination 

concerning the petitioner’s innocence in light of all the evidence, including that alleged to have 

been illegally admitted (but with due regard to any unreliability of it) and evidence tenably claimed 

to have been wrongly excluded or to have become available only after the trial.”).

131 Purnell presented expert testimony that the spent 9mm shell casing (found 40 to 50 feet from 

where the shooting occurred) could not have been ejected from the murder site since spent casings 

could not be ejected that far. This spent casing was the only physical evidence presented in 

Purnell’s trial. Purnell argued that the new ballistic evidence demonstrated that the murder weapon 

was likely a revolver (which does not expend shell casings at all), potentially the revolver which 

Kellee Mitchell and Dawan Harris (Purnell’s trial counsel’s former client) were charged with 

unlawfully possessing. Purnell, 254 A.3d at 1114.
47

recantation of testimony that was heavily relied on by the State at trial;

132 (3) other evidence 

inculpating Dawan Harris and Kellee Mitchell; (4) evidence undermining Ronald Harris’s

testimony;133 (5) evidence undermining Corey Hammond’s testimony;134 and (6) medical 

evidence of Purnell’s physical incapacity.135

We concluded that much of the new evidence went to proving facts incompatible 

with Purnell’s guilt, and satisfied the requirement that it went beyond being merely 

cumulative or impeaching. Thus, the key factor in Purnell’s case was that “[t]rial 

[c]ounsel’s actual conflict prevented him from investigating, developing and presenting 

any evidence that implicated Dawan Harris, his former client.”136 In other words, trial 

counsel was not allowed to explore the potential of Dawan Harris or Kellee Mitchell as 

possible perpetrators in any way: there was no pre-trial investigation and no crossexamination at trial. For example, Purnell’s trial counsel could not present evidence that 

it was a revolver, not a semi-automatic gun that Purnell was accused of possessing, that 

132 Mitchell denied the truth and voluntariness of his prior statement. There was also new 

testimony indicating that Mitchell and Dawan Harris were in possession of the potential murder 

weapon prior to the murder, a fact contradicting Mitchell’s prior testimony. Id. at 1116. 

133 We found that the new evidence — sworn statements from Ronald Harris’s (Purnell’s alleged 

co-defendant) mother and step-father indicating that Ronald Harris consistently maintained his 

innocence, which contradicted Ronald Harris’s trial testimony — was merely impeaching. Id. at 

1116–17. 

134 The evidence indicated that Hammond was a career criminal, testifying to avoid jail time. We 

found this evidence to be merely impeaching. Id. at 1117–18.

135 Another extraordinary fact in Purnell’s case is that he had undergone knee surgery eight days 

before the crime was allegedly committed, after he had accidentally shot himself. A medical expert 

submitted his opinion that Purnell would have been unable to run at the time of the crime, a fact 

established by an eyewitness who testified that the two killers sprinted away after shooting Mrs. 

Giles. Id. at 1119.

136 Id. at 1108. 
48

killed Mrs. Giles, because trial counsel had defended Dawan Harris in his prosecution for 

possession of a revolver. Relatedly, the exculpating evidence from Mitchell’s recantation 

went to possession of the murder weapon. This too was evidence that Purnell’s trial 

counsel was precluded from pursuing given his prior representation of Dawan Harris. 

Evaluating Purnell’s persuasive new evidence in light of trial counsel’s conflict, and 

the highly unusual procedural circumstances which prevented Purnell’s raising the issue 

earlier, we concluded: “Taken as a whole, and based on the State’s own description of its 

case from its opening statement and closing argument at trial, the evidence Purnell presents 

is the rare case that overcomes the daunting burden of showing that it would probably 

change the result if a new trial were granted.”

