Friday, November 4, 2016

Phillip Ward: West Virgina: White Elephant case; Discredited serologist Fred Zain: Bulletin: Judge orders new trial for Ward after finding that discredited former state forensic serologist Fred Zain tainted his trial..."Ward was found guilty of killing Carter in 1987 and sentenced to life in prison. Then-serologist Fred Zain testified at Ward’s trial. The state Supreme Court later discredited his work after finding he gave false testimony for more than 10 years about DNA evidence found at crime scenes." Associated Press;

Image result for "white elephant"

In the years since I started publishing this Blog I have become increasingly disturbed by the 'white elephant' in the room: Sheer, unadulterated, willful   misconduct in the criminal justice system - much  of it involving forensic evidence - committed by lab technicians,  pathologists, police officers, prosecutors and others.  Think Annie Dookhan; Think Sonia Farak; Think David Kofoed; Think Charles Smith; Think Ken Anderson;  Think Fred Zain;  I have therefore decided to run this image of a white elephant at the top of every applicable post henceforth, to draw our reader's attention to   what I see as a major problem in all too many criminal justice system's - my own included.  Harold Levy; Publisher: The Charles Smith Blog;
"Reformers have for years recommended that all forensic labs be independent from law enforcement and prosecutorial agencies' and this is a key reform promoted by The Justice Project (2008). But fixing these problems is only half the answer' because half of the wrongful convictions attributed to misleading forensic evidence involved deliberate forensic fraud' evidence tampering' and/or perjury.
From "The Elephant in the Crime Lab," by co-authored by Sheila Berry and Larry Ytuarte; Forensic Examiner; Spring, 2009;


"A man convicted of killing a fast-food restaurant manager nearly 30 years ago will get a new trial after a judge ruled that a discredited former state police forensic serologist tainted his trial. The Charleston Gazette-Mail reports ( Cabell County Circuit Judge Alfred Ferguson overturned Phillip Ward’s murder conviction Thursday in Carol Carter’s death, granting Ward a new trial. Ward was found guilty of killing Carter in 1987 and sentenced to life in prison. Then-serologist Fred Zain testified at Ward’s trial. The state Supreme Court later discredited his work after finding he gave false testimony for more than 10 years about DNA evidence found at crime scenes. Ward’s lawyer, Connor Robertson had asked Ferguson to throw out Ward’s conviction last year because of Zain’s role in the case."

See story on decision by prosecutors to appeal the order for a new trial at the link below (Associated Press):  Prosecutors are appealing a decision to grant a new trial to a man who was serving a life sentence for a 1987 murder in Huntington. The Charleston Gazette-Mail ( ) reports prosecutors filed a notice to appeal with West Virginia's Supreme Court. The notice seeks to reverse Cabell Circuit Judge Alfred Ferguson's order and reinstate Phillip Ward's first-degree murder conviction and sentence of life in prison without possibility of parole. Prosecutors say the judge abused his discretion when he granted the new trial, based on testimony from former West Virginia State Police serologist Fred Zain. Prosecutors say Zain's testimony was "completely litigated." Attorney Connor Robertson says it's unfortunate the prosecutors believe trials "tainted with false and perjured testimony" are acceptable. Ward has spent nearly 30 years in prison for Carol Carter's murder."

See Wikipedia report on discredited forensic serologist Fred Zain at the link below: "Frederick Salem Zain (April 14, 1951 - December 2, 2002)[1][2] was a forensic laboratory technician in West Virginia and Bexar County, Texas who falsified DNA profiling results to obtain convictions. Background: Zain was hired as a chemist in the West Virginia state crime lab in 1977,[2] with the rank of trooper in the West Virginia State Police, which ran the lab. He eventually rose to director of the serology department in the state Department of Public Safety.[3] It was later established that Zain had gained his position in the serology department on false credentials. He claimed to have graduated from West Virginia State College (now West Virginia State University) with a major in biology and a minor in chemistry. He had indeed majored in biology, but had graduated with a C average. He had never minored in chemistry, but had taken a few chemistry courses, all of which he either flunked or barely passed. He had also flunked an FBI course in forensic science. Nonetheless, no one checked his background.[4][5] Early on, Zain gained a reputation for being able to solve extremely difficult cases, and was looked on as a "god" by West Virginia district attorneys.[2] His reputation was such that prosecutors throughout the country wanted to use him as an expert witness.[5] There were problems on the horizon, but Zain's supervisors chose to ignore them. In 1985, FBI Laboratory director James Greer told the state police that Zain had failed basic courses in serology and testing bloodstains. No corrective action was taken.[2] Later that year, two workers claimed to have seen Zain record results from blank test plates. However, these complaints were not taken seriously because it was well known the workers and Zain didn't get along well.[4] Zain also gained a reputation for being very "pro-prosecution."[3 In 1989, Zain became chief of physical evidence at the Bexar County medical examiner's office. However, West Virginia prosecutors continued to call upon him because his results appeared to be more favorable than others.[4] West Virginia work discredited: In 1987, Glen Woodall was convicted of a series of grisly felonies at Huntington Mall, including two cases of sexual assault, principally on Zain's testimony regarding semen from one of the victims. Woodall was sentenced to 335 years in prison. However, in 1988, DNA testing—the first ever admitted as evidence at the state level in the United States—proved conclusively that Woodall was innocent, and the conviction was thrown out. Woodall's defense team conducted its own tests, which determined that Zain had used flawed blood-typing methods in tying the semen to Woodall. More seriously, it appeared that Zain had initially determined a piece of hair was unidentifiable pubic hair, but later changed his identification to hair from Woodall's beard.[5][6] On that basis, Woodall was freed in 1992. Woodall subsequently sued the state for false imprisonment and won a $1 million settlement.[3] At the request of the state police, Kanawha County Prosecutor William Forbes began a criminal investigation. Forbes was so disturbed by what he found that he asked the Supreme Court of Appeals of West Virginia to appoint a special judge and a panel of lawyers and scientists to investigate the serology department.[6] On November 4, 1993, Senior Circuit Court Judge James Holliday issued a report finding that Zain had engaged in a staggering litany of misconduct and outright fraud. According to the report, Zain had misstated evidence, falsified lab results and reported scientifically implausible results that may have resulted in as many as 134 people being wrongfully convicted. Holliday found that Zain's misconduct was so egregious that any testimony offered by Zain should be presumed as prima facie "invalid, unreliable, and inadmissible." It also found serious deficiencies in the serology division's quality-control procedures. The Supreme Court unanimously accepted Holliday's report on November 12, calling Zain's actions "egregious violations of the right of a defendant to a fair trial" and a "corruption of our legal system."[3][6]Further investigation: An investigation in Texas found that while working with the Bexar County medical examiner's office, Zain had engaged in misconduct and fraud that may have resulted in as many as 180 wrongful convictions.[7] As in West Virginia, the Texas investigation found numerous instances of Zain filing reports on tests that had never even been done, reporting negative results as positive, and describing inconclusive results as conclusive.[7] Bexar County fired him after his misconduct in West Virginia came to light. Reviews over the cases he presided led to dropped charges and overturned convictions in multiple cases in West Virginia and Texas. West Virginia alone ended up paying out a combined total of $6.5 million to settle lawsuits by people who had been wrongfully convicted due to Zain.[8] Zain was charged with fraud, but his trial was put on indefinite hold after he was diagnosed with liver cancer. In 2001, he was charged on four counts of obtaining money under false pretenses, but the jury deadlocked. A new fraud trial was later scheduled for July 2003. In December 2002, Zain succumbed to his liver cancer and died in his Ormond Beach, Florida home."