137

 We noted further that the statements on 

which the State relied almost exclusively at trial already suffered from credibility 

problems,138 and the facts surrounding the jury verdict indicated that “[t]he State’s case, in 

other words, was a close one even when Purnell’s defense was constrained by a severe 

ethical conflict which his trial counsel had noted and raised.”139 

In light of this conclusion, and the fact that Purnell had already spent approximately 

half of his life in prison following “a manifestly unfair trial,” we reversed Purnell’s 

conviction, and remanded for a new trial, instead of an evidentiary hearing.140 The new 

trial never occurred. In yet another extraordinary occurrence, approximately nine months 

137 Id. at 1120.

138 Id.

139 Id. at 1122 (internal footnote omitted).

140 Id. at 1060.
49

after we issued our opinion, the State, through a Deputy Attorney General, filed a notice 

of nolle prosequi with the Superior Court, ending its pursuit of a new trial in the “interest 

of justice.”

141

 

The notice disclosed that during the State’s renewed review of the original police 

file from 2006-2008, “prosecutors identified potentially exculpatory evidence that may not 

have been provided to [Purnell] in the first trial.”142 Specifically, it referred to a witness 

interview taken in June of 2006, during the original investigation wherein the witness 

“claimed to have overheard a conversation in which another individual [not Purnell]

discussed shooting Ms. Giles.”143 The State lacked “any documentation indicating the 

interview was ever turned over to [Purnell] during the first trial in 2008.”144 It further noted

that “[i]f [the State] cannot show that an interview where another person was overheard 

discussing shooting a victim was provided to the defense in the initial trial, it raises 

sufficient questions that we cannot ethically proceed in the instant case.”

145 Accordingly, 

“[a]fter careful consideration of all the evidence in the case, the State has determined it can

no longer ethically proceed.”146 

141 State v. Purnell, I.D. Nos: 0701018040, State’s Notice of Nolle Prosequi, at ¶ 8 (Del. Super.

Apr. 28, 2022). 

142 Id. at ¶ 3. The State lacked any documentation of an exculpatory interview being turned over 

to Purnell.

143 Id. at ¶ 4. 

144 Id. 

145 Id. 

146 Id. at ¶ 6. The State acknowledged the exculpatory nature of the 2006 interview and stated that 

it “will only proceed to trial in matters it believes there is a reasonable likelihood of conviction.” 

Id.
50

B. Whether the Superior Court Erred in Denying Relief

With the high standard we articulated in Purnell in mind, we now turn to Bass’s

claim for relief. For the reasons set forth below, we conclude that Bass has not met his 

heavy burden of “pleading with particularity new evidence that creates a strong inference 

that he is actually innocent in fact of the acts underlying the charges of which he was 

convicted.”147

1. Whether the Superior Court Erred in Finding the MHC Evidence was

“Limited”

Although the Superior Court agreed with Bass that the Joint Statement and 

USDOJ/FBI disclosures constitute new evidence, it held that “[c]onsidered in its totality, 

the impropriety of the expert’s testimony lacks the requisite force to impact the State’s case 

against [Bass].”148 This is because Podolak acknowledged at trial that MHC is “not like 

fingerprints; they are not a hundred percent accurate” and is not a basis for “absolute 

personal identification,” stating “the key word is ‘absolute.’”149 Further, Podolak 

acknowledged that he could not say with “a hundred percent surety” whether the hairs 

originated from the sexually assaulted victims (A.S. or S.K.) or from Bass.150 And Bass’s

“trial counsel effectively cross-examined him regarding these limitations and properly 

elicited inconsistencies in his testimony.”151

147 Purnell, 254 A.3d at 1122. 

148 Super. Ct. Op., 2022 WL 2093956, at *9. 

149 Id.

150 Id.

151 Id.
51

However, Bass argues that the problems with Podolak’s testimony came on redirect 

examination. He concedes that up until that point, Podolak’s testimony had been 

sufficiently limited on cross-examination.152 Bass cites three statements made by Podolak 

on redirect that undermine the limiting language elicited during cross-examination. 

First, Podolak testified that he is better at identifying and comparing “negroid hairs” 

than other types. Second, Podolak discussed the Minnesota Study and submitted it into 

evidence. Third, Podolak stated that out of 3,000 MHC reports, he had yet to find any hair 

from two different individuals “that I cannot distinguish between their hair 

characteristics.”153 

Of these statements, only the statements regarding the Minnesota Study were 

flagged by the 2015 Letter as “exceeding the limits of science.” However, we view the 

statements regarding Podolak’s impressive track record as being in the same vein as the 

Minnesota Study statements, and in any event, we consider the unflagged statements as 

well for completeness. We observe that on recross, Bass’s counsel elicited testimony that 

“you could have two samples from the same head and they would not be microscopically 

similar.”154 This recross testimony limited, at least to some extent, the two statements

raised by Bass on appeal but not flagged by the 2015 Letter. 

As for the testimony regarding the Minnesota Study, Podolak stated that: 

152 Bass acknowledges “[h]ad the questioning stopped there, the testimony would have been 

sufficiently limited, and the Superior Court would be correct. But the problems began on redirect 

examination.” Opening Br. at 38. 

153 Id. at 39 (quoting App. to Opening Br. at A78 (A. Podolak Redirect Test. at C106:21–22)). 

154 App. to Opening Br. at A512 (A. Podolak Recross Test. at C108:1–7).
52

[Referring to the Minnesota Study] Now, the conclusion then or what this 

all points out is that the morphology of human head hairs is an individual 

characteristic of identity, and that they are – this affirms that this is a 

good reliability or a very good ability of an analyst to take a questioned 

hair and match it to an individual in a crime situation.

155

Bass’s challenge to these statements is a refrain of his argument on direct appeal, wherein 

he argued that the admission of the study and the testimony constituted reversible error. 

We reviewed the Superior Court’s denial of Bass’s claim then, and we affirmed. We found 

no reversible error because Podolak did not rely on the study and his statements about its 

conclusions had been sufficiently limited.156 We are not persuaded to depart from that 

ruling. But even if we were, Bass’s claim fails because even considering the new evidence, 

which prompts us to assess the strength of his case without Podolak’s improper testimony, 

the result of the trial will probably be the same.157 We address this argument in Section 3 

below. 

2. Whether the Superior Court Erred in Holding that Bass Was 

Required to Establish Another Person Committed the Crimes

The Superior Court did not err in holding that Bass was required to establish another 

person committed the crimes. In Purnell, we stated “[i]nnocence of the ‘acts underlying 

the charges’ requires ‘more than innocence of intent; it requires new evidence that a person 

155 Id. at A78 (2015 Letter, A. Podolak Redirect Test. at C106:7–12) (emphasis added).

156 Id. at A703–04 (Denial of Direct Appeal at ¶ 8–9). 

157 We observe that the Commissioner carefully examined the facts without reference to the MHC 

testimony in part of her analysis. See Commissioner’s Report, 2021 WL 5984262, at *3 (stating 

that “[s]ince the issue presented herein is how material to Bass’ conviction was the error of the 

MHC evidence, the facts as set forth below in this section will not reference the MHC evidence in 

any respect”). 
53

other than the petitioner committed the crime.’”158 Bass argues that the Superior Court 

misread Purnell and improperly imposed “a requirement that Mr. Bass produce a different 

individual who committed these offenses.”159 He contends that Purnell, and the Superior 

Court’s decision in Taylor, stand for the more limited proposition that a defendant cannot 

qualify for the actual innocence exception to Rule 61 if the new evidence is only probative 

of the defendant’s lack of requisite intent to commit the crime of conviction.160

We do not believe the Superior Court construed Purnell to require a defendant to 

establish the actual perpetrator of the crime. Rather, the Superior Court’s conclusion that 

Bass’s new evidence is not probative of his “actual innocence” is consistent with our 

statement in Purnell and the Superior Court’s statement in Taylor, which we affirmed.161 

In Taylor, the defendant sought relief under the actual innocence exception of Rule 61

where his new evidence consisted of two forensic reports opining that Taylor lacked the 

requisite intent to be guilty of first-degree murder. The Superior Court in Taylor noted that 

whether new evidence probative of a lack of intent can satisfy the procedural bar of Rule 

61 was a matter of first impression. It turned to the Tenth Circuit’s decision in Long v. 

158 254 A.3d at 1095 (quoting Taylor, 2018 WL 3199537, at *7).

159 Opening Br. at 45. 

160 Id. at 44. 

161 As we noted earlier, our statement in Purnell — “[i]nnocence of the ‘acts underlying the 

charges’ requires ‘more than innocence of intent; it requires new evidence that a person other than

the petitioner committed the crime’” — is drawn from Taylor. Purnell, 254 A.3d at 1095 (quoting 

Taylor, 2018 WL 3199537, at *7). The Superior Court cites to both Purnell and Taylor in this 

portion of tis opinion. See Super. Ct. Op., 2022 WL 2093956, at *9 n.146. 
54

Peterson162 and the United States Supreme Court decision in Sawyer v. Whitley.

163

 In Long, 

the Tenth Circuit held that “actual innocence means factual innocence, not legal 

innocence.”164 And in Sawyer, the Supreme Court noted: 

A prototypical example of “actual innocence” in a colloquial sense is the case 

where the State has convicted the wrong person of the crime. Such claims 

are of course regularly made on motions for new trial after conviction in both 

state and federal courts, and quite regularly denied because the evidence 

adduced in support of them fails to meet the rigorous standards for granting 

such motions. But in rare instances it may turn out later, for example, that 

another person has credibly confessed to the crime, and it is evident that the 

law has made a mistake.165

Purnell was the “prototypical example” of “actual innocence” because he put forth 

evidence that the State had convicted the wrong person of the crime. In Purnell, the 

evidence pointed to other individuals as potential suspects, and we allowed the successive 

postconviction motion to move forward because Purnell presented evidence to that effect, 

which previously was unobtainable by him due to trial counsel’s actual conflict of interest. 

This does not mean that in every case a defendant must present to the court another 

individual who could have committed the crime; rather, the defendant needs to put forth 

evidence probative of the fact that the defendant did not commit the crime, i.e., factual 

innocence. 

162 291 F. App’x 209 (10th Cir. 2008). 

163 505 U.S. 333 (1992). 

164 291 F. App’x at 213.

165 Sawyer, 505 U.S. at 340–41.
55

Moreover, the Superior Court did not deny Bass’s claim because Bass failed to 

produce a specific individual who committed the crime. Instead, it emphasized that Bass’s

new evidence does not establish any fact that might exculpate him. As the Superior Court 

put it: “the new evidence does not exonerate [Bass].”166 And in this case, as discussed 

below, it does not convince us that when it is considered in the context of all relevant 

evidence by a properly instructed jury, it is such as will probably change the result if a new 

trial were granted. 

3. Whether Bass Met His Heavy Burden of Establishing That the New 

Evidence is Persuasive

Both the Commissioner and the Superior Court found that the MHC evidence was 

“new” and satisfied the newness prong of Rule 61(d)(2). The State has not challenged this 

finding, and we agree that the USDOJ/FBI disclosure regarding MHC evidence is new. 

The next question is whether the new evidence is persuasive. In accordance with 

the standard set forth above, we view Bass’s “new evidence in light of the evidence 

presented at trial and in light of the other unadmitted material.”167 Bass must establish

“that the new evidence, when considered in the context of all the relevant evidence by a 

properly instructed jury, is such as will probably change the result if a new trial were 

granted.”168 

166 Super. Ct. Op., 2022 WL 2093956, at *9. 

167 Purnell, 254 A.3d at 1114. 

168 Id.
56

Applying this standard, we find no error in the Superior Court’s conclusion that 

Bass did not meet his heavy burden of showing that the result of his trial will probably 

change. Nothing about Bass’s new evidence gives rise to an inference that Bass did not 

commit the robberies and burglaries. That is because the new evidence does nothing to 

exculpate Bass. As the Superior Court noted, MHC is not a “defunct science” and the FBI 

retested the hair samples in 2019, again concluding that Bass was “a possible source of the 

hair.”169 The FBI’s supplemental mtDNA testing did not eliminate Bass as the source, 

concluding instead that he “cannot be excluded as the source.” Nor did it indicate anyone 

else was the source of the hair.170 

169 Super. Ct. Op., 2022 WL 2093956, at *10.

170 See supra note 77. At oral argument before this Court, Bass agreed that it was appropriate for 

this Court to consider the mitochondrial DNA testing. The following exchange took place: 

The Court: You mention the mitochondrial DNA testing, and I think there’s 

something in the record suggesting that it’s possible for only 1 out of every 135 

African Americans to have the same mitochondrial DNA sequence obtained from 

the S.K. sample and from Bass. What, if anything, are we to do with that piece of 

evidence?

Counsel: Your Honor, in a retrial, I mean today, the issue on appeal is whether 

we’ve overcome a procedural bar, but let’s say hypothetically that there’s a retrial, 

that evidence, I concede would be admissible. Mitochondrial DNA cannot be used 

to identify an individual, according to the FBI’s report, unrelated people may have 

the same sequence of DNA on a particular strand, and Mr. Bass’s partial DNA 

sequence appeared in 11 out of 2,449 samples in the database of mitochondrial 

DNA. 

The Court: Can we consider those facts as we assess your showing of that 

evidence?

Counsel: Yes. It’s only fair. I have new evidence, 2015 DOJ investigation into all 

these thousands of cases, and I did not oppose, it’s incredible that they found 

evidence from 1983, we moved courthouses, we found it and so it was tested and I 

think it would be fair game in any retrial and also for consideration by this Court. 

But mitochondrial DNA as the court found, the Superior Court found, cannot be 
57

Although, the new evidence weakens a key element of the State’s case — the 

identification of Bass — there is substantial and sufficient other evidence supporting the 

jury’s finding that Bass was the perpetrator, and Bass’s new evidence does not undermine, 

in any way, the substantial other evidence the jury considered.

171

 We address this other 

evidence below. 

i. Modus Operandi 

As the Superior Court noted, “[t]he jury was free to consider the similarities in these 

cases”172 and “the independent culpability of [Bass] as to each assault or whether the series 

of assaults were committed by one assailant.”173 The similarities in the cases are many. 

More generally, each of the assaults took place in office buildings in the North Wilmington 

used as a means of identification, it would be evidence that would be presented by 

the State in retrial and it would be vigorously cross-examined as to the differences 

between mitochondrial DNA and nuclear DNA, where we routinely, when I do 

trials, see numbers like 1 in 7 trillion and things like that. 

Oral Argument at 10:01–12:02; see also App. to Opening Br. at A1004–05 (Stipulation and 

[Proposed] Order, dated Feb. 6, 2019) (stating that “Bass agrees to provide a DNA sample, which 

will be forwarded to the FBI as part of the DNA testing,” and that “[e]xcept as otherwise ordered 

by this Court, the results of the FBI’s analysis and testing under this stipulation shall be kept strictly 

confidential”); id. at A1006–09 (Stipulation and Order, dated Sept. 23, 2020) (reporting on the 

results of the mtDNA testing, stating that the evidence has been properly authenticated, that the 

results are no longer confidential, and ordering supplemental briefing deadlines).

171 As the Commissioner’s Report, 2021 WL 5984262, at *19, put it: 

In this case, with the exception of the overstatements of the MHC expert, all other 

aspects of the State’s case against Bass remain in place. The re-test results of the 

MHC evidence do not exonerate Bass in any respect. There have been no new 

discoveries of any factual evidence that calls into question the verdict. No physical 

evidence has surfaced that undermines the State’s case against Bass. The State’s 

case against Bass through direct and circumstantial evidence was substantial and 

remains in place.

172 Super. Ct. Op., 2022 WL 2093956, at *10. 

173 Id. at *11.
58

and Claymont area, within a few miles of each other and close to where Bass was living at 

the time. The victims were all young women who were working in the office buildings at 

the time of the attacks. The specifics of each attack, testified to by each victim, demonstrate 

a pattern of activity once the assailant entered the offices. The women explained that, upon 

entering their office and afterward, the assailant physically assaulted them or forcefully 

threatened them. Specifically, he shoved a screwdriver into the victim’s side (in the case 

of S.K. and A.S.), put his hand over their mouth, or hit them. He ordered the victims not 

to look at him and he obstructed their view of his face by covering their face, or his face, 

with clothing. The assailant robbed each victim by demanding both money, cash and 

checks, and their jewelry. 

Each victim testified that she was then kidnapped: the assailant forced the victim 

to move into another, secluded room in the office building, where he either physically or 

sexually assaulted her. In two cases, that of S.K. and A.S., the assailant tied the victim’s

hands and feet together with rope or wire found in the office, vaginally raped them, and 

then left them in the same room, tied up. Each rape lasted for a period of less than two 

minutes, during which the assailant had trouble maintaining an erection and did not 

ejaculate. The Superior Court found that the evidence indicates that the third victim, S.M.,

was not raped (in addition to being kidnapped and physically assaulted) only because she 

lost control of her bladder and relieved herself involuntarily. 

Finally, each of the three victims described their assailant’s physical appearance and 

demeanor in the same way at trial. They stated he was a Black male, between 20- to 30-

years-old, thin, and approximately 5’8” to 6’0” in stature. At trial, Bass was 32-years-old, 
59

5’11” and 20 pounds heavier than his arrest weight of 152 pounds. Two of the victims

further described their attacker as having a calm, soft, or soothing voice. Moreover, each 

victim, as well as Christine Shaw, identified the assailant as being well-dressed, in office 

clothes or golf clothes. A.S. and Mr. Reynolds, a building manager in the office building 

where S.M. was attacked, identified the assailant as wearing gray loafers.

ii. Corroborating Crimes and Testimony 

Bass concedes that “it is certainly true that certain elements of the crimes established 

a modus operandi,” but he claims that this “only established the same person very likely 

committed all three attacks,” not that he committed the attacks.174 But the jury heard the 

other evidence at trial, including Bass’s own testimony, supporting their ultimate 

conclusion that Bass committed each of the attacks, and specifically tying Bass to two of 

the victims. This evidence does not rely, in any respect, on MHC evidence, and it is

persuasive circumstantial evidence supporting the Superior Court’s ruling. 

First, the jury heard testimony from Bass’s long-time friend, Ms. Schoell. Ms. 

Schoell’s testimony “established a nexus between [Bass] and the offices of at least two of 

the victims.”175 She confirmed that Bass lived with her in Claymont at the time each attack 

occurred, and that Bass and she engaged in a scheme wherein they would break into office 

buildings to steal cash and checkbooks. When doing so, Bass would dress up like an office 

worker to avoid detection. Ms. Schoell specifically testified that she and Bass had been to 

174 Opening Br. at 41. 

175 Super. Ct. Op., 2022 WL 2093956, at *10.
60

the office building where S.M. was later attacked. Ms. Schoell confirmed that she cashed 

two of S.M.’s checks, which Bass had stolen from the office on that day — July 16, 1982, 

the day of S.M.’s office party. She further testified that she cashed checks, which Bass had 

given her, belonging to A.S.’s co-worker, days before the attack on A.S. occurred. 

Bass’s own testimony partially corroborated that of Ms. Schoell. Bass testified that

he supported himself by stealing checks and other valuables from office buildings in the 

Wilmington area. The jury also heard that when Bass would commit these robberies, he 

would dress up as an office worker to avoid detection. Bass further stated that Ms. Schoell 

would drive him to the locations where he would commit the thefts. However, he denied 

having been to any of the victim’s office buildings, or stated he could not recall whether 

he had been, and he denied raping or assaulting anyone. Both Bass and Ms. Schoell 

confirmed that the gray loafers identified by more than one witness at trial, belonged to 

Bass. 

iii. Victim and Witness Identifications

Finally, the State presented either witness or victim identification testimony as to 

each of the assaults. S.K. positively identified Bass as her attacker in court. A.S. stated 

that Bass resembled her attacker, but she could not be certain it was him. She had 

previously picked him out in two prior photo lineups as the man most resembling her 

attacker. Although the final victim, S.M., never saw her attacker’s face, two eyewitnesses 

gave testimony at trial in favor of the State. One eyewitness, Ms. Shaw, positively 

identified Bass as being in the office building on the day of S.M.’s assault and did so both 

prior to trial and at trial. The second, Mr. Reynolds, selected Bass as the man he had seen 
61

in the office that same day from a photo lineup based on the “definite formation” of the 

man’s forehead. 

Bass argues that “[e]very identification in the case was weak, contradictory, or 

induced by police or [Delaware] DOJ personnel.”176 The Superior Court found that, in 

each case, the record demonstrated that each identification had been challenged on crossexamination, the jury was free to weigh the credibility of the identification, and the State 

established Bass’s guilt.177 

(A) S.K.

S.K. failed to identify Bass as her attacker prior to trial but unequivocally identified 

him at trial. Bass argues that this identification was tainted because the State told S.K. that 

Bass, whom they believed was her attacker, would be seated at one of the tables in the 

courtroom. However, Bass’s trial counsel cross-examined S.K. as to her identification of 

Bass. S.K. testified that the prosecution had no influence on her and that she “didn’t know 

if [she] was going to walk in and it was going to look exactly like him.”178 She explained, 

during her testimony, that the photos did not “really show it all” and that once she saw Bass 

in person, she was certain of his identity as her attacker.179 The jury was free to make a 

credibility determination as to S.K’s testimony. 

176 Opening Br. at 43. 

177 Super. Ct. Op., 2022 WL 2093956, at *12.

178 Id. at *11 n.157; accord App. to Opening Br. at A171 (S.K. Trial Test. at 65:17–18).

179 Super. Ct. Op., 2022 WL 2093956, at *3, *3 n.54; accord App. to Opening Br. at A174 (S.K. 

Trial Test. at 68:9–10).
62

(B) A.S. 

A.S. never positively identified Bass, either in court or prior to court. She instead 

chose Bass out of two photo lineups as most resembling her attacker and told the jury as 

much at trial. Bass takes issue with A.S.’s prior identification of Bass in the second photo 

lineup she viewed because Bass’s photo was the only one which remained from the first 

photo lineup to the second, and the photograph of the one other person who A.S. stated 

resembled her attacker had been removed from the lineup. Bass also argues that A.S.’s

testimony was weak evidence of identity because she failed to identify Bass’s gray loafers 

as the shoes worn by her attacker. 

We confronted Bass’s first argument regarding A.S.’s flawed photo lineup on direct 

appeal and found that the second photo lineup was not unduly suggestive.180 We noted that 

any misstatements by the prosecution came after A.S. had viewed the second photo lineup, 

and that the State withdrew the third photographic array evidence from the case. Moreover, 

we found that A.S. had been subject to cross-examination and argument concerning the 

weight to be accorded the evidence.181 Bass’s new evidence does not implicate A.S.’s

photo lineup identification and we find no reason to depart from this Court’s prior ruling. 

As for Bass’s shoes, A.S. testified that the color of the shoes was the same as those 

of her attacker and that the color was unusual. She testified that the shoes were “very 

180 See supra Part II.B.2. 

181 App. to Opening Br. at A706 (Denial of Direct Appeal at ¶ 13).
63

similar except for the texture, as [she] remember[ed] it.”182 Even though A.S. failed to 

match the shoes as those exactly of her attacker, her testimony is still probative of her 

attacker’s identity as Bass: it corroborates that her attacker dressed like an office worker, 

like Bass, and owned gray loafers, like Bass.

(C) S.M. 

Finally, Bass takes issue with the eyewitness identifications in S.M.’s attack. He 

argues that Ms. Shaw’s in-court identification was flawed because, after she had identified 

Bass in a photo lineup, a detective indicated to Ms. Shaw that she had chosen the suspect. 

Bass’s argument does not change the fact that Ms. Shaw unequivocally, positively 

identified Bass during the initial photo lineup, and gave a detailed description of him at 

trial. 

Moreover, Bass argues that Mr. Reynolds’s photo lineup identification could not be 

relied upon because Mr. Reynolds only had an obstructed view of the suspect through a 

bathroom stall and because a detective testified that he believed Mr. Reynolds was under 

the impression that the suspect’s photo would be in the photo lineup. But the jury was 

aware of these facts. Mr. Reynolds acknowledged he had an obstructed view,183 and the 

182 Id. at A268 (A.S. Trial Test. at B16:18–19). She confirmed the color was “very unusual.” Id. 

at A245 (A.S. Trial Test. at 139:14–15); Super. Ct. Op., 2022 WL 2093956, at *3 n.63 (“A.S. 

testified the shoes were the same unusual gray color and slip-on, but the shoes at trial were a dull 

leather and not the suede she remembered from her attack.”).

183 The following testimony was taken: 

Q: When you went through and picked this out, did you state to the police officer 

that you definitely recognized the person or that it just – the person you picked, in 

your own estimation, had a similar type feature?

A: I said that the forehead looked similar. 
64

detective did not say why he had such an impression, denying that he told Mr. Reynolds 

that Bass was the suspect or that there was a photo of him in the lineup.184 Bass also points 

out that Mr. Reynolds failed to identify Bass’s shoes as those of the man in the bathroom 

stall on the day of the attack. Still, Mr. Reynolds testified that they “looked like the same 

shoes,” and at the very least, the testimony corroborates that the attacker wore gray dress 

shoes, like Bass.185 

Bass’s trial counsel cross-examined the witnesses regarding their identifications. 

And in each case, the jury was free to make credibility determinations as to the 

identification evidence put forth by each witness. We agree with the Superior Court that 

challenges to any flaws in the identification processes are insufficient to disturb the jury’s 

verdicts. In sum, we agree with the Superior Court that Bass failed to show that the new 

evidence, when considered in the context of all the relevant evidence by a properly 

instructed jury, is such as will probably change the result if a new trial were granted.

Q: Looked similar?

A: Uh-huh. 

Q: But you couldn’t positively say that in fact was the person that you saw?

A: I couldn’t see the person. No. 

Q: Because you didn’t see anything but a couple inches of the top of his head?

A: Right. 

App. to Opening Br. at A396 (Roger P. Reynolds Trial Test. at B142:7–16) (emphasis added). 

184 Id. at A452 (Kenneth J. Castelline Trial Test. at C38:14–16) (“Did you tell him that the suspect 

was Alan Bass or that that particular photograph was one of Alan Bass? No, I did not.”). 

185 Super. Ct. Op., 2022 WL 2093956, at *4; App. to Opening Br. at A394 (Roger P. Reynolds 

Trial Test. at B140:13).
65

V. Conclusion

The revelations about MHC testimony that have come to light since Bass’s trial 

warrant a reviewing court’s serious attention and consideration. We have undertaken such 

a review. In this particular case, we agree that Bass has not met his burden to establish that 

the erroneous testimony offered by Podolak, and the new understanding regarding the 

limits of MHC analysis for individual identification, as indisputably new evidence, create 

a strong inference that Bass is actually innocent. The Superior Court did not abuse its 

discretion when it denied Bass postconviction relief. Thus, this is not the “extraordinary 

case” where the defendant has met his heavy burden to overcome the procedural bar of 

Rule 61(d)(2). Accordingly, we AFFIRM the judgment of the Superior Court.